Turkish Law Blog

Digital Asset and Digital Heritage

Mehmet Burak Küçükislamoğlu Mehmet Burak Küçükislamoğlu/ Küçükislamoğlu | İpeklioğlu | Narin | Dalgıç & Partners
25 June, 2019

Rapidly developing technology brings benefits to our lives and brings along many legal problems. One of the technological developments is the reflection of social media; has become an indispensable part of our lives. In fact, it is a matter of fact that some people have started to make financial gains through social media platforms. All these technological developments have revealed the concepts of digital asset and digital heritage; but these concepts do not have very widespread use of our law, there are no legal regulations in Turkish Laws. However, there is no adequate examination of the doctrine. Unlike our country, in some other countries, digital assets and digital heritage concepts are examined as settled concepts.

If we make a short classification of what might be a digital asset;

  • Contact services such as Facebook, Twitter, Instagram, WhatsApp, E-mail
  • Accounts, profiles, passwords, assets and payment services in online banks
  • Games, image editing programs or Icloud, etc. software that backs up memories
  • Customer accounts in online stores, systems, e-books, subscriptions, etc. services
  • Smartphones, hard drives, tablets, etc. vehicles are included in this classification.

However, it cannot be determined clearly what the digital asset is composed of because of the constant change of the digital world. In terms of our country, the digital asset has a different nature than its assets in our current legal system.; unlike documents, files, address books or photo albums, it is inherently abstract. Digital heritage is transfer by inheritance of such abstract assets, it is a matter of heritage.[1]

The Status of Social Media Accounts After Death

There is no legal arrangement since social media accounts, in other words, have a very new problem with the status of digital assets after the death of a person. Again, there is no dijudication in our country yet. However, the question of whether or not the e-mail account can be inherited for the first time in the United States has been raised before the judiciary[2]. In Germany, after the death of the person, the “Facebook” account password can be given to the family of the deceased has been sued. The decision of the German Federal Court on this case is an equal qualification. [3] After the discussion of whether the Facebook account will be transferred to heirs in Germany, Facebook, and some other social media platforms have made an arrangement in their contents, allowing people to choose whether to share their account passwords in case of death in the settings menu and to share with others if shared. But such a situation is not legally equivalent.

Legal Evaluation:

Will the passwords of social media accounts be given to their heirs in case of death? What will be the fate of social media accounts, digital assets? Can personal rights be violated in order to reach the material reality to enlighten death? If a decision is made in this direction, would it mean that an individual who has a deceased relative will not have the information he/she would not want him/her to know about the deceased person?

In order to answer all these questions more easily, it is necessary to mention some principles of the Constitution. The first of these is the privacy principle of private life, which is protected by Article 20 of the Constitution. In accordance with this principle, the privacy of individuals' private life is essential and this confidentiality cannot be touched. As the person of the deceased will come to an end in accordance with Turkish Civil Code Article 28/1, the principle of this principle can be accepted for the persons who communicate with the social media account of the deceased, even though this principle cannot be defended in terms of the deceased. Other violation will be in terms of the principle of confidentiality of communication. In accordance with Article 22 of the Constitution, the confidentiality of communication is essential. It is now very common to communicate with the message through these accounts of our age. People often write these messages in a comfortable way with confidence and confidence that no one will see. However, after the death of one of the parties, if the password is passed to the heirs, the mutual talks that have not been deleted by people outside the parties will be seen, Read will be on the agenda, in such a case the problem of violating the confidentiality of communication may arise. From a penal point of view, Article 132 of the Turkish penal code criminalizes the breach of the confidentiality of communication and Article 134 of the Turkish Penal Code criminalizes the breach of the privacy of private life. Therefore, the adoption of the passing of the password of the social media accounts to the heirs without being placed on a legal basis is a crime in violation of the constitutional principles and in accordance with the Turkish Penal Code. In the face of all these, there is a right of inheritance as an extension of the property right of the heir. This right is a constitutional right, just as it is the privacy of private life and the privacy of communication. This request must be complied with if a person wishes to issue a testament to the social media accounts of his / her heirs or to any other person by arranging a testament in which the person carries the necessary elements which must be in a real will. On the other hand, the deceased does not declare any will in his health, a legally valid death savings account with a relative who does not leave behind a password to be considered as a special moment in the nature of these accounts will be considered as an article on the subject of Facebook in Berlin on the appeal of the event on the appeal The decision made by the German Federal Supreme Court in the digital materials to be evaluated as letters and diaries to be passed on to the heirs of the State Supreme Court of the decision of the Berlin State was the precedent decision. Considering that it is possible to transfer the goods with special memory value to the heirs, it is seen that the decision of the German Federal Court is very accurate in terms of our country. The decision is a precedent not only for Facebook but also for all other social media accounts of similar nature.

Our  Opinion

The concept of digital assets and digital heritage emerging as a result of technological developments in our era has started to take place in the terminology of law even though it is not yet fully incorporated into our legal system. In the face of the reflections of this evolving technology, the law should not be left behind; a legal arrangement or stability should be achieved through judicial decisions.

[1] DİNÇ MARAŞLI Yasemin, Ölümden Sonra Sosyal Medya Hesaplarının Hukuki Akıbeti; Dijital Miras p.275

[2] In 2004 Corporal Justin Ellsworth was killed while serving in Iraq. After his death, his family wanted to access Yahoo e-mail, but his requests were not met because Yahoo's terms of Service were forbidden. So the family filed a lawsuit in Michigan to access their son's e-mail, and the court ruled in favor of the family. Yahoo does not allow the family to access their son's account but has provided a copy of the contents of the e-mail.

[3] BGH, Urteil vom 12. Juli 2018- III ZR 183/17- Berlin

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