TRANSMISSIBILIDADEDOACERVODIGITALDEQUEMFALECE:EFEITOSDOSDIREITOSDAPERSONALIDADEPROJETADOSPOSTMORTEM

Abstract

The theme of the transmission of the collection due to the death of its holder gains relevancy, in particular because of the immeasurable volume of personal data present in so-called social networks, beyond the unlimited contingent of virtually stored goods such as photographs, messages, testimonials, emails, videos, bank accounts and other category with internet access, flash drives, HD, mobile phones, cameras, among others. Therefore, two bills of law (PL) are being processed in the National Congress: PL 4.099-B, 2012, authored and initiative of Federal Deputy Jorginho Mello, and PL 4,847 / 2012, authored and initiative of Deputy Federal Marcal Filho, to the first. Both are intended to amend, respectively, arts. 1,788 and 1,797 of the Brazilian Civil Code, to deal with aspects of the so-called Digital Heritage. This article intends to critically analyze the question of the so-called digital inheritance, as well as analyzing the above-mentioned Bills. Therefore, the problem to be discussed is to verify the possibility of Brazilian Civil Law permitting or not, in the absence of an express law, the automatic and hereditary transmission, in whole or in part, of the collection of the deceased human person. This article aims to critically analyze the fundamentals of the two theories on the subject and present an answer consistent with the Brazilian constitutional and infraconstitutional order. The first theory to be analyzed affirms that the Brazilian civil code, with the proposed changes, authorizes that all assets of the deceased are transmissible to their heirs, which includes the collection. The second theory only admits the transmissibility of the collection to the heirs if there is previous authorization of the deceased, express or tacit, since the collection contains the projection of their privacy. To answer the problem presented and to understand the meaning and scope of the legal concept of digital inheritance, it is necessary to indicate the methodology and the scientific approach adopted in this article. It clarifies the methodology of procedure and of approach, in a legal- theoretical and practical. The reasoning presented will be of a hermeneutic-dialogical nature, seeking to densify the senses emanating from the various forms of expression of the Law and that found the legal institutes from the imperatives of non-linear historicity. The method used in this article is hermeneutic phenomenological. It was concluded that not all the deceased's collection can be automatically transmitted to the heirs, if they exist, since there are personality rights that maintain post-mortem effects and are transmitted only if the deceased person in life has declared or behaved conclusively in that sense, whose evidence must be brought in the judicial inventory process or in the case of an out-of-court inventory.