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Mackenrodt: Digital Inheritance in Germany EuCML 2018, 41

Digital Inheritance in Germany

Mark-Oliver Mackenrodt*

I. Introduction: “digital inheritance” as a collective term

Due to the growing use of internet related products and services, quite often substantial
parts of the personal and economic life of a person are meanwhile to be located in the
digital realm. Accordingly, in the last few years in Germany the topic “digital inheritance”
has increasingly been the subject of academic articles,1 books2 and law commentaries.3
Meanwhile one of the first court cases with a focus on the “digital inheritance” has been
decided by the Landgericht Berlin (LG Berlin)4 as court of first instance and on appeal by the
Kammergericht Berlin (KG Berlin)5 as court of second instance. A further appeal to the
German Supreme Court (Bundesgerichtshof, BGH) has been admitted.

Under German law the term “digital inheritance” does not constitute a special legal
category. Rather, this expression is used as a collective term for legal questions which arise
after the death of a person with regards to her digital assets. Accordingly, the mere use of
the term “digital inheritance” does not imply a recognition of legal rights in favor of a
particular person. The legal treatment of the “digital inheritance” is governed by the same
legal provisions which would similarly be applied to a traditional fact pattern which does not
involve digital assets or data. The legal approach to the “digital inheritance” is the result
from the interaction of different fields of law like for example contract law, the law of
successions, data protection law and the right of personality.

II. The facts of the case before the LG Berlin and the KG Berlin

In the case decided by the LG Berlin and the KG Berlin the plaintiffs are the parents and
heirs of a woman who died at the age of 15 years after a tram accident. During her lifetime,
the underage daughter had handed over the access data to her facebook account to her
mother. However, a few days after the girl's death facebook had been informed by an
anonymous third person about the girl's passing away and blocked the account by putting it
into a so called state of remembrance. This meant that only people who were registered as
“friends” of the deceased woman during her lifetime

Mackenrodt: Digital Inheritance in Germany(EuCML 2018, 41) 42

could continue to access the account and continue to write posts. The parents did not
belong to this group of people. They sued facebook for obtaining access to the user
account of their deceased daughter and to the messages stored within the account. By
gaining access to their deceased daughter’s facebook account the parents were hoping to
obtain information about a possible suicide of their daughter and to avert possible damage
claims by the tram driver.

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The LG Berlin in its decision examined the legal treatment of the “digital inheritance” with
regard to several fields of law and concludes that the parents are entitled to be granted
access to the facebook account of their deceased daughter.

On appeal the KG Berlin as a court of second instance rejected the claim of the plaintiff. The
KG Berlin argued that allowing access of the original account owner's heirs to the facebook
account would be in contradiction to the provisions which protect the secrecy of
telecommunications. Using this argument from telecommunications law the KG Berlin
widely leaves open the substantive treatment of the “digital inheritance” by other fields of
law which had been discussed more thoroughly by the LG Berlin in the first instance. The
KG Berlin admitted an appeal of its decision to the BGH due to the fundamental importance
of the legal issues raised in the case.

III. Further examples for the “digital inheritance”

Beyond the fact pattern which has been at issue before the KG Berlin and the LG Berlin the
collective term “digital inheritance” in a broad sense encompasses all legal relationships of
the deceased person with regard to the his digital assets.6 This includes for example sets
of data, contracts with regard to information technology systems and services, access to
cloud storage or to cloud software, access to e-mails, rights with regards to websites, rights
with regards to a digital currency, access to platforms and contractual relationships and
licensing agreements with regard to online works.7 These positions and data are not merely
of personal or sentimental value. Rather, they may represent considerable economic assets.
This is evident in the case of digital currencies, online tickets to concerts, credit balances
with payment services such as paypal and credit balances from auctions such as ebay.
Also for businesses, the “digital inheritance” can be of vital importance8 and constitute the
core of an enterprise. Companies are increasingly organizing their sales and distribution via
platforms and moving core business units and essential business data into cloud systems.

IV. The law of succession and the “digital inheritance”

The German law of succession is characterized by the principle of universal succession as

laid down in § 1922 I BGB. This means that the deceased person's estate is automatically
passed on as a whole to the heirs. A central prerequisite for the inheritability of digital
assets is that they form part of the estate. As possible obstacles to the inheritability of
digital assets three main issues are being discussed – the intangible character of digital
assets, their possibly personal character and the possibly customized character of the
underlying contractual relationship.

1. The inheritability of intangible goods

The first question is whether the lack of physicality of accounts and of data constitutes an
obstacle to inheritability. If the data have been stored on hardware which had been owned
by the testator, the ownership of the hardware is transferred to the heirs. This transfer of
ownership of the physical good to the heirs goes along with a transfer of the digital goods

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which are stored on the hardware devices like for example e-mails and digital pictures,
files.9

In addition to the ownership of the physical data carrier, a separate legal position may exist
with regards to the digital content.10 For example, there might be a copyright of the
deceased person with regard to digital photos, digital paintings or to a written work which is
saved in a file. German copyright law explicitly stipulates in § 28 UrhG (German copyright
law) that copyrights are inheritable. Therefore, the heirs by way of universal succession
replace the deceased person as copyright owners. Accordingly, the intangible character of
the copyright does not exclude the inheritability.

