The legal issues surrounding the fate of digital assets after death are attracting growing attention in Europe and elsewhere. Courts are often confronted with claims related to the access and/or appropriation of data, communication contents, or generally digital remains of the deceased. Bills have recently been passed not only in North America (US and Canada), but also in Continental Europe (France and Italy, for instance), mainly with the aim of securing access to data and property held by content providers and social networks. Various essays, dissertations and monographs have recently been devoted to such topic, and not only from a strictly legal point of view, but also from a sociological and anthropological perspective.
Still, several questions are still unresolved and raise controversies. The difficulties stem not only from the peculiar interference among different areas of the law, such as the law of wills and intestate succession, the law of personality rights, data protection, as well as contract and consumer law, but also from the clash of legal traditions characterising the transnational governance of digital platforms, which address a global audience, but whose structure and organization is mainly shaped by the US legal culture. Furthermore, one should not underestimate the inherent conflict between the technological ‘code’ and the legal ordering as competing systems of regulation, informed to different logic and leading to different operative results.
In this seminar, I will try to sum up the most significant problems and possible solutions as far as the transmission of a deceased person’s digital assets and data is concerned. I will not limit my attention to a specific legal system, but I will look at emerging trends from a comparative and transnational perspective, with particular regard to the experience of European law.
The main questions that have to be answered are the following:
(i) Who, and on which conditions, might enforce privacy and personality rights originally belonging to the deceased;
(ii) Which assets can be transmitted to the heirs;
(iii) What are the limits of private autonomy as regards the governance of digital afterlife.