18 May 2022
Microsoft grants access to the digital accounts of deceased persons. When can you, as an heir, make a claim? You can read the answer in this blog.
In the Netherlands, more than 150,000 people die each year and about the same number of estates are settled. In addition to physical possessions, the deceased also leave behind digital possessions. Think of posessions as Facebook accounts, files in the Cloud or user rights to media and entertainment. These digital assets form a part of the estate of the deceased person. The Court of Amsterdam recently ruled on giving heirs access to a Hotmail account of their deceased son and brother. In line with rulings by the Bundesgerichtshof, the highest German court, the court ruled in preliminary relief proceedings. They stated that the Microsoft rights had been transferred in full to the heirs by operation of law. The case is briefly outlined below.
In preliminary relief proceedings, the heirs claimed access to the Hotmail and One Drive accounts of the deceased person. They hoped that by accessing these accounts, they could settle the estate. They also wanted to learn more about the circumstances of their son and brother’s death. Besides that, they wanted to access the e-mail addresses of friends and acquaintances of the deceased so that they could inform them of the death. The heirs argued that, based on the law, they are legal successors by universal title (saisin) to the accounts of the deceased and the contents of these accounts.
Microsoft argued that even if the heirs were to become parties to the Microsoft Services Agreement (MSA), this would not directly imply access to the testator’s account as this is of such a personal nature that it cannot be transferred by general title. It also argued that, as the data controller, it is obliged to handle the personal data of third parties in the e-mail account with care.
The court decided that the testator’s e-mail account and its contents had passed to his heirs by operation of law upon his death and that Microsoft had failed to make it plausible that the MSA was of such a personal nature that it could not be transferred by general title.
Microsoft’s argument that the rights of third parties must be taken into account also failed. The Netherlands has no statutory regulations with regard to digital estates. In this respect, the Dutch legal framework is similar to that of Germany. The court ruled, in line with two landmark judgments of the German Bundesgerichtshof, that an heir as legal successor must be given access to the Facebook account of the deceased. According to the German court, digital data such as Facebook messages are no different from physical diaries or letters. The interests of third parties or the requirements of the General Data Protection Regulation (Algemene verordening gegevensbescherming, AVG) do not alter this. For the time being, this also applies in the Netherlands. The ‘friends’ on a social network platform should take this into account in their messages.
Do you have any questions about this subject? Please do not hesitate to contact me.
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