For data as such, the introduction of a specific intellectual property right by the legislator
has been discussed in academic articles11 and in a recent communication12 by the
European Commission. Currently, data as such are not the subject of an absolute right and,
also, in a more recent communication by the European Commission there seems to be a
shift in focus towards the discussion of access rules.13

However, the existence of an ownership position with regard to data is not a prerequisite for
digital assets to be inheritable. The inheritance law principle of universal succession does
not only apply to ownership positions but also to contractual rights of the deceased
person.14 Access to an account, to a platform or to a cloud storage is based on a
contractual relationship between the provider of the service and the testator. This includes
a contractual claim of the deceased person to obtain access. Such a legal position forms
part of the “estate” within the meaning of § 1922 I BGB and is therefore passed on to the
heirs as according to the principle of universal succession. Therefore, the intangible
character of digital assets does not constitute an obstacle to inheritability.

2. Inheritability of assets which are personal in nature

Further, it is being discussed whether the inheritability of a digital asset like an account
should be excluded because it may contain content which is personal in nature.

Mackenrodt: Digital Inheritance in Germany(EuCML 2018, 41) 43

According to some authors, such accounts, data and e-mails should not be inheritable.15
Otherwise – these authors claim – there would be a conflict with the deceased person's
postmortal general right to protection of personality. Rather, such content should be
forwarded to the next of kin who are administering the deceased person's postmortem right
of personality.16 This view would entail severe practical problems17 if for example e-mails
would need to be separated into different categories depending on their content. E-Mails
with business character would have to be forwarded to the heirs while e-mails of more
personal character would need to be passed on to the next of kin. Furthermore, it would not
necessarily serve to protect the postmortal personality right of the deceased person if an

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internet company – or even a subcontractor – were to be entrusted with such separation of

personal and non-personal e-mails.

According to the predominant view the inheritability of a digital asset is not to be

determined depending on the content of the data or its possible private character.18 In
several instances, German inheritance law does not provide for a special treatment with
regard to objects that have a personal character. Rather, the law explicitly treats personal
objects as part of the estate which are to be passed on to the heirs. For example, § 2047 II
BGB stipulates with regard to the distribution of the heritage among the heirs that
documents referring to the personal circumstances of the testator remain common to the
heirs. Regarding the sale of a heritage as a whole § 2373 II BGB provides that in case of
doubt family papers and family pictures are not considered to be sold. The law thus accepts
in both regulations that even highly personal contents are passed on to the heirs.19 Letters
and diaries, for example, can be read by the heirs without restriction. A different handling of
digital letters and digital diaries is not justified. This view is not in contradiction with the
postmortal right of personality. The postmortal right is administered by the close relatives
of the deceased person. If the close relatives are not identical with the heirs the close
relatives can still take action if for example the testator's life picture is disfigured by the
publication of personal information by the heirs.

The KG Berlin left the question open whether the inheritability of the facebook account is
excluded due to its possibly personal character.20 In this case the parents were not only the
heirs but also the legal guardians of their deceased daughter. Therefore, they were also
administering their deceased daughter's post mortem right of personality.

3. Inheritability of a personalized contract?

The inheritability of a contractual obligation could be excluded if the contractual

relationship is personalized and specifically tailored to the testator. § 399 first example
BGB excludes an assignment of rights if through a change of the contractual party the
content of the contractual performance would be significantly altered.

However, this argument does not exclude the inheritability of a facebook account.21 The
contractual performance of a social network consists in providing the technical
infrastructure of a communication platform. This service is not specifically modified for the
person of the testator. In addition, facebook membership does not even include an identity
check. Furthermore, in the case decided by the LG Berlin and by the KG Berlin the heirs were
not seeking continuation of the account but access to its content.22 Also in the case of
banking accounts, the courts have distinguished between the heirs’ access to the money
and the continuation of the banking account by the heirs.23 Only the latter might be denied
by the bank.

4. Conclusions on inheritance law and the “digital inheritance”

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Summing up, the general principles of German inheritance law do not exclude the
inheritability of digital assets. In particular, the courts have considered the contractual
relationship between the testator and a social network and also the contractual obligation
to grant access as being subject to the inheritance law principle of universal succession.

V. Contract law and the “digital inheritance”

Contract law can also affect the digital estate. After all, only objects which actually form
part of the estate at the time of testator's death are passed on to the heirs. It follows from
the legal principle of freedom of contract that during his lifetime the testator is free to
dispose of his assets.24 Therefore, a contractual agreement between the testator and a
platform with regard to a digital asset or to an account can exclude an asset from the
digital inheritance and, thereby, indirectly exclude its inheritability.

1. Examples for contractual agreements with effect for the estate

In their general terms and conditions platform operators deal with legal issues relating to
the “digital inheritance” in very different ways.25 The terms and conditions of a social

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network do, for example, stipulate that data and content become the property of the
platform as soon as they are posted, or that in the event of death they remain permanently
with the network without the possibility of deletion for the testator and his heirs. For
example, the terms and conditions of a large cloud storage provider state that stored
content is non-transferable and expires upon death. Also, automatic deletions can be
provided for. The general terms and conditions of a large e-mail service try to establish a
non-transferability of the account and a termination of all rights. Some general terms and
conditions reserve for the e-mail provider or the messenger service a right of discretion for
the case in which the cancellation of an account or the deletion of a message is requested.
In this case the will of the internet company would supersede the will of the testator and its
heirs.

Contractual agreements can also seek to create high formal hurdles for the heirs, so that
heirs are being discouraged from taking action or from asserting their rights. For example, a
large e-mail provider requires the submission of a certificate of inheritance. Another e-mail
provider demands that a death certificate is presented and, in addition, a court order which
has to be issued by an Irish court and to be addressed to the e-mail provider. With such
strict formal requirements it is unlikely that heirs successfully seek access to an account
which would also allow them to delete the content and finally close the account.

