In a landmark ruling, Germany’s highest court has allowed two parents to inherit their deceased daughter’s Facebook account and messages. So, what does this mean for our right to privacy?
The court ruled in favour of the parents, who wanted to determine whether their 15-year-old daughter’s death was a suicide or accidental (she was killed by an underground train in 2012). Previously, privacy concerns meant that social media accounts remained locked – even after someone’s death. The parents argued that accessing their daughter’s Facebook account could help provide them with some answers.
The court agreed, ruling that digital content, such as a social media account, is equivalent to diaries or letters and can, therefore, be inherited by the owner’s legal heirs. Facebook argued that the move could erode our right to privacy. However, German privacy campaigners disagreed, pointing out that this would help regulate the movement of personal data.
So, should we be able to access the social media accounts of deceased relatives?
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Speaking to Reuters, a court spokesperson said; “today’s verdict also affects other social media accounts, not just Facebook, but Instagram and so on. So it’s a verdict with very far-reaching consequences.”
The ruling comes just months after the introduction of data protection legislation (the GDPR). It also follows on the heels of Facebook’s personal data leak to Cambridge Analytica, which affected up to 87 million users.
Today’s verdict also affects other social media accounts, not just Facebook, but Instagram and so on. It’s a verdict with very far-reaching consequences.
Privacy is an important human right, and is mentioned explicitly in Article 8 of the Human Rights Convention. It protects our right to a “private and family life, home and correspondence” from unreasonable government interference. However, many German privacy campaigners supported the court’s ruling, arguing that access to personal data by state intelligence agencies was of greater concern.
“While the parents of the deceased had to spend years litigating to read their daughter’s messages, the National Security Agency and the Federal Intelligence Service would only need a few mouse clicks,” stated Ulf Buermeyer, the head of the Society for Civil Rights in Berlin.
An Erosion of Privacy Rights?
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Facebook has denied the family access to their daughter’s data since her death in 2012, citing their current policy of memorialising the profiles of deceased users. The company believes that allowing relatives access to private accounts (as was the case in the recent ruling) would lead to an erosion of privacy rights for users after their death.
While we empathise with the family […] at the same time, Facebook accounts are used for a personal exchange between individuals which we have a duty to protect.
The site currently provides a “legacy contact,” where a designated user, such as a friend or family member, can make minor changes to a profile. This includes options such as selecting public photos and leaving messages. Alternatively, the contact can choose to shut down the account. The idea isn’t unique to Facebook, with Instagram offering a similar commemorative feature.
In light of the ruling, Facebook issued a statement saying that “while we respectfully disagree with today’s decision…the lengthy process shows how complex the issue under discussion is.” The company added that while “we empathise with the family […] at the same time, Facebook accounts are used for a personal exchange between individuals which we have a duty to protect.”
Digital Remains Around the World
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As with most issues relating to online privacy and digital rights, the nature of ‘digital remains’ is contentious. Around 525,000 people die in the UK each year, with a growing number of the dead possessing online accounts. However, existing laws rarely account for a deceased person’s digital assets.
The UK currently lacks clear legislation on this issue, with the question of ownership likely to be filed under intellectual property laws, rather than inheritance. This is largely due to lingering questions about who actually owns your data.
Meanwhile, many American states have started to introduce laws that tackle the question of digital inheritance. However, almost a third of them still have no legal basis for it, while others, such as Connecticut, only acknowledge emails.
In October 2017, a group of lawyers began to pressure the European Union to introduce laws on digital inheritance. But, as of yet, there are no laws regarding if or when a company should hand over an individual’s data to a chosen heir.
What are the Policies for Other Sites?
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Many internet-based companies have begun to introduce policies that deal with deceased users – though there is still a long way to go. Twitter currently has no option for a “legacy contact,” with user profiles continuing to exist after death. However, a user’s next of kin can contact the site with proof of death to have the account shut down. Yahoo is similarly restrictive in its practices. While the next of kin can issue a request for Yahoo accounts to be closed after death, there are no other options to manage digital remains on this platform.
By comparison, Google offers a more straightforward approach. The company allows users to operate a tool called the Inactive Account Manager – this assigns contacts who will be notified after an account has remained inactive for a designated period of time. These contacts can then share certain types of data, such as emails and Google Drive files. Any data a user does not want shared will be deleted.
Microsoft, meanwhile, offers a ‘Next of Kin’ process. After the account owner’s death, the next of kin can send an email to the company, with proof of death attached, alongside proof of authority (such as being an executor). Once verified, the company can then share the deceased’s data with the next of kin.
So What’s Next?
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There are a number of possible options as to how we treat digital remains. A study published in Nature earlier this year by the University of Oxford’s Internet Institute (OII) argued that online remains, “should be ‘viewed’ as an extension of the human body, and treated with the same level of care and respect – rather than manipulated for commercial gain.”
The paper identified four ‘digital afterlife industries.’ These are: information management, posthumous messaging, online memorial, and re-creation services (where a person’s digital remains are used to generate new messages in the style of the deceased).
Each framework, argues the OII, could then be appropriately regulated, with firms providing explicit information on how the deceased person’s data is being used and displayed. This would largely mirror how physical remains, such as letters, are currently treated.
However, the future of digital remains is far from clear. While the German ruling doesn’t affect the UK, it demonstrates that the issue isn’t going away.