This case before the Kammergericht (higher regional court, abbreviated KG) in Berlin (reference number 21 U 9/16) is a second-instance court decision that was decided on 31 May 2017 in favour of the defendant, Facebook, who were denying parents access to the social media account of their deceased daughter. This ruling, together with its first instance, was the first German court case to consider matters of digital legacy. It left questions of inheritance law open, relying instead on telecommunications secrecy.
Facts
The claimant was the mother of a fifteen-year-old girl who died in December 2012 under as yet unexplained circumstances by colliding with an underground train. She and the father are the girl's heirs.
The defendant is the social network Facebook, where the daughter had an account since January 2011 with the consent of her parents.
The claimant wished to find information about her daughter's death through the deceased's Facebook account, allegedly having previously received the password from the girl. This proved fruitless, as Facebook memorialised the account, making it impossible to log on.
The claimant thus sought to get access to the account and the communications it contained.
First Instance
Before this, the case was considered before the Landgericht (regional court) in Berlin (reference number 20 O 172/15).
The Landgericht ruled in favour of the claimant and ordered Facebook to grant access to the daughter's account. This decision was subsequently overturned by the Kammergericht.
Findings
The court dismissed the claim.
Inheritance Law
In Germany, heirs universally succeed all assets of the deceased, section 1922 Civil Code (Bürgerliches Gesetzbuch).
The court followed academic commentators in holding that generally the contract a social media account is based on can be inherited by way of succession, so an heir could take the place of the deceased as the account's “owner”; a claim under section 1922 Civil Code is generally possible.
The Kammergericht upheld the Landgericht’s assessment that Facebook's terms and conditions, being too vague, did not make the account noninheritable. The help pages concerned with memorialised accounts together with the terms and conditions do show that Facebook only wishes to actively offer its services to the person who opened the account; this does not however preclude a passive right to read and access stored data. The court also upheld that the impossibility of inheritance was not intrinsic to the contract. Furthermore, Facebook does not have special confidentiality obligations comparable to doctors or lawyers.
However, there was found to be no clarity on whether valueless, very personal interests (such as the communications in a social media account) are included in universal succession. Rather, items in the succession need to be some form of property of the deceased; differentiating between messages of very personal interest and such with some relation to property is difficult in practice. After accounting for both sides of the argument, citing various sources of literature, the Kammergericht left the question open.
Telecommunications Secrecy Law
The court goes on to state that the questions of inheritance do not need to be answered definitively as the defendant mustn’t share its data with the claimant due to telecommunications secrecy, which is entrenched in section 88(3) Telecommunications Act (Telekommunikationsgesetz); thus, the claim cannot be granted. Section 88 Telecommunications Act is identical in content to the telecommunications secrecy in the Basic Law (Grundgesetz), the German constitution, but applies to private entities instead of the state.
Application
Facebook as the provider of the social media network is subject to § 88 Telecommunications Act, at least when a user shares or messages with others.
The defendant stated that it is exempt from application as the internet provider is responsible for signal transmission. The court did not accept this, citing a case decided by an administrative court (Verwaltungsgericht) in Cologne in 2015 (Verwaltungsgericht Köln – 11.11.2015 – 21 K 450/15), which applied telecommunications law to the email service Gmail. The Kammergericht agreed with the court's reasoning that signal transmission can be ascribed to a communication provider, based on a court decision of the European Court of Justice (C-475/12 – 30/04/2014).