2. Possible imbalance of interests in a contractual agreement

It should be noted that when drafting their general terms and conditions the internet
companies – like every party to a contract – are guided by her self-interest. If for example,
an account and the data of a deceased person are not or cannot be deleted, a social
network can still continue to generate revenues with the data even if the account is in a

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memorial status. Even an orphaned account can still be profitable and generate internet
traffic. This is, for example, shown by the fact that there are numerous commercial
websites which offer digital services to commemorate deceased persons.26 There, for
example, posts written by friends or even by the deceased themselves during their lifetime
can be published.

The general terms and conditions of a social network can have the effect that the data and
the account of the deceased person remain as a default rule de facto permanently assigned
to the social network and that it can make use of the account and the data in its
commercial self-interest. Also, the deceased person and its heirs may not only be excluded
from obtaining access to the data but de facto also from deleting the data.

At the same time, internet platforms often possess market power and a superior bargaining
position when they impose their general terms and conditions upon the users. Under
German law general terms and conditions are subject to a legal review which is based on
§§ 305 ff. BGB (German Civil Code). These provisions constitute an implementation of the
European Unfair Contract Terms Directive 93/13.27

3. Standards for the legal assessment of the general terms and conditions

According to § 305 c I BGB standardized provisions do not become part of the contract if in
the circumstances are so unusual that the other party to the contract need expect to
encounter them. Further, standardized provisions are invalid according to § 307 I BGB if
contrary to good faith they unreasonably disadvantage the other party. This is to be
assumed if the clause is incompatible with statutory provisions from which it deviates or if
essential rights are limited to an extent that the attainment of the purpose of the contract is
jeopardized.

When assessing agreements which relate to the digital inheritance the question arises
which model of contract typology is to be used as a benchmark. In most cases such
contracts cannot easily be classified as being attributable to a single type of contract.
Rather, they contain multiple elements which are characteristic for several of the contract
types which are regulated by law. Cloud storage services, for example, exhibit elements of
rental agreements and of service agreements. In the case of e-mail services, not only the
storage of messages but also the service of message management is subject of the
contract. Developing a legal standard for assessing contracts of mixed typology is very
complex and requires a normative and objective balancing of the rights and obligations
which are established by the contract.28

A further controversial question gains significance for agreements which relate to the
digital inheritance. The legal assessment of a standardized contract involves a balancing of
the interests of the parties. As the heirs are originally not a party to the agreement, the
question arises whether their interests as a third party can or have to be taken into account.
As to the prevailing opinion the interests of third parties and persons not directly involved in

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the contract are not to be directly considered within the balancing process.29 However,
indirectly interests of third parties play a role if they coincide with the interests of a party to
the contract.30 This can be the case for heirs and testators, for example, with regard to
preserving their property or preserving their data.

There are several aspects why a standardized agreement could be deemed as invalid if it
leads to an automatic deletion of data31 or an account or if it would lead to the existence of
orphaned accounts or it would provide for access to the account at the discretion of the
internet company.32

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In a rental agreement, for example, returning the stored good at termination of the contract
would be a contractual obligation which is essential. Outside the digital context, the heirs
also have to be granted access to a banking account and to a storage room. Quite similarly,
the purpose of a platform or cloud contract consists in storing data and having access.

In addition, a permanent de facto assignment of the orphaned data to the internet

companies would be in conflict with legal principles. It can be concluded from the
provisions on data portability that the lawmaker wanted the user to retain control of his
data and not the internet company. A right to data portability can be found in Article 20 of
the European General Data Protection Regulation33 and in the proposal for a Directive on
certain aspects concerning contracts for the supply of digital content.34 The right to data
portability seeks to enable the user to take his data with him when he terminates a contract
with an internet platform and to encourage him to switch platforms. The provisions serve to
strengthen the position of the user and to promote competition between platforms. A
similar argument can be drawn from the discussion on the introduction of an ownership
right in data.35 The intended beneficiary of such a right would not be the internet company.

4. Contractual requirements regarding the legitimation of heirs

General terms and conditions of internet platform often seek to establish requirements for
the heirs to proof their legal status as heirs when they seek access to an account of the
testator.36 Concerning such legitimation requirements for heirs the case law of the German
Federal Supreme Court (BGH) regarding banks can be invoked.37 With regard to a banking
account the BGH has considered a contractual provision as invalid, which required the heir
to present an inheritance certificate in order to obtain access to the account.38 Even if the
heir could present a public will of the testator and even if there was no doubt as to his
position as a heir the general terms and conditions of the bank did solely allow for a court
issued inheritance certificate as a legitimation.

Quite similarly, the general terms of conditions of online platforms which require heirs who
seek access to present an Irish court order issued to the platform is likely to be invalid.39
Such a requirement would de facto render the heir's access to the heritage more difficult

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and diminish the ability of the testator and of the heir to determine the fate of the
inheritance

In the facebook case decided by the LG Berlin the general terms and conditions stipulated
that any third person could report the account owner's death to facebook and that the
account would then be put into the memorial state. Thereby, the account would irrevocably
be closed for the heirs even if they could establish their status as heirs of the account. The
LG Berlin declared that such a provision does not sufficiently assure that the testator or the
heir can decide on the fate of the account.40

5. Conclusions on contract law and the “digital inheritance”

Contractual agreements can have an influence as to which assets are considered to be part
of the estate the time of the death of the testator. However, general terms and conditions
are subject to a legal review. With regard to legitimation requirements for heirs who want to
claim their heritage existing jurisprudence relating to banking accounts can be invoked.
However, many questions remain unsettled, in particular because in many instances it is
difficult to determine a normative benchmark for balancing the diverging interests.

