The importance of digitalization is increasing every day. We now use digital wallets, store our books in digital libraries and communicate through social media accounts. The existence of these assets in digital environments raises the question — "what will happen to them after the death of their owners?" This reveals the concept of digital inheritance.
Digital inheritance has been subject to various decisions in the world and was evaluated for the first time in Turkey by the Sixth Chamber of the Antalya Regional Court of Justice ("Court") in its decision No. 2020/1149 E. and 2020/905 K. ("Decision").
This month, in Esin DigiDiary, we review the digital inheritance concept together with the Decision.
What is digital inheritance?
Although the concepts of digital assets and digital inheritance are not defined under Turkish law, the Court used the following definitions for digital assets — "other assets that are solely available in digital form and stored electronically such as videos, photos, emails, personal social media accounts" — and digital heritage — "passing down of the digital assets to inheritors; being subject to inheritance."1
In general, the social media accounts, content and correspondence in these accounts, emails, photos and videos, and mobile phone applications are considered to be digital assets by the doctrine.
What does the Decision cover?
In the Decision, the plaintiff wanted to access the cloud account of their deceased spouse. Accordingly, the plaintiff requested the cloud identity of the deceased spouse to be considered within the scope of the estate and determination of the estate. The court of first instance rejected the plaintiff's request on the grounds that delivery of the cloud account to the inheritors would violate the deceased's right of privacy. The plaintiff took the matter to the court of appeal.
The Court pointed out that in today's world, individuals can earn high amounts of advertising revenue from social media accounts and can create channels on digital platforms to generate income. Accordingly, the Court concluded that digital assets are now an undeniable reality. By stating that there is no clarity on digital inheritance under Turkish law, the Court evaluated that the email accounts, social media accounts and digital wallets of individuals are included in the estate within the scope of Article 599 of the Turkish Civil Code and should be passed on to the inheritors. Accordingly, the Court ordered to determine the digital estate.
However, the Court did not comment on whether the passing of the digital information to inheritors would constitute a violation of the Electronic Communications Act and stated that such issue should be subject to a separate evaluation.
Apart from the Decision, there is no consensus in the doctrine on whether the digital assets should be included in the estate. Some scholars make a distinction between the accounts that are used for financial purposes and for private communication.2
What are the developments in the world?
The legal issues arising out of digital heritage have been subject to different judicial decisions around the world. In one significant decision issued in US courts, the father, who wanted to access his son's social media accounts and emails in order to share the memories of his son, who died in a war, requested the transfer of his son's account from the internet service provider company. The company rejected the father's request on the grounds that the user agreements do not allow the transfer of the accounts. The issue was brought to the court, which decided that the social media account and account contents are within the scope of inheritance law and will pass on to the inheritors.
Evaluations
The question of what will happen to the digital assets after the owner dies is an important question in today's world, where influencers earn high advertising revenues through their social media accounts and such accounts can be sold in exchange for money.
The Court's Decision includes the first evaluations in Turkish law regarding digital inheritance. However, the dispute subject to the Decision is not finalized and the Decision of the Court is not binding.
There is still a need for a settled case law on how to interpret the Turkish Civil Code as per the digital inheritance concept. Therefore, it is crucial for digital platforms and those who commercially benefit from digital platforms to follow the developments on this matter closely.
Footnotes
1. MARAŞLI DİNÇ, Y., Ölümden Sonra Sosyal Medya Hesaplarının Hukuki Akıbeti: Dijital Miras, Türkiye Barolar Birliği Dergisi, Cilt: 32, Sayı: 142, Mayıs 2019, Sayfa: 273-287.
2. For further reading, please refer to:
YILMAZ, S., VEHBI UMUT E., "Sosyal Medya Hesaplarinin Miras Yoluyla Intikal Edip Edemeyecegi Sorusunun Kisisel Verileri Koruma Hukuku Kapsaminda Incelenmesi." İnönü Üniversitesi Hukuk Fakültesi Dergisi, 2020.
MEMİŞ, T., TURGUT, C., Dijital Miras Konusunda Gözden Kaçanlar, Beykent Üniversitesi Hukuk Fakültesi Dergisi, Cilt: 6, Sayı: 12, Aralık 2020, Sayfa: 201-215.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.