Inheritability of Digital Content under Austrian Law

Abstract

The German Supreme Court (Bundesgerichtshof) recently decided that a Facebook account is inheritable. This article examines how Austrian law would deal with this issue and concludes that the result would be identical. According to Section 531 Civil Code (ABGB), only rights and obligations are non-inheritable when the replacement of an obligee or obligor by an heir would change the performance of the obligation. This does not apply to social media or email accounts since an heir can take the deceased’s place without changing the performance that Facebook has to provide to each user. Telecommunications and data protection law does not prevent the heirs’ access eisther because they replace the deceased. Even if digital content is non-inheritable, courts may grant access to an heir who has a compelling reason (e.g., to use digital content as evidence in a lawsuit) that overrides the deceased’s privacy interests. Prior agreements between service providers and the deceased may also limit access and should be carefully scrutinized, but not hastily dismissed as void.