In December 2015, the local district court of Berlin 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).
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, using the proper access data and password (which they had) – but they found themselves unable to gain access because the account had already been ‘memorialized’ by Facebook (a specific function provided by Facebook that freezes and blocks accounts in the case of the user’s death). Facebook had apparently been notified by someone else of the girl’s death. 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.
Frustrated, and desperate for any clues about the girl’s fate, the girl’s parents (acting technically as a community of heirs) decided to sue Facebook in order to force regular access to the deceased’s Facebook account.
The case touched upon several interesting aspects of international civil law and data protection law.
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.
The Berlin court considered itself competent to decide the case according to art. 16 (1) of the EU Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, according to which a consumer may bring proceedings against the other party to a contract either in the courts of the Member State in which that party is domiciled or in the courts for the place where the consumer is domiciled. Because the contractual agreement underlying the use of a Facebook account can be considered a consumer contract, and the deceased had lived in Berlin, the second alternative applied.
The Berlin court furthermore held that according to applicable conflict of law principles, the case could be decided according to German civil law. This follows from art 6 (1) of the Rome I Regulation (Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations, according to which within the EU, a consumer contract and any claims based upon it shall be governed by the law of the country where the consumer has his habitual residence.
The court held that the contractual agreement that a user enters into when signing up for and using Facebook, according to Facebook’s terms of service, can in principle be qualified as a kind of software-as-a-service (SaaS) agreement, with the subject matter of providing access to an online social network with all its qualities and functions. While it may contain elements of typical rental and service agreements, this user agreement can be treated just like any other private contract under the applicable German civil law. And just like (almost) any other private law contract, it can be inherited by the legal successor upon a party’s death (principle of universal succession pursuant to section 1922 of the German Civil Code).
The court held that in effect, a person’s digital estate can and will be treated just like any physical property that passes on to the heirs.
The court held that the Facebook account and its contents are 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.
The court denied that there existed any special privilege for Facebook; Facebook’s position could not be compared to such relations as between a doctor and his patient, or the attorney client privilege, which are specially protected and sanctioned under statutory law, whereas Facebook, strictly speaking, is just like any other service provider.
The court considered the relevant provisions of Facebook’s Memorial terms and conditions to be invalid under German law, because they – unfairly, as the court felt – do not allow an exemption for a deceased person’s heirs to access the account under certain circumstances such as in this case. (German law allows courts to review, scrutinize and dismiss a company’s standard business terms and general terms & conditions under certain circumstances, see sections 305 ff. of the German Civil Code.)
Finally, the court rejected Facebook’s defense that the case would fall under the data protection laws of Ireland, as Facebook Ireland is obviously based there, and according to European data protection laws a company normally has to comply only with the laws of the European Union member country where it is domiciled (section 1 (5) of the GermanFederal Data Protection Act, which includes this fundamental principle of European data protection law). In this respect the court developed a careful and complicated argument which in the end lead it to conclude that as a matter of fact, the actual data processing provided by Facebook is not done by Facebook Ireland but by Facebook Inc. of the U.S.A. – which is obviously not based in a European Union member country, so that this privilege does not apply, which in turn means that the German data protection law applies – which would allow such disclosure as sought in this lawsuit. (That Facebook may be effectively subject to German data protection law in certain cases has been decided previously in 2014 by the superior Berlin Court of Appeals, Kammergericht, Urteil vom 24.01.2014, Az. 5 U 42/12.)
So, in effect, the German court has overruled Facebook’s current policy of simply putting a deceased user’s Facebook account in to ‘memorial’ mode and in particular denying the heirs immediate access to the account.
German court decisions may be enforced throughout the European Union (EU Council Regulation (EC) No 44/2001), so this decision may in principle be enforced against the defendant in this case, Facebook Ireland.
This case may have interesting repercussions not only for Facebook and its users, but also for any other provider of social network services.
The Berlin district court’s decision is not yet final but may be appealed. It may then be brought first before the Berlin court of Appeals (Kammergericht) and, eventually, it may end up with the German Federal Court of Justice (Bundesgerichtshof) to finally decide the relevant questions of law – which are both intriguing as such but may also be of highly practical importance.
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Date: January 2016