Mariagiulia Signori & Cecilia Trevisi
Technological progress has impacted on the idea of an individual's assets. In addition to traditional assets (land, buildings, registered assets, jewellery, etc.), there are now new digital assets to be considered: domain names, access keys for e-commerce platforms, usernames, social accounts, email, software, e-books, music, computer documents, photos, videos, virtual art, crypto assets, and NFT.
Digital assets are very diverse and it can be complex to try to classify them. Problems arise when a person owning these “new” assets dies without any indication as to their management or simply providing information on how to access them (digital death). In the absence of specific testamentary dispositions, it is necessary to obtain a court order to access these assets.
In Italy, in the absence of access credentials to devices, social networks and emails, it is possible to request a cautionary and urgent measure that allows authorised persons access to such data by providing the relevant access keys.
Transnationality problems (the provider is often based abroad) can be solved by implementing the “residence principle”, which means that the law of the deceased's habitual residence applies. This principle is valid both for citizens of EU member states and for non-EU citizens who have their habitual residence in an EU country.
Other issues concern the privacy of the person who has died. This is in reality a false problem. In Consideration No. 27 of GDPR No. 2016/679, it was made clear that the privacy regulation does not apply to the personal data of deceased persons.
In Italy, Article 2-terdecies of Legislative Decree No. 101/2018, which focuses specifically on issues of post-mortem protection and access to the personal data of the deceased, provides that “the rights ... referring to personal data concerning deceased persons may be exercised by those who have an interest of their own or, are acting to protect the data subject, as his or her representative, or for family reasons deserving of protection”.
The general rule provided for by our legal system is the survival of the rights of the interested party after death, and the possibility of those rights being exercised, post-mortem, by certain persons entitled to exercise the rights themselves. In this sense, the Court of Milan expressed itself in the order of 02 March 2021 and the Court of Rome in the order of 10 February 2022.
However, the Italian legislator did not clarify whether it was a simple mortis causa acquisition or a legitimation inure proprio, and merely provided for the “persistence” of digital content rights after the life of the natural person.
Italian law allows the individual to choose (during their lifetime) whether to give heirs and legitimate survivors access to their personal data or to prohibit the exercise of such rights; in the latter case, this choice must be unequivocal, although the person concerned may always change or revoke it.
To conclude, in the case where a person dies suddenly without their heirs knowing the passwords to access the deceased's devices, emails or social network pages, they have the right to access the personal data of the deceased based on “family reasons deserving protection” (the so-called “right to memory”) which justify access to the digital assets after the death of the owner. Such access cannot be precluded, conditioned or limited by the general terms and conditions relating to the individual device or those relating to specific social networks.
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Dr Mariagiulia Signori is a Lawyer Partner, based in Milan since 2005. In February 2017 she qualified as a Lawyer at the Supreme Court of Cassazione. She studied at the Università degli Studi di Milano, after which she did an internship in Strasbourg. Since then, she has deepened her technical knowledge and experience in various law firms. Mariagiulia specialises in judiciary proceedings, corporate and commercial law, M&A, due diligence, restructuring and insolvency, and real estate. Contact Mariagiulia.
Cecilia Trevisi is a Lawyer Partner with COMMA 10. She’s a Member of the Milan Bar Association, specialised in copyright and related rights, industrial property rights, commercial and corporate matters. She is a regular speaker at conferences and author of articles on copyright and industrial law. Cecilia is also a Member of AIPPI (International Association for the Protection of Intellectual Property). Contact Cecilia.