VI. Secrecy of telecommunications and the “digital inheritance”

Even if according to inheritance law and to the contractual agreements the right of access
to accounts or to data falls into the estate, the rules on the secrecy of telecommunication
may prevent the data from being handed over to the heirs. This is of particular importance
for the “digital inheritance” because data and messages are often not stored on hardware
which is owned by the testator but owned by an internet company and because these digital
assets can only be accessed via the internet. In this event, the protection of the
telecommunication secret may override the legal principles of inheritance law and contract
law.

It is, however, disputed whether the provisions on the secrecy of telecommunications are
applicable with regard to the “digital inheritance”. In the German facebook case the LG
Berlin did not regard the secrecy of telecommunications as an obstacle to granting the heirs
access to their digital inheritance.41 By contrast, the KG Berlin as court of second instance
dismissed the case arguing that the provisions on the secrecy of telecommunications
would apply.42 The KG Berlin admitted an appeal to the BGH (German Supreme Court).

1. The three-step extension of telecommunications secrecy to OTT services

In Germany, the secrecy of telecommunications is protected by article 10 GG (German

Constitution) and by § 88 TKG (German Telecommunications Act). However, with regard to
a scenario like the “digital inheritance” these rules are only applicable through a three step
extension of the interpretation of these provisions.

Firstly, the constitutional right in article 10 GG originally served as a protection against

measures by the government. However, this provision is interpreted as also having a direct
horizontal effect between private parties. Therefore, article 10 GG and § 88 TKG are

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deemed to be applicable to the relationship between a private internet company and the
heirs.

Secondly, the ratio of protecting the secrecy of telecommunications is grounded in the fact
that the technical process of the transmission of the signals is particularly vulnerable to a
secret or open intervention. Accordingly, the provisions on the protection of the secrecy of
telecommunications were originally designed – and have remained unchanged – to protect
against interferences with the technical transmission

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infrastructure. An internet platform like a social network or an e-mail service is to be
categorized as a so called OTT communication service (over the top communication
service).43 These companies are solely offering software services to their customers and
not the transmission of signals through a telecommunications infrastructure which they
own. Rather, internet platforms and their customers are making use of the transmission
lines of a separate company like an internet provider or a telecommunications enterprise.
However, in an earlier case the German Bundesverfassungsgericht (Federal Constitutional
Court)44 has ruled that the provisions on the protection of the telecommunications secrecy
are also applicable to OTT service companies. In this case a state authority had – as part of
criminal proceedings – confiscated e-mails which were saved on the server of an e-mail
service company.

An extensive interpretation of the provisions on telecommunications secrecy has occurred

in a third sense. According to the German Bundesverfassungsgericht the application of
these rules is not limited to the dynamic process of an ongoing telecommunications
process.45 Therefore, also messages which have already been received and read by the
addressee are protected if they are saved on the server of the OTT company even if the
transmission to the addressee has already been completed.

2. Possible exceptions to telecommunications secrecy with regard to the “digital inheritance”

Each of these three ways of extensively interpreting the provisions on the secrecy of
telecommunications has been well established by the case law of the German courts. In the
facebook case which has been decided by the LG Berlin and the KG Berlin these three ways
to extensively interpret the provisions came into play in a cumulative manner. As a
consequence of this cumulated extensive interpretation the provisions on the protection of
telecommunications secrecy were deemed to be applicable to an OTT service provider like
a social network.

However, the LG Berlin – contrary to the KG Berlin in the second instance – found that an
exception was applicable when it comes to forwarding digital assets to the heirs. According
to § 88 III 1 TKG telecommunications service providers are permitted to inform themselves
or others about the content or the circumstances of a communication if this is required for

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the provision of the telecommunications service. The LG Berlin argued that this exception
would be applicable because according to the law of succession the company was – as
part of its business relationship – under a legal obligation to pass the data in the account
on to the heirs.46

The KG Berlin47 rejected this reasoning by pointing to § 88 III 4 TKG This provision contains
an exception to telecommunications secrecy with regard to information about certain
particularly serious criminal offences. If such information can be found the
telecommunications company is under a legal obligation to report these offences to the
prosecution office. The KG Berlin concludes that only this legal duty which is expressly
specified by the TKG would qualify for an exception. By contrast, for the fulfillment of other
legal duties – like the duty to hand over the testator's assets to the heirs – no exception of
the TKG would apply.

VII. Discussion and proposals for the legislator

The dispute over the interpretation of the exception clause to telecommunications secrecy
has, at this point, not yet been decided by the German BGH as the third instance. The
interpretation of the KG Berlin of the provision on telecommunications secrecy has a
blocking effect against granting access of the heirs to the “digital inheritance” even if the
principles of the law of succession and of contract law would require such access. There
are several strands of arguments speaking against the KG Berlin's solution.

