Digital wills in case of death
Abstract
A person’s daily activity on the net leaves a “digital trail”. This makes us consider: What happens with our “digital trail” when we die? Can the person foresee anything about it?
The fact that the “digital trail” may involve both purely personal and patrimonial aspects determines that the approach to the “digital trail” left by the person upon his or her death can be made either from an eminently patrimonial-successory perspective, focused on the management and destination of the digital heritage; or from an eminently personal perspective, centred in the post mortem protection of privacy and/or personal data, both of the deceased and of third parties. This dual approach is reflected in practice and also in comparative European and American legislation. More specifically, this is an area in which questions of inheritance law, contract law and personal law –in particular the protection of personal data and the protection of posthumous and third party privacy– converge. Thus, from the patrimonial point of view, although it is not possible to speak of “digital heritage” as something different from “analogue heritage”, certain specificities surrounding and/or affecting certain “digital assets”, in some cases related to contract law, must be taken into account.
In this context, the person can order his or her “digital wills”, providing for successional arrangements (naming “digital successors”) and/or non-successional arrangements (either designating “digital executor/s” or the person able to act in relation to the protection of their personal data and/or the exercise of civil protection actions for honour, privacy or image).
Regarding the Spanish legislation, the Catalan Law 10/2017 of 27 June on digital wills adopts an essentially patrimonial perspective, providing for the possibility of appointing a “digital executor” to act before digital service providers with whom the deceased has active accounts. The fact that the Catalan law is fully respectful of the content of the contract signed between the deceased user and the service provider contrasts with the solutions adopted in this regard in other legal systems. Moreover, the default rule of no access to the “content” of the digital accounts and files, unless the deceased had established it or judicial authorisation had been obtained, brings the Catalan law closer to what is provided for in other systems.
In the Organic Law 3/2018, of 5 December, on the Protection of Personal Data and the guarantee of digital rights, both the personal approach –of the protection of data of deceased persons– and the patrimonial approach –related to “digital contents”– (in the wrongly called “digital will”) converge. This law is based on the rule of access by default to digital contents or to the personal data of the deceased, and establishes a very broad legitimisation in terms of powers and too extensive in terms of legitimised persons, without establishing any priority between them. This, which may cause problems in practice, contrasts with the provisions of Catalan law and other legislation in our environment. Therefore, the Organic Law 3/2018 is rather a law of unprotection of data and digital contents than of protection of them.
