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New verdict: Facebook account of a deceased child comes to the grave


Kammergericht Berlin: Telecommunications secrecy must be preserved
Facebook does not have to give parents access to their deceased child's Facebook account. The protection of the telecommunications secrecy enshrined in the Basic Law is contrary to the right of the parents, judged on Wednesday, May 31, 2017, the Berlin Chamber of Commerce (Az .: 21 U 9/16). Even if the parents only see the communication of their deceased child with third parties and thus want to gain knowledge about their death, access to the Facebook account cannot be granted.

The background to the legal dispute was the tragic death of a 15-year-old girl, who was caught by a train in a Berlin subway station in 2012. The parents suspected suicide. To gain clarity about the circumstances of their death, they wanted to access their daughter's Facebook account. It could be that they talked to other Facebook friends about problems or suffered bullying via chat message and the suicide was announced in this way, the parents suspected.

However, Facebook refused access to the account and invoked data protection. Third parties who communicated with the girl would be entitled to keep these chat conversations private.

The U.S. company blocked access to the deceased girl's Facebook account after a user pointed out the death of the teenage girl. The girl's public Facebook page could then still be viewed by other users. There, the 15-year-old's death was pointed out and commemorated. However, no one could log in with the access data to the account to check the chat messages.

The mother then wanted to force Facebook to view her deceased daughter's account. She also has the access data, which indicates that she is entitled to do so. In addition, she and the father are the heirs. Therefore, they would also inherit the Facebook account.

The Superior Court ruled that Facebook does not have to give parents access to the deceased daughter's Facebook account.

The Berlin judges left it open whether the parents had entered into the contract, which the daughter had concluded with Facebook, as heirs. On the one hand, this is not excluded according to the Facebook terms of use. On the other hand, the Civil Code presupposes an inheritance that the legal positions to be inherited "are embodied in some way in the property of the deceased and do not only exist virtually", says the judgment.

The question of the inheritance of the Facebook account does not have to be decided. Because Facebook is obliged to respect the telecommunications secret enshrined in the Basic Law. This also includes protecting private communication between the deceased and third parties.

According to a decision by the Federal Constitutional Court, the telecommunications secret also extends to e-mails that are stored on the server by a provider. Telecommunications secrecy could be restricted by law. However, the legislature did not provide for such an exception in inheritance law.

The mother could not rely on the fact that she had the access data to her daughter's account and that she was allowed to view the communication as her child wanted. Because the consent of those who chatted with the deceased daughter is missing here.

Finally, the insight cannot be derived from the parents' right to “parental care”. Because this right expires with the death of the child. The deadly care law also does not serve to derive a claim to access to the social media account. The understandable wish of the parents to clarify the background of the tragic death of their child also does not give Facebook an obligation to grant access to the daughter's account.

The Chamber Court has approved the revision to the Federal Court of Justice in Karlsruhe. fle / mwo / fle

Author and source information



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