1. Contradiction with the principle of universal succession

The interpretation of the provision on telecommunications secrecy seems in contradiction

with the inheritance law principle of universal succession. According to § 1922 BGB the
heirs by law replace the testator and take over all his legal positions and obligations.48
When the heir pursues his legal claim to be handed over the assets of the testator it seems
contradictory to regard the heir as “other person” in the sense of the provision on
telecommunications secrecy.49

2. Inherent limitations of telecommunications secrecy

It should further be taken into account that the principle of telecommunications secrecy is
subject to inherent limitations. The secrecy of telecommunications protects the
confidentiality of the communication process because the communication partners
themselves can only to a limited extent control this process. By contrast,
telecommunications secrecy does not protect the confidential handling of a message by
the recipient. The sender of a message cannot invoke the rules on telecommunications
secrecy in order to prevent the recipient of a message from passing on the message to
third persons. Quite similarly in the field of analogue messages, the sender of a letter
cannot invoke the postal service secret to prevent the letter's recipient from passing on the
letter to third persons.50

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In the case decided by the KG Berlin the underage daughter during their lifetime had passed
on the login data of her account to her mother who was her legal guardian. This situation
should not be dealt with differently as compared to the situation in which the messages
have been printed out or saved on a local data drive and passed on to the mother by the
testator himself or by way of universal succession. A mother on her part is as a legal
guardian under a legal obligation to control and supervise the online activities of her
daughter. German courts have imposed quite strict supervision duties on parents and even
ordered them to regularly study specialist articles in order to be better able to supervise
their underage children's online behavior.51 It could, therefore, be have argued that a person
who sends an online message to an underage person could be presumed to have

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consented to the fact that the messages are read along by and passed on to the legal
guardians.52

In the facebook case the account of the deceased underage daughter was deactivated by
an anonymous third party and there was a concern that the daughter had died as a
consequence of a suicide. The sender of a possibly abusive message could not expect to
be protected by the rules on telecommunications secrecy. For parents, the ruling of the KG
Berlin raises the question whether the mere passing on of login data to parents can be
considered to be a suitable and permissible measure for the prevention of internet typical
dangers for a child.

If a testator does not want that the content of a letter to come to the knowledge of the heirs
he has to destroy the letter. In the case of an electronic message the testator is free to
delete or encrypt the message. In particular if the testator has not expressed such an
intention, it is not the purpose of the rules on telecoms secrecy to take over the role of an
encryption device.

3. Concern about creating orphaned data

The current jurisprudence of the KG Berlin would make it impossible for the heirs to delete
the data or the accounts of the testator. A deletion of the accounts or data would not be in
the interest of the internet platforms, would not be their responsibility and should – as a
default rule – rather be the task of the heirs and not of the internet companies. As a
consequence, the number of orphaned data and orphaned accounts would continually grow
and they would de facto be attributed to the internet platforms who could indefinitely exploit
these assets.

As noted above53 the de facto attribution of orphaned data to internet companies would be
contrary to the emerging legal policy principles for the data economy. The newly created
rules on data portability54 expressly seek to establish a right for users to retrieve their data
from the internet platforms. Further, the current discussion about introducing an ownership

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right in data does expressly not seek to allocate such a right to the platform providers with
regard to the user data.

4. The need for balancing diverging constitutional rights

The KG Berlin in its decision invokes the constitutional basis of the rules on
telecommunications secrecy. However, it is a well-established principle in constitutional law
that the fundamental rights of all parties have to be respected to the highest degree
possible. Accordingly, there should be a balancing between the secrecy of
telecommunications on the one hand and other interests, which are also protected by
constitutional law. For example, entrepreneurial heirs have an interest in continuing the
business activities on electronic supply and sales platforms after the death of a business
owner. Parents have a duty and a right to protect their minors from dangers. As part of their
general right of personality parents have a right to be informed about the circumstances of
their child's death. The current German provisions on telecommunications secrecy in the
TKG leave little room for the judges to undertake a balancing of diverging constitutional
interests.

5. The need for modernization of the existing provisions

It has to be noted that the current German telecommunications provisions on

telecommunications secrecy and its exceptions have in essence been unchanged since
1996 and have originally not been designed with regard to OTT services which are a
comparatively recent phenomenon. As noted above the telecommunications secrecy rules
are applied to OTT services only by virtue of an extensive interpretation of their range of
applicability. The wording of the exceptions in the TKG, by contrast, leaves little room for
interpretation and adaption to OTT services. It would, therefore, be desirable for the
legislator to clarify the role of telecommunications secrecy with regard to OTT services and
more specifically with regard to the “digital inheritance”. The German Lawyers Association
(Deutscher Anwaltverein, DAV) has already back in 2013 presented a proposal to amend the
German rules on telecommunications secrecy.55 The proposed § 88 V TKG would stipulate
an exception to telecommunications secrecy with regard to heirs.

6. Conclusions

In the overall view, many uncertainties still exist in inheritance law and in contract law with
regard to the “digital inheritance” in Germany. The “digital inheritance” is governed by the
general legal provisions and not by a set of rules which has been specially designed.56 The
legal treatment of the “digital inheritance” is determined by provisions from different fields
of law most importantly by the law of succession, contract law and the rules on
telecommunications secrecy. In detail the application of these provisions to the “digital
inheritance” can at this point be regarded as still unsettled. However, in the first court
decisions and in the academic discussion the development of legal principles regarding the
“digital inheritance” has started. As a rule, the “digital inheritance” is subject to the

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fundamental principle of inheritance law of universal succession and has to be passed on

to the heirs.57

Contractual agreements with regard to digital assets are admissible and can diminish the
“digital inheritance”. However, standardized agreements are subject to a legal review. Data
protection law58 and the post mortem right to personality59 are not considered to be an
obstacle to the inheritability of digital assets. With regard to the role of telecommunications
secrecy in recent court decisions a clarification by the lawmaker seems desirable in order
to allow for digital assets to be handed over to the heirs.

