Skip to content

menu

Reed Smith LLP logo
HomeAboutOur ServicesSubscribeTopicsContact
Search
Close

Technology Law Dispatch

German Federal Supreme Court: Facebook account passes to heirs

By Dr. Alexander Hardinghaus, Ramona Kimmich & Dr. Philipp Süss on 12 July 2018
Print:
Email this postTweet this postLike this postShare this post on LinkedIn

On 12 July 2018, the German Federal Supreme Court (Bundesgerichtshof – “BGH”) ruled that a Facebook user account passes to the user’s heirs (Case no. III ZR 183/17).

This is the first time the BGH has had the opportunity to deal with the provisions of the new EU General Data Protection Regulation 2016/679 (“GDPR”).

While the full judgment has not yet been published, the BGH’s press release of the same date gives some insight into the BGH’s considerations:

  • The heirs of a Facebook user who is deceased (“User”) shall have the right to access the User’s Facebook account. This results from the general inheritance law provisions of the German Civil Code (Bürgerliches Gesetzbuch – “BGB”), pursuant to which the User’s contract with Facebook is transferred by law to the User’s heirs, in particular the fundamental German civil law principle of ‘universal succession’ under Section 1922(1) BGB. In practice, this means that the situation is similar to the one regarding diaries or private letters, the rights to which pass to heirs under Section 1922(1) BGB.
  • Facebook’s contractual obligations to maintain confidentiality are not in conflict with the heirs’ right to access: The BGH focusses on the relevant user account rather than on the relevant User. In the view of the BGH, other Facebook users who have corresponded with the User cannot reasonably expect that their communications will be sent to a specific individual, i.e. the User, only. Rather, they can only demand that Facebook makes their correspondence available solely to the relevant user account to which their communications were directed. Furthermore, other Facebook users cannot reasonably expect that their communications will not be made accessible to third parties.
  • The BGH stresses that the statutory requirement to protect the secrecy of telecommunications, as set out in Section 88 of the German Telecommunications Act (Telekommunikationsgesetz – TKG), is not in conflict with the heirs’ right to demand access. The reason is that the User’s heirs do not qualify as third parties within the meaning of the secrecy of telecommunications.
  • Finally, on the basis that the GDPR does not apply to deceased persons, the BGH clarifies that the GDPR does not prohibit the heirs’ right to access the User’s Facebook account. Furthermore, the BGH takes the view that the transfer of personal data concerning other Facebook users who have corresponded with the User can be legitimised by both Article 6(1)(b) GDPR (“necessary for the performance of a contract”) and Article 6(1)(f) GDPR (“legitimate interests”).
Posted in In the Courts, Social, Mobile, Analytics & Cloud (SMAC)
Tags: BGH, Facebook, GDPR, heirs, secrecy of telecommunications, user account
Photo of Dr. Alexander Hardinghaus Dr. Alexander Hardinghaus
Read more about Dr. Alexander Hardinghaus
Photo of Ramona Kimmich Ramona Kimmich
Read more about Ramona Kimmich
Photo of Dr. Philipp Süss Dr. Philipp Süss
Read more about Dr. Philipp Süss
Related Posts
Department for Digital, Culture, Media and Sport launches consultation on app security
May 16, 2022
Germany’s Federal Constitutional Court provides guidance for assessing claims against hate speech on social media
February 8, 2022
Get your Update on IT & Data Protection Law in our Newsletter (Spring 2021 Edition)
June 7, 2021

Subscribe to Technology Law Dispatch

Updates direct to your inbox
Subscribe by Email

Technology Law Dispatch

View Our Network of Blogs
Published by
Reed Smith LLP logo
RSS Twitter Facebook LinkedIn YouTube
Privacy Policy |Disclaimer

About Our Firm

Reed Smith represents many of the world’s leading companies in complex litigation and other high-stakes disputes, cross-border and other strategic transactions, and crucial regulatory matters.

Read More...

Topics

Archives

Copyright © 2023, Reed Smith LLP. All Rights Reserved.
Law blog design & platform by LexBlog LexBlog Logo