The Court of Appeal ruled in favour of Facebook in the second instance and dismissed the action of a mother who wanted to enforce access to the Facebook account of her deceased child together with the child's father under inheritance law, thus at the same time amending the judgement of the Berlin Regional Court. The protection of the secrecy of telecommunications precluded the heirs' right to inspect the daughter's communication with third parties.
The Court of Appeal left open whether the plaintiff and the child's father had entered into the contract that the deceased daughter had concluded with Facebook as heirs. It was possible in principle that the heirs had entered into the rights and obligations of this contract, not in the sense of actively continuing this contract, but in order to obtain passive reading rights. The terms of use provided by Facebook did not regulate whether rights under the contract could pass to the user's heirs in the event of the user's death. The basic idea of the contract did not generally speak against it being non-inheritable either. Facebook only wanted to provide users with a communication platform and convey content. A change in the person of the contracting party did not change the character of the services.
On the other hand, the Civil Code did not regulate whether highly personal legal positions (without property-law effects) were inheritable, but presupposed for inheritance that they were embodied in some form in the property of the deceased and did not only exist virtually. In order to clarify whether - non-embodied - e-mails were those that could not be inherited due to their highly personal content or those that could be inherited due to their economic reference, one would encounter considerable problems and demarcation difficulties in practice.
However, the Senate did not have to decide on the question of the inheritability of the Facebook account. Even if one assumes that this account falls within the inheritance and that the community of heirs must be given access to the account contents, the secrecy of telecommunications under the Telecommunications Act stands in the way. This law had originally been created for telephone calls. However, the secrecy of telecommunications was protected in Article 10 of the Basic Law and was thus an objective value decision of the constitution. This resulted in a duty of the state to protect and private service providers also had to respect the secrecy of telecommunications. According to a decision of the Federal Constitutional Court (judgement of 16 June 2009, 2 BvR 902/06, BVErfGE 124, 43), the secrecy of telecommunications also extends to e-mails stored on the servers of a provider. This was because the user was in need of protection, as he did not have the technical possibility to prevent the e-mails from being passed on by the provider. This applies accordingly to other communication content stored on Facebook that is only intended for the sender and recipient or at least for a limited group of users.
Contrary to the opinion of the Regional Court, the exceptions provided for in the Telecommunications Act did not apply. It is true that the law provides that a third party may be given knowledge of the content of the communication if this is necessary. However, only what served to technically enable or maintain the service could be considered necessary. However, since Facebook had only offered its services limited to the person of the user, it was not technically necessary, even from the perspective of the other participants in the communication process (chat), who were also in need of protection, to subsequently provide an heir with access to the content of the communication.
Nor was there any other statutory provision that allowed an exception to be made to the protection of the secrecy of telecommunications (the so-called "small citation requirement"). In particular, the law of succession under the Civil Code did not indicate that the legislature had intended to restrict the secrecy of telecommunications. For other reasons, too, it was not necessary to allow exceptions without a statutory provision and to deviate from the so-called "small citation requirement".
Finally, it was out of the question to assume a waiver of the protection of the secrecy of telecommunications because the plaintiff mother had claimed that she had received the access data from her daughter. This circumstance was disputed between the parties. However, it had not been necessary to take evidence, since not only the deceased as user of the account and contractual partner of Facebook, but at least also all those who had communicated with the deceased in a two-person relationship, must have waived the protection of telecommunications secrecy. The case-law of the Federal Constitutional Court (see, in particular, the judgment of 27 February 2008, 1 BvR 370/07, BVerfGE 120,274, paras. 290 to 293) did not ultimately lead to anything different for the present case. However, the consent of these other communication partners, which was thus required, was not available.
The Senate also examined whether the plaintiff had a claim to access to the account outside the law of succession. This was to be denied. In particular, the right of parental custody did not give rise to such a claim. This right expired with the death of the child. The right of care of the dead still accruing to the parents could not be used to derive a claim to access to the social media account of the deceased child. The mother's own right of personality was also not suitable to justify a claim to this access. Knowing one's own parentage, for example, was recognised as a sub-area of the right of personality. Despite the parents' understandable wish to find out more about the reasons for the tragic death of their child, no right of access to the account could be derived from this. Even if remaining ignorant of this could massively impair the parents' development of their personality, there were also many other events that could have the same effect. As a result, the general right of personality would become a basic right without contours and no longer manageable.
The judgement of the Kammergericht is not legally binding, as the Senate has allowed an appeal to the Federal Supreme Court.
The written reasons for the judgement are published below.
Berlin Regional Court, judgment of December 17, 2015, file number 20 O 172/15
Kammergericht, judgment of May 31, 2017, file number 21 U 9/16
Furthermore, the appeal proceedings also ended in favour of Facebook. In the enforcement proceedings, the Regional Court had imposed a penalty payment of EUR 25,000.00 on Facebook at the applicant's request (see PM 5/17). Facebook's appeal against this was successful. Today (31 May 2017), the Court of Appeal set aside the order imposing a penalty payment and dismissed the plaintiff's corresponding application. Since the judgment of the Regional Court no longer existed, enforcement by means of a penalty payment was also no longer permissible.
Kammergericht, Order of 31 May 2017, Case No. 21 W 23/16
Source: Press release of the Kammergericht Berlin of 31.05.2017
GoldbergUllrich Attorneys at Law 2017
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law
E-mail: info@goldberg.de