Mackenrodt: Digital Inheritance in Germany(EuCML 2018, 41) 48

(Werbeanzeige wird nicht wiedergegeben)

* Dr., Dr., LL.M. (NYU), Attorney at Law (New York), Senior Researcher, Max Planck Institute
for Innovation and Competition, Marstallplatz 1 80539 Munich, Email:
[email protected].

1 See for example Florian Deusch, ‘Digitaler Nachlass – Vererbbarkeit von Nutzerkonten in
sozialen Netzwerken’ (2016) ZEV 189; Stefan Gloser, ‘„Digitaler Erblasser“ und „digitale
Vorsorgefälle“ – Herausforderungen der Online-Welt in der notariellen Praxis – Teil I’ (2016)
MittBayNot 12; Stefan Gloser, ‘„Digitale Vorsorge” in der notariellen Praxis’ (2015) DNotZ 4;
Stephanie Herzog, ‘Der digitale Nachlass ist in der Rechtswirklichkeit angekommen’ (2016)
ErbR 173; Stefan Gloser, ‘Digitaler Nachlass’ (2016) DNotZ 545, 548; Knut Werner Lange /
Marian Holtwiesche, ‘Das digitale Erbe – eine rechtstatsächliche Bestandsaufnahme’
(2016) ErbR 487; Knut Werner Lange / Marian Holtwiesche, ‘Digitaler Nachlass – eine
Herausforderung für Wissenschaft und Praxis (Teil 1)’ (2016) ZErb 125; Knut Werner Lange
/ Marian Holtwiesche, ‘Das digitale Erbe – eine rechtstatsächliche Bestandsaufnahme’
(2016) ErbR 487; Merle Bock, ‘Juristische Implikationen des digitalen Nachlasses’ (2017)
AcP, 370; Christian Alexander, ‘Digitaler Nachlass als Rechtsproblem’ (2016) K&R, 301;
Karin Raude, ‘Der digitale Nachlass in der notariellen Praxis’ (2017) RNotZ 17; Anton Steiner
/ Anna Holzer, ‘Praktische Empfehlungen zum digitalen Nach-lass’ (2015) ZEV 262;
Wolfgang Kuntz, ‘Zugang der Erben zum Facebook-Nutzerkonto’ (2016) FuR 398; Rupprecht
Podszun, ‘Rechtsnachfolge beim digitalen Nachlass’ (2016) GWR 37; Pascal Salomon,
‘„Digitaler Nachlass“; – Möglichkeiten der notariellen Vorsorge’ (2016) NotBZ 324; Marina
Wellenhofer, ‘Erbrecht: Digitaler Nachlass’ (2016) JuS 653.

2 See for example Antonia Kutscher, Der digitale Nachlass, (V&R unipress 2015); Katharina
Seidler, Digitaler Nachlass, (Wolfgang Metzner Verlag 2015); Bräutigam in: Burandt / Rojahn
(eds) Erbrecht (2nd edition 2014), Anhang. Digitaler Nachlass; with a focus on Austrian law:
Jacqueline Gebauer, Digitale Verlassenschaft (AkademikerVerlag 2015).

3 See for example Leipold, in: Münchener Kommentar zum BGB (7th edition 2017) § 1922
para. 24 ff; Müller-Christmann, in: BeckOK BGB (42nd edition 2017) § 1922 para. 99 ff;
Preuß, in: beck-online.Grosskommentar BGB (2017) § 1922 para. 375 ff.; Kunz, in:
Staudinger Kommentar zum BGB (2017) § 1922 para. 594 ff.

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4 Case LG Berlin, 20 O 175/15, 17 December 2015.

5 Case KG Berlin, 21 U 9/16, 31 May 2017, 24.

6 Bräutigam in: Burandt / Rojahn (eds) Erbrecht (2nd edition 2014), Anhang Digitaler
Nachlass, para 3; Karin Raude, ‘Der digitale Nachlass in der notariellen Praxis’ (2017) RNotZ
17, 19; Florian Deusch, ‘Digitales Sterben: Das Erbe im Web 2.0’ (2014) ZEV 2.

7 Further examples can be found with Jacqueline Gebauer, ‘Digitale Verlassenschaft’

(AkademikerVerlag 2015) 69 ff.; Christian Alexander, ‘Digitaler Nachlass als Rechtsproblem’
(2016) K&R 301, 302.

8 Karin Raude, ‘Der digitale Nachlass in der notariellen Praxis’ (2017) RNotZ 17.

9 Christian Alexander, ‘Digitaler Nachlass als Rechtsproblem’ (2016) K&R 301, 303; Karin
Raude, ‘Der digitale Nachlass in der notariellen Praxis’ (2017) RNotZ 17, 19.

10 Stresemann, in: Münchener Kommentar zum BGB (7th edition 2017) § 90 para. 25.

11 An overview of this debate on the creation of an ownership in data and a critical

assessment can for example be found in Josef Drexl ‘Neue Regeln für die Europäische
Datenwirtschaft?’ NZKart (2017) 339, 340 ff.

12 Communication from the Commission to the European Parliament, the Council, the
European Economic and Social Committee and the Committee of the Regions ‘A Digital
Single Market Strategy for Europe’ COM(2015) 192 final, 15, 20. The European Commission
is announcing to (among other topics) address the emerging issue of data ownership. See
also Herbert Zech, ‘Industrie 4.0 – Rechtsrahmen für eine Datenwirtschaft im digitalen
Binnenmarkt’ (2015) GRUR 1151.

