Death and Facebook

As our lives are becoming increasingly digitalised and more immersed in social media platforms, it is surprising that of those Australians who have a Will (and nearly 50% of Australians do not have a valid Will), only 3% have included instructions regarding what is to be done with their social media accounts upon their death.

A recent German case concerning the estate of a 15 year old child has highlighted an issue arising in succession rights regarding access to a deceased’s social media accounts.

A mother trying to determine whether her 15 year old daughter’s death by an underground train in 2012 was an accident or a suicide appealed in the Federal Constitutional Court (Germany’s highest court), to gain access to her daughter’s Facebook account. The Court held that the daughter’s contract with Facebook formed part of her estate.  Therefore upon the estate passing to the mother, the mother was given full access to her daughter’s account, including her posts and private messages.

The Court held that ‘the contract covering a user account with a social network is transferred to the heirs of the original owner of the account’ who ‘have claim on the network operator for access to the account including communications data’.

The mother’s argument that the contents of a social media account were comparable to a private diary or letters were ultimately upheld by the Court.

What this means for the future

Currently, Facebook only provides for a deceased person’s account to be deleted or alternatively be converted into a memorial page, in which access to the deceased’s private messages is restricted. The recent ruling in Germany’s highest court could, however, have widespread implications for the rights and entitlements to a deceased person’s social media accounts.

This case acts as a timely reminder of the importance of considering your digital wealth (including social media) in your succession planning, especially in light of how rapidly this area of law is evolving. Please read our detailed article on what happens to your digital wealth on death and incapacity for more information and feel free to contact us if you wish to discuss this further.

This article was written with the assistance of Eloise Cotchett, Law Graduate.