What are Digital Assets?

A digital asset is, essentially, anything that is stored in a binary format and comes with a right to use. In general, this means any accounts that you open online, including email, social networking, and photo sharing, as well as websites and domain names which you own.

Digital Assets in Recent Media

A mother who has been fighting to access her late daughter’s Facebook account has won her battle after six years in and out of German Courts. The issue faced by the Courts was how their conventional rules on succession applied to this case. Generally in Germany, heirs take over all the existing legal relationships of the deceased, including contracts between an individual and an online provider. However, this general rule is not applicable to ‘highly personal’ relationships.

The Court of First Instance in Berlin did not believe the threshold had been met, and sided with the mother. It compared the nature of a Facebook account to a private diary or letters – they are all similarly personal – and so given that these items might be inherited by loved ones, so might a Facebook account. However, the Berlin Appeals Court in 2017 did not agree. They found in favour of Facebook stating that “privacy in telecommunications is guaranteed by Germany’s basic Law (the Constitution).”

Decision by the Federal Court of Justice

The case has now been settled following the final decision delivered by the Federal Court of Justice in July 2018. It ruled that in German law, “the contract covering a user account with a social network is transferred to the heirs of the original owner of the account,” meaning that the deceased girl’s mother is entitled to full access to her daughter’s Facebook account including her posts and private messages.

Digital Assets and GDPR

The Court also looked into the possible implications of the new General Data Protection Regulation, aimed at protecting data and privacy for all individuals within the European Union and European Economic Area. They concluded that this does not provide any barrier to the mother’s access given that “the regulation only protects living people.”

The Law in Scotland and How We Can Help You

Whilst this case is not directly applicable in Scotland, it provides an interesting commentary on how Executors (as the ones stepping into the shoes of the deceased in Scots law) might gain access to a deceased’s social media account.

If you would like advice on making provisions for your digital assets, contact a member of our specialist tax and succession team today.