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Digital inheritance in inheritance law – Facebook and (no) an end


Oberberg-Aktuell informs about legal issues in this section – The service is presented by Fincke Attorneys at Law Bergneustadt – This time it’s about the digital estate.

By lawyer Andreas Günther, specialist lawyer for inheritance and family law.

In today’s RechtEck we are once again looking at the digital legacy and the heirs’ access to the deceased’s social media accounts.

We have already discussed the initial case several times in our column: It was about the tragic death of a schoolgirl. The parents wanted Facebook to access their daughter’s user account. Facebook has refused to do so. The parents then sued the Berlin Regional Court.

By – by the Federal Court of Justice (judgment of July 12, 2018 – Az. III ZR 183/17) – which became legally binding judgment of the Berlin Regional Court of December 17, 2015, the operator of the platform has been sentenced to give parents as heirs access to the full user account and to grant her daughter’s communication content contained therein.

The internet giant refused to have full access. Instead, he then sent the mother of the deceased a USB stick with a PDF file of more than 14,000 (!) Pages which, according to him, contains a copy of the data read from the account held by the deceased.

However, the mother demanded full access to the actual account here – i.e. internet access with a user name and password in order to be able to take note of the user account itself and its contents in the same way as the original authorized user.

In contrast, Facebook continued to block itself as the operator of the account. Now the mother is applying for foreclosure. This in the form of a so-called penalty payment. At the request of the parent company, the LG Berlin imposed a fine of € 10,000 on the group for failure to meet its obligations from the judgment of December 17, 2015. The Berlin Regional Court overturned the regional court’s decision on Facebook’s immediate complaint and rejected the mother’s application for a coercive measure. The mother’s legal complaint, approved by the KG Berlin, was directed against this and so the case ended up again before the BGH.

The 3rd Senate of the BGH has now taken a clear position. By resolution of On August 27, 2020 – for file number III ZB 30/20 – he obliged Facebook to allow full access to the user account. He explains, among other things:

“The transfer of the USB stick with an extensive PDF file did not grant full access to the user account. The PDF file does not completely depict the user account. The latter requires not only the presentation of the account’s content, but also the opening of all its functionalities – with the exception of those relating to its active continued use – and the German language in which the user account was kept in accordance with the contract during the life of the testator. The file submitted by the obligee does not meet these requirements. “

It is to be hoped that Facebook will also accept this judgment in other cases in the future. Since “we” are becoming more and more “digital”, it is important to also think about the digital legacy in a will or inheritance contract. Just imagine the effort if you have a Bitcoin depository and nothing is regulated. From whom and where should your heirs obtain access to the virtual account? Contact us.

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