Global Journal of Human-Social Science, A: Arts and Humanities, Volume 22 Issue 4

There are those who differentiate digital goods from digital assets, whose concept is broader; while digital goods would be online accounts and content, digital assets would encompass any type of electronic record, such as the so-called cryptocurrencies. In view of the above, there are no conditions to consider the legal nature of either digital goods or digital assets (which for this article will be treated as synonyms) as uniform. In other words, the nature of digital assets must consider the distinction of their contents, therefore, non-analog assets may have a patrimonial, non-patrimonial or mixed nature. This understanding will help in the appropriate legal treatment regarding the study of the causa mortis transmissibility of the so-called digital inheritance. IV. S ervice P roviders and the C ontractual P rovisions of D igital G oods Every time a user decides to join an online service , it is a sine qua non condition for access that the user agrees to the terms of use and services, which are not negotiable. These are general conditions, without any control mechanism, especially with regard to the power exercised by service providers to freely access these accounts and data. Regarding this aspect there are extensive discussions in the search for harmonization between the interests of the user and the interests of the digital platforms. Doubts about the ownership of the digital assets, which is present in the digital platforms, are among them. The central issue of this and other questions resides in the reconciliation between the deficiency of hetero-regulation (state regulation) and contracts, since personal data transformed into digital goods are protected, in the absence of state rules, by the terms contained in these contracts. Moreover, as Loveluck (2019, p. 176) reminds us, the services provided in the virtual environment, also called cyberspace, are sophisticated, covering several territories and jurisdictions, in a complex interaction with multiple actors (individuals, states, economic interests, etc.), and the source codes constitute rules of fact (code is law), which must be carefully articulated with the rules of law, under penalty of having serious violations of fundamental rights. Aware of this, some countries have started to regulate and protect personal data in the digital sphere, among them Brazil, through the General Law of Data Protection (LGPD), although most legislations have not contemplated an important aspect: the protection of data after the user's death. While legislative limbo remains, Rodotá (2008, p. 76) draws attention to the intimate relationship between consent and informational self-determination, highlighting consent as an important alternative existing between regulation and deregulation, further highlighting the difficulty of establishing a sufficient system of prohibition and legislative authorization in order to protect all users' interests. France, for example, seems to have bet on this model of valuing informed consent, by providing, in article 63 of Law no. 2016-1321 - Law "for a Digital Republic" - which also inserted article 40-1, in Law no. 78-17, that any person can exercise the rights of conservation, deletion or communication of their personal data, in addition to appointing a responsible person to carry out their instructions, on their death. And, if no one has been appointed, it confers this legitimacy on the heirs. The French regulation also provides for the possibility of leaving general instructions about the user's personal data or specific instructions. In this case, specific consent is required, which cannot result from the broad approval inserted in the general conditions contained in the terms of use of digital services. Although rather timid, with no provision for digital inheritance in the absence of a last will disposition, the importance attributed in the French regulation to specific and informed consent and to the free exercise of the holder's autonomy regarding the destination of his/her data is noteworthy. It can be seen that, in general, users agree with the terms of services and use, without even reading them. Therefore, the scope and validity of these consents are questioned, increasing the importance of regulation and/or state position in order to establish some limits and dictate important guidelines on this issue. Ensuring this self-determination and informed consent is no simple task; on the contrary, so much so that the text of the Brazilian LGPD states the need for qualified consent for the processing of personal data, establishing for the validity of this agreement the "free, informed and unequivocal manifestation of its holder. Although these guidelines are valid for the user's personal data in life, and there are doubts about their applicability or not after death, they demonstrate that the problem of the succession of digital rights is real and calls attention to the urgent need to be addressed by the law, confirming the questioning already raised above, involving this issue. This is because the lower the state regulation, the greater the power concentrated in the hands of digital service providers, also increasing the complexity of the answer about the ownership of assets. Now, if the content of the terms and conditions of use prevails, there will be several regulations, and the contracts themselves must be observed. In Facebook's terms of use, for example, there is the following provision about the user: "you own the content you create and share on Facebook, and nothing © 2022 Global Journals Volume XXII Issue IV Version I 21 ( ) Global Journal of Human Social Science - Year 2022 A 5 Succession of Digital Rights in Brazil: In Search of Appropriate Legal Treatment