BGH; 2018-07-12; III ZR 183/17
Decision by national courts in the field of European Union law — ECLI:DE:BGH:2018:120718UIIIZR183.17.0
Date: 2018-07-12
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82018DE0712(51)_ENG_SUMJURE
JURE summary
JURE summary
In her claim, the mother (hereinafter ‘the plaintiff’) of the deceased underage daughter (hereinafter ‘testator’) claimed access to the user account of the testator on a social network which is run by a company based in Ireland (hereinafter ‘the defendant’).
The plaintiff’s attempt to log into the testator’s user account failed. The account was put into a so-called memorialised state following the communication of the testator’s death by a third party.
The plaintiff stated that the coparcenary requires access to the user account in order to obtain information as to whether the testator harboured intentions of suicide shortly before her death.
The Landgericht Berlin (hereinafter ‘the Court of First Instance’) granted the claim.
The Oberlandesgericht Berlin (hereinafter ‘the Court of Appeal’) dismissed the defendant’s appeal.
The plaintiff’s appeal before the Bundesgerichtshof (hereinafter ‘the Supreme Court’) against the order of the Court of Appeal was successful.
A consumer contract was concluded between the testator and the defendant with regard to the set-up and use of an account in accordance with German law. The consumer contract along with its rights and obligations passed to the heirs, the plaintiff and the father of the testator, pursuant to Section 1922(1) of the BGB (1). As contracting parties, they are entitled to access the user account and its highly personal contents.
The heritability of the entitlements could be ruled out by contract, but this is not the case. The defendant’s user terms and conditions do not contain such a provision.
The account being put into the memorialised state contravenes Section 307(2)(2) of the BGB. Access to the user account as a material right under the contractual relationship was prevented, and therefore the purpose of the contract can no longer be achieved.
As the deceased’s right derived from the basic right to inviolable human dignity, post-mortem individual rights do not oppose the hereditability of highly personal digital contents either. If this right is interfered with, the deceased’s next of kin can assert the rights to defence in the form of cease and desist claims. This does not justify a right proceeding law of succession of the next of kin to the highly personal digital contents, which is why it is irrelevant in the present context that the heirs are the testator’s next of kin in any case.
Contrary to the view of the Court of Appeal, a claim of the joint heirs to access to the testator’s complete user account and the contents maintained therein should not be rejected due to Section 88(3) of the Telecommunications Act either. The secrecy of telecommunications protects neither the testator nor the applicable communication partner from the heirs inspecting the contents of the user account.
Finally, the plaintiff’s claim is not opposed by data protection either. The General Data Protection Regulation (2) relates only to living natural persons.
The Supreme Court annulled the judgment of the Court of Appeal, and the defendant’s appeal against the judgment of the Court of First Instance was dismissed.
(1) Bürgerliches Gesetzbuch (German Civil Code).
(2) Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation).