Digital inheritance and the matter of the account

Some social networks provide some technical solution to the matter. Facebook and Google, for instance, insert the chance to choose a person, or more in the case of Google, to which the user can entrust the management of his/her account after his/her death. Facebook gives this possibility only in case of death, whereas Google extends it also in case of a long inactivity due to other causes. As far as Twitter is concerned, it is possible to ask for the erasure cancellation of the user’s account by sending the certificate of death. However, the topic stays controvert and the matter has not been examined from a legal point of view yet. However, the matter remains as it has not been resolved from a legal point of view.

In 2012, Germany had to handle the question after an appeal submitted before the Court of Berlin by the parents of a teenager who wanted to access the account of their daughter after her death. At different judicial levels, there were opposing decisions up to the ruling of the German Federal Court of Justice in 2017 which permitted the parents to access the Facebook account of their teenage daughter.

Neither did the Privacy European Regulation 2016/679 find a solution. At least for Italy, the Regulation was the occasion for a new regulation of the matter.

In fact, the legislator modifying the Italian Privacy Code in compliance with the GDPR, included art. 2-terdecies entitled “Rights concerning death people” that states as follows:

  1. the rights of articles from 15 to 22 of the Regulation referred to personal data of dead people could be exercised by someone who has a personal interest or acts on behalf of the data subject as representative or for personal reason that need protection.
  2. the exercise of the rights at paragraph 1 is not allowed in the cases provided by the law or when, in the limits of the direct offer of the services of the information company, the data subject has expressly forbidden it by a written declaration submitted or communicated to the controller.
  3. The will of the data subject to forbid the exercise of the rights at paragraph 1 should be very clear and has to be specific, free and informed; the prohibition can concern the exercise only of some rights in the mentioned paragraph.
  4. The subject has at any moment the right to revoke or modify the prohibition at paragraphs 2 and 3.
  5. In any case, the prohibition cannot have detrimental effects on the exercise by third parties of the –economic — rights arising from the death of the subject nor the right to defend in Court his/her interests.

Therefore, the rights of dead people can be exercised by third parties unless the data subject had specifically opposed it.

Moreover, for a few years the National Council of Notaries has started a project with Microsoft and Google and published a schedule to enable users to be aware. Among other things it suggests entrusting the access credentials to a trusted person with clear instruction on what to do in case of death by a post-mortem proxy.

In conclusion, the question remains unresolved but, even if there is not a specific ruling, Italy has taken a first step.