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

in these Terms removes the rights you have to the content itself." A similar provision appears in YouTube's terms of service: " You retain ownership rights to your Content. However, you are required to grant certain rights to YouTube and other users of the Service." During life, the ownership is recognized in this term as belonging to the user; however, when it comes to the same verification of ownership after the user's death, one often finds clauses providing for the automatic termination of the account or its transformation into a memorial account. Instagram transforms the user's account into a memorial account when informed of the account holder's death. Facebook, on the other hand, has expanded the regulation of this issue, giving account holders the right to choose the fate of their account after their death. Google, the owner of YouTube, has created a so-called account manager, which allows the user to define what will be done with the data in case of death, allowing the deletion of the account or the sharing of some data with someone trusted. In general, what is noticeable is that the terms of use and conditions of online service providers have changed to allow users to define the fate of their data in case of death. However, when this is not done, the accounts will be deleted or turned into memorials, making it impossible to transfer their content, which characterizes a broad power of digital platforms over these assets. Given the above, the question is: is the already existing civil regulation sufficient to invalidate the prohibitive clauses contained in these terms of use or should specific laws arise to account for these contradictions between the user's need for protection and the interests of digital service providers? The second answer seems to be the correct one. In this sense, some countries have already advanced, feeling this need, which may guide the discussions in Brazil. V. T he delicate Q uestion of the T ransmission of D igital A ssets: I n S earch of G uidelines, based on F oreign E xperiences As seen above, under the current Brazilian legislation, only patrimonial assets are transmitted by hereditary succession, while non-property rights may be transmitted/disciplined post-mortem by means of a last will disposition. The testamentary succession gains, in the meantime, important relevance, since it allows the prediction of transmission of any digital asset, in addition to ensuring the desire of the holder of these assets, who may choose, even, for the non- transferability of accounts and contents or goods without economic nature. Wills, although not rooted in Brazilian culture, are an important mechanism to enforce the holder's will regarding the destination of his or her assets. Succession planning, so much discussed at the moment, can and must include virtual assets. It is necessary to make people and legal professionals aware of the importance of expressing the will about the destination of e-mail accounts, Whatsapp conversations, social or professional network accounts in general, and any other digital assets. The lack of custom regarding the will or even the difficulties and costs related to the formalities required to make it in the form of a public instrument can be supplanted by other valid forms of last will disposition. One of these mechanisms is the codicil, an old institute provided in the Brazilian Civil Code, in art. 1.881, which ensures the possibility of establishing provisions of the funeral act and donations of small value. An expansion of its content is part of Bill no. 5.820/19, which is in progress in the House of Representatives, proposing the modification of this article, so that the destination of digital assets through codicil is also contemplated. A curious fact is that the text allows, in addition to the will expressed in writing, that the will can also be recorded in a digital sound and image system, as long as some requirements are met, such as the declaration of the date of the act and the presence of two witnesses, if there is a declaration with patrimonial content. Specifically regarding digital assets, the legal literature also speaks of a digital will. Despite the name, it is a digital document, without the formalities required for a will, for provisions about intangible, non-analog assets. (LARA, 2016). Therefore, the user has several means to express his will regarding the digital assets, such as making a will or codicil, appointing someone he trusts to execute his recommendations upon his death; using the service provider’s own terms of use to leave someone appointed; or electing digital account managers, made available by the platforms. These are companies created for the management of the digital collection. Regarding this last possibility, it should be noted that there is no specific legal protection in the Brazilian legal system to ensure the compliance and effectiveness of the provisions made through these digital contracts - digital will - especially if these companies cease to exist, according to Font and Boff (2019, p. 36). Authors such as Herrera (2018, p. 7) also challenge the use and validity of instruments not provided by law, warning of the possibility of conflicts about the temporal or functional prevalence of the various regulations, in addition to the fractionation of succession. Volume XXII Issue IV Version I 6 ( ) Global Journal of Human Social Science - Year 2022 © 2022 Global Journals A Succession of Digital Rights in Brazil: In Search of Appropriate Legal Treatment