In 2012 a 15-year-old girl was killed when she was hit by a train in the Berlin metro. Not knowing whether the death of her daughter was suicide or an accident, her mother decided to log on to her daughter’s Facebook account and read her messages in the hope that this would resolve the matter.

After attempting unsuccessfully to guess the password, the mother asked Facebook to provide her with her daughter’s details and allow her to read private conversations. Facebook refused to grant access to the account, which had been changed to a “memorialised” account. In effect the account was frozen, and the timeline was being used as a place for friends to share memories of the deceased girl.

This led the mother to file a claim against Facebook with the court in Berlin (Landgericht). In defence of its decision not to allow access to the account, Facebook cited above all the deceased’s right to privacy, the right to privacy of the people she was corresponding with, and the principle of confidentiality of telecommunications.

In 2015, the court granted the mother’s claim, finding that access to a social networking account and the content (including communications content) of the account was part of the estate inherited from the deceased daughter.

The Landgericht based its decision on §1922 BGB (German Civil Code). The court concluded from this provision that the user agreement should pass to the parents of the deceased according to the rule of universal succession. The court also held that contractual relations (in this case between Facebook and a Facebook user) are assets that pass to heirs.

The court also examined the issue of which assets might be part of the estate. It considered whether an item that is not material in nature, such as an account on a social networking site, can be an item in the meaning of inheritance law. The court found that the principle of universal succession applies equally to digital data in an estate, in particular contractual relations with social networking sites such as Facebook.

In addition, the court stated that the Facebook terms of use do not provide for restrictions on use of the site by next of kin, provided that they obtain the user’s consent and the account access details. Any restrictions provided for in the terms of use are intended to ensure user security rather than restrict use.

With regard to the issue of protection of fundamental rights of a decedent, the court ruled that this does not prevent access to the account being granted to parents. The fundamental rights of a decedent guaranteed by Art. 1 of the German Constitution are not put at risk by allowing the girl’s parents access.

The Landgericht held that disclosing a Facebook access code to parents is not necessarily a breach of telecommunications confidentiality (in the meaning of §88(3) of the German Telecommunications Act). Moreover, the court stated that from a data protection standpoint, the possibility of allowing parents of the deceased to log on is not excluded. The court pointed out that because the girl was a minor, it was the parents who were responsible for protection of her rights (including the right to privacy).

Facebook lost the case in the first instance, and appealed in 2016 to the Kammergericht in Berlin. Facebook maintained above all that a “digital estate” cannot be treated in the same way as an “analogue estate.” It argued in particular that data and information left by the deceased on social media is intangible. This estate cannot physically belong to anybody, as it is not a question of data saved on a specific computer or pen drive. The data were located solely on the operator’s server—a crucial distinction. Facebook cited various examples supporting this argument. It stated that digital data differ in nature from a traditional book or letter, and a “digital estate,” for example e-mail or a social media account, is not a material item (and only such an item can be inherited in the estate). In addition, Facebook cited the user’s right to privacy and confidentiality of correspondence. It argued that messages exchanged with friends and relatives are often highly personal.

The decedent’s mother filed a response to the appeal, and on 31 May 2017 the Kammergericht issued a ruling (KG Berlin, Urt. v. 31.05. 2017, Az. 21 U 9/16), upholding Facebook’s arguments and dismissing the suit.

The court concluded that electronic communications are subject to telecommunications confidentiality under the Telecommunications Act, and thus also held that the user’s content in private messages was intended only for specific recipients.

This judgment therefore did not allow the mother to gain access to conversations between her daughter and third parties. In the view of the court, protection of telecommunications confidentiality as provided for in the Telecommunications Act also extends to e-mail and servers of private service providers (according to Federal Constitutional Court case law).

The court gave further reasons, stating that the principle of telecommunications confidentiality also applied to Facebook content and messages sent via the site. The content of conversations is intended solely for specific entities—the sender and the recipient, and therefore a limited group of users.

In the view of the Kammergericht, the obligation to respect the right to telecommunications confidentiality provided for in Art. 10 of the German Constitution includes providers of services. The court acknowledged that the exceptions specified in the Telecommunications Act cannot be grounds for allowing heirs access to a Facebook account. Even by way of an exception, allowing third parties access to correspondence would be contrary to the objective and sense of the act. The prerequisites for limiting telecommunications confidentiality exist where there is a need for technical intervention in a user’s account—enabling technical operations or maintenance of the site. Facebook provided technical services solely to the account holder, and therefore the heirs cannot invoke this argument. And inheritance law does not provide for exceptions to telecommunications confidentiality guaranteed by the act.

The judges also considered a situation where the daughter had provided her Facebook password to her mother, and found that in this case as well, the mother should not have access to the account because that would breach the data and telecommunications confidentiality of the persons who corresponded with the deceased daughter.

The Kammergericht also examined another major issue: whether the content of the Facebook account should be considered part of a person’s estate under the Civil Code. The legal literature is divided over whether heirs can assume the rights and obligations of a decedent under an agreement with a provider of electronic services and whether the rights under the agreement entered into by the user continue to be applicable to the heirs. The predominant view is that in the case of agreements of this special kind, the provisions of law on traditional contracts should apply, and heirs should be able to assume the rights of the decedent. This only applies however to messages from the deceased in material form, which may be part of the estate. The question is what happens to messages in digital form.

The Kammergericht stated that the digital estate might pass to the heirs, but that could not be affirmed definitively. Instead, the judges acknowledged that there are serious inheritance law issues concerning messages and content existing solely in virtual form. On this point, the Kammergericht allowed the mother to file a special appeal with the Federal Court of Justice, and thus we may learn the view of that body on the subject of digital inheritance.

Courts will encounter cases of this nature more and more frequently. For this reason, the appropriate approach to this issue needs to be formulated. On the one hand, protection of privacy and correspondence confidentiality is valuable, while on the other, the next of kin should not be denied the right to learn the truth about how their family member died.

Aleksandra Lisicka