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

This concern is not irrelevant, so much so that in the United States of America, for example, there is an appreciation of the holder's will about the fate of digital assets, similar to that provided in France. However, they go beyond simple permissibility of will disposition, to include an order of observance of the type of instrument handled. In the proposed uniform legal regulation - RUFADAA, Revised Uniform Fiduciary Access to Digital Assets Act - a non-legally binding but nonetheless highly relevant standardizing document, it provides for the establishment of a priority regime for carrying out the disposition of these assets, according to the type of instrument used. The order of priority foreseen there is staggered in three levels: the first is the will expressed by the holder through the tools made available by the digital service providers; secondly, if this instrument has not been used, the will contained in testaments or other authorized forms is fulfilled, and only lastly, the terms of service of the digital service providers apply, followed by any legal guidelines that may exist. Given the above, the best path for the adequate treatment of the destination of digital assets revolves around the appreciation of private autonomy, through last will provisions, ensuring that the holder's will can be fulfilled. Within this idea, the proposal of priority scheduling is able to solve questions regarding functional or temporal prevalence among the various possibilities of regulation, revealing itself as an important alternative for the solution of the issue. In the USA regulation, given its contractual culture, the possibility of digital contracts - digital will, through specialized companies - stands out as a priority. In Brazil, allocating the will and/or codicil as a priority - as already occurs by force of law -, a specific law would come, in sequence, to regulate the limits of the terms of use and digital contracts. For Honorato and Leal (2021, p. 401), if there is both a will and the registration of certain choices made by the user on the digital platform, there would be no need to establish the staggering, since they suggest seeking "the solution that allows the maximum use of the two wills, especially when both do not conflict”. In this specific situation, the solution pointed out is interesting, and the wording of article 1.899 of Brazilina Civil Code, which provides for the observance of the testator's will as interpretative criterion, may also be applied, by analogy. However, when the manifestations are conflicting and the deceased person's will cannot be clearly extracted, the escalation seems important. Of course, the user's autonomy cannot violate legal precepts, under penalty of inapplicability. But what if there is no last will? Are the general rules of succession law sufficient to solve all questions or, on the other hand, would legislating specifically on the subject be the best solution? Believing that the last option is the most viable one, in the search for a legal basis, the analysis of some alternatives found in foreign law can serve as a guide for Brazilian law. Spain, for example, enacted the Ley Orgánica no. 3/2018, de Protección de Datos y Garantía de Derechos Digitales (LOPDGDD), expressly providing for the right to digital inheritance, with respect to accounts and digital content available on social networks, considered an important milestone on the subject in the Ibero-American legal space, as stated in its preamble. We can see from the wording of Article 96 of the aforementioned law that the heirs, spouses, or companions have the legitimacy to decide the fate of the digital content on the web belonging to the deceased, such as deletion of accounts, modification, or its use, if there is no testamentary provision to the contrary or prohibitive state law. In fact, the holder can forbid access to his heirs, as well as allow them to follow his instructions, to request the digital service platforms to delete the account, to delete certain content or to stop its use. All this, provided there is no express local law forbidding such possibilities. Spanish law is organized by states, each of which must regulate in its own way. Although very succinct in what concerns post- mortem digital assets, the Spanish law valued private autonomy, expressly assuring the holder of digital assets the priority to test his will, to be mandatorily fulfilled by the service providers. It was silent, however, about the transmission in the case of intestate succession. Germany, still without specific rules on the succession of digital assets, has judged an important case, applying the transmissibility of digital assets in accordance with the succession rules, without mentioning any legislative gap. On July 12, 2018, the Bundesgerichtshof (BGH III ZR 183/17), a court equivalent to the Brazilian Superior Court of Justice, judged one of the paradigm cases, setting the tone for the solution of several subsequent cases. The leading case involved a dispute fought by the parents of a 15-year-old girl killed in an underground subway station in 2012 against Facebook, whose main claim was the right to access their daughter's virtual account. The justification of the claim was based on two main arguments: one was to understand the cause of the daughter's death, since there were doubts whether it was an accident or a suicide; the other was based on the fact that access to the content could help in the defense of a compensation lawsuit, filed by the public transportation operator, who claimed to feel psychologically shaken because he was involved in the supposed suicide. © 2022 Global Journals Volume XXII Issue IV Version I 21 ( ) Global Journal of Human Social Science - Year 2022 A 7 Succession of Digital Rights in Brazil: In Search of Appropriate Legal Treatment