In Germany, the Federal Court of Justice (BGH), the highest civil court, decided a case involving the mother of a deceased minor's access to her Facebook account and ordered Facebook to grant access. However, access was then granted by Facebook handing over a USB stick with 14,000 pages of PDF documents. The BGH contradicted this and ordered Facebook to grant access to the account as it was owned by the daughter. However, it took six years for the final judgment to be made.
According to the terms of the contract, all rights and contents of the Apple ID account expire upon death. As with Google, it is possible to name a legacy contact.
The cases show how important it is to regulate your digital legacy. The following are examples of individual items that belong to the digital legacy:
Data on PCs, laptops, smartphones, hard drives and other storage media, including backups on hardware; private email addresses; data in social networks such as Facebook, X (Instagram), LinkedIn, etc.; data in communication services such as WhatsApp, Teams or Zoom; cloud servers such as iCloud or Dropbox; own websites; cryptocurrency wallets; payment services such as online banking; multimedia such as iTunes, Spotify; health insurance apps; and many others.
The principle of universal succession according to Art. 560 of the Swiss Civil Code also applies here. The heir acquires the inheritance as a whole and ownership; limited property rights and possessions as well as claims are transferred to him. Only in exceptional cases does a legal position disappear under inheritance law.
However, the question arises as to what is to be classified as a legal position, since in Switzerland no ownership is established over data. Data is merely protected under the Data Protection Act. Under intellectual property law, certain conditions must be met for information and data to be protected, for example, a "work" must exist in the legal sense. There is therefore no absolute right to data.
In the case of data stored on hardware, i.e. on computer hard drives, USB sticks, and self-burned CD-ROMs, these were "embodied" and became the property of the testator, so that the data stored on them also passed to the heir along with the hardware. Licensing and usage agreements and "accounts" associated with programs do not automatically belong to the testator's property. Here, entitlement is based on the contractual relationships between the testator and the licensors.
As described at the beginning, it is difficult for the heirs to access the data left behind in the case of so-called "accounts". Legally, accounts with email providers, social media, web hosts, cloud servers and various platforms are to be qualified as contractual relationships in which access to the user account is a primary obligation of the provider. In principle, the inheritability of contractual relationships must be affirmed. Exceptions apply in the case of a legal or contractual exclusion or in the case of a highly personal contract. In the case of a contractual exclusion of inheritability, a review of the general terms and conditions (GTC) is unavoidable. Their effectiveness in consumer contracts is questionable. The highly personal nature of the contract for a user account must be denied, the management is purely technical and the communication partners must also expect forwarding. The content of a user account can be highly personal, but here reference is made to the corresponding legal situation as with analogue estates (diaries) that are inherited. In the case of bank accounts, the transfer of confidentiality to the heir(s) is affirmed, but in the case of digital medical records, this is denied. However, the testator can issue a declaration of release from confidentiality in favor of the heirs during his lifetime. Telecommunications secrecy does not restrict inheritance. The Federal Court has already ruled that the FMG does not apply to internet-based services (messengers, social media). The testator's personal rights also do not prevent a user account from being inherited. The Federal Court has denied post-mortem protection of personal rights and speaks of "protection of the memories of relatives." Data protection law does not contain any provisions on data of deceased persons; the right to information under Art. 25 DSG is not inheritable. When using accounts such as iCloud together, a distinction must be made between the internal and external relationship. The admissibility of an inheritance exclusion clause is disputed (BGE 94 II 167, but also Oger ZH, ZH101/2002).
When it comes to crypto-based assets (e.g. Bitcoins) in an estate, it is important to inherit the cryptographic key pair (“wallet”). The “non-custodial wallet” is part of the inheritable assets. However, if the “private key” is missing, there is no way to access the crypto-based estate.
In the case of intellectual creations of the testator, there is agreement with regard to heritability that universal succession also includes intellectual property rights.
In summary, it is advisable to use the estate planning tools offered by providers in the digital sector. As a testator, you can issue a prohibition on deletion, but also a deletion order, subject to the rights of third parties. In any case, it is advisable to seek legal advice on crypto-based assets and intangible goods in last wills and testaments. The authors are happy to help.
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