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As we saw in the previous post, we all have a digital life, whether or not it reflects our ordinary life, made up of data in electronic format stored, transmitted or reproduced on telecommunications networks or on our own physical media. What happens to this digital content when a person dies and who can access it?
1º- With death, the personality is extinguished, but the memory of the deceased is subject to legal protection, which also includes their digital legacy.
2º- Everyone has the right to dispose of the destination of their digital manifestations and contents regardless of the environment in which they are found, and if they do not do so and, specifically, it is not expressly prohibited, their heirs will have full access to their digital life without any restriction (not in Catalonia, for example, where the heirs do not have access without the authorisation of the deceased).
Therefore, the heirs have access to all accounts, profiles, contents, conversations and in general to all the digital history of the deceased unless expressly prohibited by the deceased. The deceased can dispose of his privacy and the secrecy of his data, but if he does not do so, his heirs will have full knowledge of his digital life.
There is the possibility of a digital will, i.e. the power to designate a person or persons, natural or legal, who will be responsible for requesting access to, rectification or deletion of their digital data, at the time of death, even determining specific instructions for doing so, which may also be subject to registration. At present, this provision on digital wills has not yet been regulated or developed.
In practice, in the absence of regulation of digital wills, the way to do this in practice is to make a will through a notary (which could also be a notary public, with its difficulties of proof), in which any specific provisions or instructions concerning the digital estate can be included, as well as the persons responsible for carrying them out, whether they are heirs or not.
In addition, it is common for providers of digital services (social networks, platforms or equivalent services) to empower both the data subject and the persons entitled after the death of the data subject to decide on the fate of the digital data covered by the respective service, and they are obliged to carry out the instructions received without delay. Once the existence of these instructions or orders received by the service provider during the lifetime of the deceased person has been established, they take absolute precedence over any request from legitimised persons, heirs or related persons. The large platforms often have their own regulations, even if not strictly in accordance with the norm, either because they only allow restricted access when the death of a user occurs, such as the creation of «memorial accounts» without much room for modification, or sometimes they allow the creation of digital capsules in the cloud containing all the user’s instructions in the respective service.
In the absence of instructions, there are doctrinal doubts as to whether or not the heirs or next of kin have full access to all digital files, especially when it comes to sensitive content such as passwords or instant messaging. In principle, the law does not discriminate, nor does it discriminate in relation to physical objects or non-digital ideals, over which the heirs or next of kin also have full attribution, so there is no legal justification for restricting their access in relation to digital content.
In any case, in relation to passwords or access codes, the platforms themselves have their own automated protocol for modification and rectification, which is simpler or more complicated depending on how you look at it than justifying the status of the deceased’s relatives or heirs. The same can be said about electronic communications, the secrecy of communications or the right to privacy cannot be argued because any relative can easily access, for example, letters or correspondence, another case would be the effects of illicit disclosure, and above all the not infrequent usurpation of e-mail, supplanting the identity of the deceased, which can have criminal consequences.
3º- In the absence of a digital or ordinary will, all persons linked to the deceased, for family or de facto reasons, as well as their heirs, may contact the data controller (including digital data) and report the death of the person, with the right to access, rectify or delete the deceased’s data, by virtue of the principle of accuracy in the processing of personal data.
4º- In any case, the heirs always have the right to access the deceased’s property data, which are necessary and essential for deciding on the acceptance of the inheritance and, where appropriate, its partition and liquidation.
Pd. As we have mentioned, there is no current regulation of the digital will (in relation to digital content), but no one is unaware of the importance of having a digital tool that with full legal guarantees and easy access from the internet allows any interested party to issue specific instructions about their digital estate, for example, think of the future and secure conservation of passwords and access codes, which can be updated according to the recommended regular revisions, and whose current permanence and reliability in equipment and/or internet services is doubtful. Perhaps notaries as notary publics and by means of digital signatures are, in principle, the obvious intermediaries or public managers for this function, pending the inevitable and necessary implementation of blockchain services.
All this according to the regulation contained in the Organic Law 3/18 of 5 December on the Protection of Personal Data and Guarantee of Digital Rights (specifically art. 96).