Посмертная передача цифровых объектов: пользовательское соглашение vs национальное наследственное право

Abstract

The article reviews the issue of the correlation of rules for the postmortem transfer of digital objects established by user agreements of online communities as public agreements on the one hand and national inheritance law on the other hand. Essentially, the problem is that the case law of the Supreme Court of Russia de facto sanctions contractual restriction of inheritance even in cases not directly stipulated by law. Such restriction is imperatively stipulated in the majority of user agreements. The author concludes that three approaches to the determination of the essence of a legal relation between a user being a testator and an Internet community administrator have been currently established in the doctrine and judicial practice. According to the first approach, such a legal relation is a legal relation involving a consumer, thus, the postmortem transfer of rights under a user agreement (and therefore digital objects assigned to the heir's account) should be carried out even notwithstanding any possible contractual limitations. The second approach is based on the conceptualization of such a legal relation as a legal relation not involving a consumer, for which cause contractual limitation of inheritance under a user agreement is possible. The third approach is based on the conceptualization of a separate type of such a legal relation — a legal relation between a player and an online game administrator — as a legal relation concerning the organization of a game and participation in it, the rights whereunder are not subject to judicial protection and thus may be restricted. Based on an analysis of specific cases, legal doctrine and legislation files, the author concludes that there are grounds for the determination of relations between a user being a testator and an Internet community (social media, game platform, etc.) administrator as relations involving a consumer. Therefore, a conclusion is made that the restriction of inheritance rights under a user agreement is inadmissible.