13 Communication from the Commission to the European Parliament, the Council, the
European Economic and Social Committee and the Committee of the Regions ‘Building a
European data economy’ COM(2017) 9 final, 8.

14 Leipold, in: Münchener Kommentar zum BGB (7th edition 2017) § 1922 para. 20.

15 Thomas Hoeren, ‘Der Tod und das Internet – Rechtliche Fragen zu Verwendung von E-
Mail und WWW-Acounts nach dem Tode des Inhabers’ (2005) NJW 2113, 2114.

16 Thomas Hoeren, ‘Der Tod und das Internet – Rechtliche Fragen zu Verwendung von E-
Mail und WWW-Acounts nach dem Tode des Inhabers’ (2005) NJW 2113, 2114.

17 Deutscher Anwaltsverein (DAV), Stellungnahme Nr. 34/2013 zum Digitalen Nachlass

(2013), 52.

18 See for example Benedikt Klas / Christine Möhrke-Sobolewski, ‘Digitaler Nachlass –

Erbenschutz trotz Datenschutz’ (2015) NJW 3473, 3474; Christian Solmecke / Thomas
Köbrich / Robin Schmitt, ‘Der digitale Nachlass – haben Erben einen Auskunftsanspruch?
Überblick über den rechtssicheren Umgang mit den Daten von Verstorbenen’ (2015) MMR
291, 291; Pascal Salomon, ‘„Digitaler Nachlass“ – Möglichkeiten der notariellen Vorsorge’
(2016) NotBZ 324, 326; Karin Raude, ‘Der digitale Nachlass in der notariellen Praxis’ (2017)
RNotZ 17, 19; Knut Werner Lange / Marian Holtwiesche, ‘Digitaler Nachlass – eine
Herausforderung für Wissenschaft und Praxis (Teil 1)’ (2016) ZErb 125, 126.

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19 Stefan Gloser, ‘„Digitaler Erblasser“ und „digitale Vorsorgefälle“ – Herausforderungen der

Online-Welt in der notariellen Praxis – Teil I’ (2016) MittBayNot 12, 16; Anton Steiner / Anna
Holzer, ‘Praktische Empfehlungen zum digitalen Nachlass’ (2015) ZEV 262, 263; Stephanie
Herzog, ‘Der digitale Nachlass – ein bisher kaum gesehenes und häufig missverstandenes
Problem’ (2013) NJW 3745 3748; Karin Raude, ‘Der digitale Nachlass in der notariellen
Praxis’ (2017) RNotZ 17, 19; Christian Alexander, ‘Digitaler Nachlass als Rechtsproblem’
(2016) K&R 301, 303.

20 Case KG Berlin, 21 U 9/16, 31 May 2017, 24.

21 Case KG Berlin, 21 U 9/16, 31 May 2017, 20; Knut Werner Lange / Marian Holtwiesche,
‘Digitaler Nachlass – eine Herausforderung für Wissenschaft und Praxis (Teil 1)’ (2016)
ZErb 125, 129 who point to the fact that the social network business is aimed at a high
number of people in a standardized way.

22 This distinction is also made by Stephanie Herzog, ‘Der digitale Nach-lass – ein bisher
kaum gesehenes und häufig missverstandenes Problem’ (2013) NJW 3745, 3749; Stefan
Gloser, ‘„Digitaler Erblasser“ und „digitale Vorsorgefälle“ – Herausforderungen der Online-
Welt in der notariellen Praxis – Teil I’ (2016) MittBayNot 12, 14.

23 The comparison with banking accounts is made by Bräutigam in: Bu-randt / Rojahn (eds)
Erbrecht (2nd edition 2014), Anhang Digitaler Nachlass, para 5.

24 Knut Werner Lange / Marian Holtwiesche, ‘Digitaler Nachlass – eine Herausforderung für
Wissenschaft und Praxis (Teil 1)’ (2016) ZErb 125, 128.

25 Further examples can be found with Constantin Willems, ‘Erben 2.0 – zur Beschränkung
der Rechtsnachfolge in das „digitale Vermögen“’ (2016) ZfPW 494, 496; Knut Werner Lange
/ Marian Holtwiesche, ‘Das digitale Erbe – eine rechtstatsächliche Bestandsaufnahme’
(2016) ErbR 487, 488; Karin Raude, ‘Der digitale Nachlass in der notariellen Praxis’ (2017)
RNotZ 17, 21.

26 An overview of this industry is provided by Mario Martini, ‘Trauer 2.0 – Rechtsfragen

digitaler Formen der Erinnerungskultur’ (2015) GewArch Beilage WiVerw 35.

27 Council Directive (EEC) 93/13 of 5 April 1993 on unfair terms in consumer contracts
[1993] OJ L95/29.

28 For further details see for example Fuchs, in: Ulmer/Brandner/Hensen (ed.), AGB-Recht
(12th edition 2016) § 307 para. 220, 239.

29 Fuchs, in: Ulmer/Brandner/Hensen (ed.), AGB-Recht (12th edition 2016) § 307 para. 133.

30 Wurmnest, in: Münchener Kommentar zum BGB (7th edition 2017) § 307 para. 50.

31 An agreement which provides for an automatic deletion of an account considered as

invalid by many authors, see Karin Raude, ‘Der digitale Nachlass in der notariellen Praxis’
(2017) RNotZ 17, 20; Stefan Gloser, ‘„Digitaler Erblasser“ und „digitale Vorsorgefälle“ –
Herausforderungen der Online-Welt in der notariellen Praxis – Teil I’ (2016) MittBayNot 12,
13; Christian Alexander, ‘Digitaler Nachlass als Rechtsproblem’ (2016) K&R 301, 306; Knut
Werner Lange / Marian Holtwiesche, ‘Digitaler Nachlass – eine Herausforderung für
Wissenschaft und Praxis (Teil 1)’ (2016) ZErb 125, 128; Stephanie Herzog, ‘Der digitale

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Nach-lass – ein bisher kaum gesehenes und häufig missverstandenes Problem’ (2013)
NJW 3745, 3751; Stefan Gloser, ‘Digitaler Nachlass’ (2016) DNotZ 545, 548.

