Following the recent landmark judgement by the German Court where heirs now have the right to access the Facebook accounts of their deceased relatives, Newsbook.com.mt spoke with Dr Gege Gatt, Vice President of the Malta IT Law Association (MITLA).
Reacting to this story, Dr Gatt states that while Germany is creating a precedent in this case, he agrees with this judgement as he believes it is necessary to create a system at law which allows people close to the deceased person to be given the right to access or exercise some rights that would have otherwise been exercised by the deceased person.
He further explains that this scenario is fair because these representatives can be permitted by law to direct some of the attention and interests of the disease person towards the assets and their disposal.
Malta has not created a specific interpretation
Replying to questions by Newsbook.com.mt, Dr Gatt clarified that although Malta has not yet created a specific interpretation of this clause, Malta would most probably follow the traditional rules of inheritance law. Moreover, he says that there should be an extension of these laws in the digital world.
It is up to every country to decide
He said that it is up to every country to decide whether it should allow access post-mortem or otherwise. Quoting laws from various countries, Dr Gatt said that Austria does not allow it while Italy does allow it.
Explaining the legal background in Italy, Dr Gatt said that in Italy, a number of sections of the GDPR are activated by what they call a person who has an interest in the protection of the diseased.
Platforms have distinct policies
Looking at specific platforms, one can pinpoint various policies which already exist. Dr Gatt clarifies that the first thing a court would do is look at the terms and conditions of use of that particular platforms, such as Facebook and Twitter, and see what these have to say about post-mortem activity.
In February 2015, Facebook launched a featured called “legacy contact” where it lets people choose a family member or friend who can manage their account when they pass away. The “legacy contact” policy was established after families of the deceased had told Facebook they wanted to download and preserve the user’s photos and also post funeral announcements or other news. Instagram, as a company owned by Facebook, has a similar process to memoralise an account.
On the other hand, Twitter can work with a person authorized to act on behalf of the estate, or with a verified immediate family member of the deceased to have an account deactivated.
In their help section, Youtube also have a policy explaining what happens if you do not leave clear instructions of how your account should be managed after you die. Youtube says that they “work with immediate family members and representatives to close the account of a deceased person where appropriate”. Youtube says that in certain circumstances, content may be provided from a deceased user’s account. In all of these cases, Youtube’s primary responsibility is to keep people’s information secure, safe, and private. This is why they do not provide passwords or other login details. They emphasised that any decision to satisfy a request about a deceased user will only be available after a careful review.
We should have clarity
Dr Gatt thinks that it is dangerous to allow platforms to determine post-mortem activity.
“I would much rather see international law being formed which would have a certain amount of coherence and consistency in Europe or possibly globally and would create common standards of how we handle digital assets in a post-mortem reality”, states Dr Gatt.
He concluded by saying that we are living in a critical age, where these digital assets are very dear to the family of the deceased and “therefore we should have clarity around how they should be managed”.