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

In the first instance, the judge in Berlin ( Landesgericht Berlin ) granted the request. Facebook, on appeal, obtained a reversal of the sentence. The Kammergericht (German Court) made it clear that access to the daughter's account would represent a violation of the expectation of privacy and the confidentiality of communications of the interlocutors. Nevertheless, it recognized that the "rights and obligations related to a contract, such as Facebook, are in principle transferable via inheritance" (MENDES; FRITZ, 2019), although there was still no legal clarity on the topic. However, the BGH, in analysis of the new appeal filed by the parents of the deceased young woman, granted the appellants the right to have access to the account under dispute. To reach such a conclusion, they faced several controversial aspects regarding the discussion of the transmissibility or not of digital content stored on social networks, in a firm and detailed decision. The central point of the decision was the understanding for the transmissibility of the Facebook account to the heirs, with the Karlsruhe Court stating that the digital inheritance is subject to the general regime of successions, by force of the principle of universal succession, therefore, with immediate transmission from the death of the holder (principle of saisine ), except those that are extinguished by the express will of the party or by force of law (MENDES; FRITZ, 2019). The claim that the digital inheritance conflicts with the personality rights of the deceased or third parties, the secrecy of communication, or the protection of personal data was strongly refuted, due to the definition of the nature of the contracts between the platforms and the user. According to the German Court, these are contractual relationships and not personal rights, making an important distinction between the contract signed between the user and the platform and the content itself of the digital account, which is of a very personal nature, as highlighted by Mendes and Fritz (2019). To this end, the contract is related to duties of performance, in which the networks are obligated to make available the communication platform, the publication of content and permission to access such content, a service provided indistinctly to all users and not in a personalized manner. The personal nature would be only in the sense that the account holder can send and publish the contents of his account, which does not prevent the transmission of this content. This construction made it possible to rule out the argument of the non-transmissibility of the digital inheritance, based on the protection of the deceased's privacy sphere, since the obligatory relationships are transmitted with the death, and the prohibitive clauses contained in the terms of use are considered abusive and, therefore, null and void, due to the confrontation and emptying of the rules of universal succession. The German Court also pointed out that such understanding allows the control of legality of the terms of use, according to objective good faith and pre-existing legal norms (MENDES; FRITZ, 2019). It is also important to mention that the decision departed from the understanding that only economic contents should be transmitted, because German law, according to the German court, makes no distinction between off-balance sheet inheritance and patrimonial inheritance. This important decision, which is serving as a parameter for European law, may also guide the discussion in Brazil. Brazilian law is very similar to German law, except that here only property is automatically transferred upon death, and the transfer of non-economic assets is only possible by last will disposition - and, therefore, the principle of saisine , as set forth in art. 1.784 of the Brazilian Civil Code, is inapplicable. Understanding the legal nature of the contracts signed between users and digital platform as obligatory relationships, in fact, seems the most correct. With submission to the rules of the Brazilian Consumer Protection Code (Law no. 8.078/90), such contracts should have restrictive clauses of right highlighted and, depending on the content, be considered abusive. However, since the account itself is economically assessable and its contents may contain data of a financial nature, it cannot be ignored that much of this data concerns intimate aspects. In this case, the transmission of the entire account may infringe on most personal rights. On the other hand, the distinction of content may bring practical challenges, such as the difficulty of identifying and correctly classifying digital assets, as well as the legitimacy of who should do it - a named third party or the executor? It would be interesting if the user himself would indicate who will take care of the account after his death, should he choose to do so. But when this is not done, the future law cannot fail to provide who will have this legitimacy. Therefore, it is necessary to define in Brazil, in case it is understood by the transmissibility of the digital content and, in the absence of last will disposition, if it will be considered as a universality of goods or if there will be a division of its content, under penalty of violation of the general rule of legitimate succession, permissive only of the transmission of patrimonial property and of serious violations to personal property. Therefore, it’s believed that the constant dialog between the protection of property and the protection of very personal rights is salutary, remembering the tripartite existence of property in: property, mixed property, and very personal property, giving the appropriate treatment to each of them, without forgetting Volume XXII Issue IV Version I 8 ( ) Global Journal of Human Social Science - Year 2022 © 2022 Global Journals A Succession of Digital Rights in Brazil: In Search of Appropriate Legal Treatment