32 A legal assessment of different standardized agreements can be found with Katharina

Seidler, Digitaler Nachlass, (Wolfgang Metzner Verlag, 2015) 143 ff.; Antonia Kutscher, Der
digitale Nachlass (V&R unipress 2015) 116 ff.

33 Regulation (EU) 2016/679 of the European Parliament and the Council of 27 April 2016
on the protection of natural persons with regard tot he processing of personal data and on
the free movement of such data, and repealing Directive 95/64/EC (General Data Protection
Regulation).

34 Proposal for a Directive of the European Parliament and of the Council of 9 December
2015 on certain aspects concerning contracts for the supply of digital content COM(2015)
634 final.

35 For the discussion on a possible data ownership see above IV. 1.

36 For further examples see above V. 1.

37 See also DAV, ‘Stellungnahme Nr. 34/2016 zum digitalen Nachlass’ (2013) 62 f.

38 Case BGH, IX ZR 401/12, 8 October 2013.

39 Karin Raude, ‘Der digitale Nachlass in der notariellen Praxis’ (2017) RNotZ 17, 23; Knut
Werner Lange/Marian Holtwiesche, ‘Das digitale Erbe – eine rechtstatsächliche
Bestandsaufnahme’ (2016) ErbR 487, 489.

40 Case LG Berlin, 20 O 175/15, 17 December 2015, B. II. 2. e.

41 Case LG Berlin, 20 O 175/15, 17 December 2015, B. II. 2. e.

42 Case KG Berlin, 21 U 9/16, 31 May 2017, 45.

43 On OTT services and the German telecommunications law see Deusch/Eggendorfer, ‘Das
Fernmeldegeheimnis im Spannungsfeld aktueller Kommunikationstechnologien’ (2007)
K&R 93, 96 ff.

44 Case BVerfG 2, BvR 902/06, 16 June 2009, reprinted at (2009) NJW 2431.

45 Case BVerfG 2, BvR 902/06, 16 June 2009, para. 47, reprinted at (2009) NJW 2431.

46 Case LG Berlin, 20 O 175/15, 17 December 2015, B. II. 2. e.

47 Case KG Berlin, 21 U 9/16, 31 May 2017, 30 ff.

48 Christian Alexander, ‘Digitaler Nachlass als Rechtsproblem’ (2016) K&R 301, 303.

49 Anton Steiner / Anna Holzer, ‘Praktische Empfehlungen zum digitalen Nachlass’ (2015)
ZEV 262, 264.

50 Stephanie Herzog, ‘Der digitale Nachlass – ein bisher kaum gesehenes und häufig
missverstandenes Problem’ (2013) NJW 3745, 3750.

51 Case AG Bad Hersfeld, F 111/17 EASO, 20 March 2017; case AG Bad Hersfeld, F 120/17
EASO, 15 May 2017.

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52 A general presumed consent not only for communications with minors is assumed by
Anton Steiner / Anna Holzer, ‘Praktische Empfehlungen zum digitalen Nachlass’ (2015) ZEV
262, 264. The KG Berlin rejects the idea of presumed consent arguing that many but not all
minors would their access data on to their parents, see case KG Berlin, 21 U 9/16, 31 May
2017, 43.

53 See V. 3.

54 See Article 20 Regulation (EU) 2016/679 of the European Parliament and the Council of
27 April 2016 on the protection of natural persons with regard to the processing of personal
data and on the free movement of such data, and repealing Directive 95/64/EC (General
Data Protection Regulation).

55 Deutscher Anwaltsverein (DAV), Stellungnahme Nr. 34/2013 zum Digitalen Nachlass

(2013), 6.

56 Christian Alexander, ‘Digitaler Nachlass als Rechtsproblem’ (2016) K&R 301, 307; Knut
Werner Lange / Marian Holtwiesche, ‘Digitaler Nachlass – eine Herausforderung für
Wissenschaft und Praxis (Teil 1)’ (2016) ZErb 125, 131.

57 Knut Werner Lange / Marian Holtwiesche, ‘Digitaler Nachlass – eine Herausforderung für
Wissenschaft und Praxis (Teil 2)’ (2016) ZErb 157, 162.

58 See for example Florian Deusch, ‘Digitaler Nachlass – Vererbbarkeit von Nutzerkonten in
sozialen Netzwerken’ (2016) ZEV 189, 194; Merle Bock, ‘Juristische Implikationen des
digitalen Nachlasses’ (2017) AcP, 370, 397 ff; Benedikt Klas / Christine Möhrke-Sobolewski,
‘Digitaler Nachlass – Erbenschutz trotz Datenschutz’ (2015) NJW 3473; Martina Knoop,
‘Digitaler Nachlass – Vererbbarkeit von Konten (minderjähriger) Nutzer in Sozialen
Netzwerken’ (2016) NZFam 966, 969.

59 See for example Merle Bock, ‘Juristische Implikationen des digitalen Nachlasses’ (2017)
AcP, 370, 402 ff.

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