Content Regulation / Censorship, Privacy, Data Protection and Retention, Defamation / Reputation
Hegglin v. Google
Closed Expands Expression
Global Freedom of Expression is an academic initiative and therefore, we encourage you to share and republish excerpts of our content so long as they are not used for commercial purposes and you respect the following policy:
Attribution, copyright, and license information for media used by Global Freedom of Expression is available on our Credits page.
The Federal Court of Justice in Germany ruled that the parents of a fatally injured girl were able to inherit her Facebook account. The defendant, Facebook Ireland Ltd., had turned the deceased’s Facebook page into a so-called “memorial page” after being notified of her passing by a third party, which effectively blocked the parents from accessing their daughter’s account even with her login details. While the parents claimed it was essential for them to access their daughter’s Facebook account in order to determine whether she had had suicidal thoughts, Facebook Ireland argued that they could not grant them access due to confidentiality of telecommunications statutes under German law. The Court however disagreed, arguing that under §1922 of the German Civil Code, contracts, such as the user agreement between the deceased girl and Facebook, could be inherited as property.
The plaintiffs in the case were the parents of a deceased 15-year old girl and the defendant was the social media platform Facebook.
On 4 January 2011, the daughter, with her parents permission, set up a user account with Facebook. On 3 December 2011, the daughter was killed by oncoming train, which the parents feared may have been suicide. Pursuant to the accident, the parents tried to log in to their daughter’s Facebook account. However, access was denied, because Facebook had turned their daughter’s profile into a so-called “memorial page” on December 9, 2012, after Facebook received notice of her death by a third party. At this juncture, the content remained on the servers and was visible to a select audience. However, it was impossible to access private data such as photos or messages even with the login details. Moreover, Facebook’s general terms and conditions did not include the policies pertaining to “memorial pages.”
The parents claimed that access to their daughter’s Facebook account was essential in order to determine whether she had suicidal thoughts prior to her death. The parents also required the information in order to defend against claims for damages from the train driver. They further claimed, that their daughter’s private data was inheritable and their interests outweighed possible counterclaims by Facebook regarding confidentiality of telecommunications based on § 88 of the Telekommunikationsgesetz (TKG – telecommunications act).
The court of first instance ruled in favor of the plaintiff parents, but the court of appeals ruled in favor of Facebook. The Federal Court of Justice set aside the decision of the court of appeals and ruled in favor of the plaintiff parents.
The Federal Court of Justice ruled in favor of the plaintiff parents, finding that the parents could demand access to their deceased daughter’s account including its content. The claim was based on the contractual agreement under the law of obligations between the deceased and Facebook, which passed over to the parents upon their daughter’s death.
According to § 1922 of the German Civil Code (Bürgerliches Gesetzbuch, BGB) “upon the death of a person (devolution of an inheritance), that person’s property (inheritance) passes as a whole to one or more other persons (heirs).” This includes claims arising out of contracts, such as the one at hand.
First, the court found that the fact that Facebook turned the account into a “memorial page” did not prevent the inheritability, because the provisions regulating “memorial pages” were not included in the contract between Facebook and its users.
Moreover, the court found that Facebook’s contract rights and obligations were related to a specific account, rather than a certain person, due to users’ right to anonymity. Therefore, the person in possession of log-in details is entitled to access the related account and any private content, including messages. The risk of abuse, for instance if someone uses another name or passes on log-in information, falls on the communication partners. Facebook does not bear the burden of this risk because it is only obliged to pass on messages between accounts and not between specific individuals. Based on this line of argumentation, the court found that neither the type of contract, nor the terms and conditions, preclude the inheritability of the user agreement. It said, that there is no valid reason to treat digital personal rights differently than analog rights (for example letters).
Further, the court found that the confidentiality of telecommunications according to § 88 Telekommunikationsgesetz (TKG – telecommunications act) does not prevent accounts from being inherited. Otherwise the same content could be inherited or not depending on its data carrier, meaning that if content is saved on a server § 88 TKG would prohibit its inheritability, but the same content, if printed out or saved on a flash drive, could be inherited. By ruling that social media accounts can be inherited, the heirs effectively become party of the agreement upon the death of the individual which means Facebook would not be liable for transferring personal data to a third party by giving the heirs access.
The EU General Data Protection Law (GDPR) also did not prevent the heirs from inheriting a user account since it does not extend to the data of deceased individuals, and in the present case, the parents had a legitimate interest of investigating the circumstances surrounding the death of their daughter.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
With this decision the Court strengthens personality rights and finds that Facebook accounts can be inherited.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
Let us know if you notice errors or if the case analysis needs revision.