Inheritance of the Social Media Accounts in Poland

Abstract

The challenges for the existing legal framework, entailed by the Internet revolution, to a growing extent tackle also on the problems of inheritance law. The Bundesgerichtshof’s decision of 12 July 2018 (III ZR 183/17) serves as a clear epitome of the complexity of questions triggered by the increasing transfer of private and market activity into the digital realm. The problem of inheritability of digital assets consists of at least three more particular dimensions. (a) Above all, it is the issue of getting access to the deceased’s account – especially, to its publicly unavailable content. By answering this question, BGH tackled also on two other dimensions of the problem. (b) As has been implicitly claimed in the judgment, the question of inheritance of an account is also interconnected with succession over particular assets stored on this account. In particular, access to an account may be a necessary prerequisite for exercising entitlements over particular assets, e.g. to download an item subjected to one’s intellectual property right, such as a photograph or a video recording. (c) The problem of digital inheritance exceeds also beyond the traditional domain of private law succession rules and constitutes a compound nexus, which combines elements of inheritance, contract, and public law (in the latter regard e.g. privacy and data protection). Observed from the Polish perspective, the judgment opens a new interesting chapter in the discussion over the concept and legal framework of ‘digital inheritance’, initiated a few years ago and encompassing so far several contributions that attempt to incorporate this notion into the existing schemes of private law. The BGH judgment brought the issue into wider public attention and triggered media coverage. The matter still lacks, however, a direct voice of Polish courts. From this perspective, the decision of BGH, along with previous US case-law, may provide a clear point of reference for the Polish legal system. To discuss its relevance, the following observations will focus on the issues related to a particular fraction of digital assets – i.e. the accounts on online platforms and the items stored at them by them by users. In major part, these remarks may be referred also to post-mortem fate of other types of a digital assets.