Berlin Court of Appeals: Facebook is not obliged to grant heirs access to a deceased person’s account

Note: This is an update to this author’s earlier article from 2016, see: Berlin District Court: Facebook must grant heirs access to a deceased person’s account (2016).

In December 2015, the Local District Court of Berlin had decreed that Facebook must grant the heirs of a deceased user access to the deceased’s Facebook account (Landgericht Berlin, Urteil vom 17.12.2015, Az. 20 O 172/15). This ruling was overturned by the Berlin Court of Appeals at the end of May 2017 (Kammergericht, Urteil vom 31.05.2017, Az. 21 U 9/16).

The case at hand was about the Facebook account of a 15 year old girl who had died in a tragic accident. The exact circumstances of her death, and whether it may have been a suicide, remained unclear. The girl’s parents (who are her heirs under civil law) had subsequently tried to access the girl’s Facebook profile to look for clues. Facebook, citing its privacy regulations and data protection law, refused to disclose the identity of the person who had initiated the ‘memorialization’, and also refused to re-open the account to grant the parents access. In the trial stage, the Local District Court had ruled that the Facebook account and its contents were not subject to special confidentiality rules and restrictions or overriding considerations of privacy and personality rights or moral rights of the deceased, in relation to the heirs, and thus had to be disclosed.

Facebook appealed this decision.

The Court of Appeals overturned the original ruling. The judges held that Facebook could not be forced to disclose the deceased’s user account to the heirs. The main reasoning was that such disclosure would violate the privacy of telecommunications, which is a fundamental right guaranteed by the German constitution, in particular of the third parties with whom the deceased daughter might have been communicating.

The judges, however, admitted that the decision would be contentious, and they allowed a further appeal to the German Federal Court of Justice (Bundesgerichtshof).

The case touched upon several interesting aspects of international civil law and data protection law, as the law suit was directed against Facebook Ireland as the defendant, as Facebook Ireland is the legal entity which legally acts as the contractual counterpart for any Facebook users from Europe. These aspects are covered in more detail in this author’s earlier article on this matter.

The judgement this is not final at this time, and It remains to be seen whether the claimants will further pursue their case against Facebook. This case may even end up before the German Federal Constitutional Court (Bundesverfassungsgericht), eventually


Marcus Dittmann

Updated: May 2017