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Facebook ruling: German court grants parents rights to dead daughter's account (bbc.com)
54 points by cr1895 7 months ago | hide | past | web | favorite | 81 comments

I think I'm pretty conflicted about this. On one hand, in this particular case it makes sense for the parents to get closure and find out if their daughter was suicidal.

On the other hand, it's their daughter's privacy. She surely wrote messages to people that she didn't want to share with her parents. And there might also be messages on this account that the parents don't want to find. People with psychological problems can write pretty dark stuff and she might also have talked about her parents in those messages. I'm not sure the parents will only get the closure they want, they might also dig up stuff, they later will wish they hadn't found.

So in the end, I'm not sure I agree with the judges decision. I think I share information with my parents the way I want to and definitely share other information with my friends in a group and 1on1 in messages. And I'm also sure I don't want my parents or another party not participating in some of those message groups to ever read that content.

It's consistent with former practice with letters and such, that unless one makes arrangements to the contrary that the family/next of kin inherit private letters, writings, and effects.

And that's fine, by law, but I'm thinking, I would also not like my parents reading my diary if I might have stuff in there I specifically don't want them to read (kinda the purpose of a diary in a way). So not sure, what point this makes, other than "Yeah but they can see other stuff I didn't want to share with them too"

My point was that this isn't a a Facebook/web issue, they are following the offline analogue.

However, Facebook could easily add an "instructions after death" section .. in fact IIRC they did.

    Then create a will/trust that specifically mentions that your diary should be shredded or given to a friend of yours that you trust but NOT the parents.
    This is happening all the time.

Her diary and received letters would be owned and accessible by her parents, as the court pointed out.

Why should her Facebook account be treated differently?

Because Zuckerburg structured it that way so FB owns the account and content.

Imagine a world where children don’t buy diaries and journals but some unscrupulous corporation gives them to children for free...now go ahead and write all your personal secrets in there and the corporation will own the rights to those secrets and use them to sell to other unscrupulous corporations to decide if the children are a good fit for their product advertising.

If it sounds far fetheched it’s not, if it sounds deeply disturbing it is...not only because it is real and happening, but because everyday Facebook (and other tech companies) are entering into contracts with minors, which these kings of data know or should know are illegal contracts to begin with (in the US minors can not enter into contracts unless necessary)

You‘d need a legal reason for the contract between user and Facebook to be terminated.

The heir enters the contractual relationship in the decedent‘s stead, with all privileges and obligations.

At least in Germany.

I'm not sure though if that has to be the case though. Some contract types terminate automatically, question is if that is only legally possible for those special cases or if any contract can be written that way. Similarly if data deletion clauses could be challenged or not - being party to a contract that says all data has to be wiped if person X dies doesn't help you with gaining access to that data. That of course isn't part of the current social media user agreements, but could very well be added now as an option.

Then again, it‘s doubtful if a minor can enter into such an agreement.

Practically speaking, I think there are so many tangents to go off here that basically the courts could decide whatever they consider „right“, and that‘s probably in favor of the parents.

True, that's an interesting question. I'd guess it might follow the rules for writing a will, so you'd have to be 16, and even then a court might override it for the parents.

>FB owns the account and content.

FB does not own content you post, you grant them a distribution license. You still own the copyright to your own original work.

Well minors can’t enter into contracts to grant FB distribution rights, therefore, those contracts are void as a matter of law.

thus ... FB does NOT own the content, regardless.

does that mean a minor can sue fb for distributing their content?

Welcome in Germany, where my data ist my property independent of what some american corporate bully wants.

I should clarify that if Facebook understands that the person is deceased, the account should either be stripped off the data and just kept for mourning purposes or deleted. This data is private ownership of the original person only and should be deleted after their death.

I believe some legal systems consider privacy to be a non-issue once someone has died. That thinking seems implicit in the judge's mention of the way diaries are handled after death.

Also, the age of deceased may mean it's treated differently. From the article:

> the parents had a right to know who their child, a minor, had spoken to online

Why do you think she "surely wrote messages to people that she didn't want to share with her parents"? Seems like a pretty big assumption.

>On the other hand, it's their daughter's privacy.

No, the daughter is dead, according to the title.

It's not as clear cut as you're making it sound, there are a wide variety of opinions about how much a person's right to privacy extends beyond their death.

There may be different opinions but legal and customs shows that (in most jurisdictions), unless the deceased has made legal arrangements otherwise, their property is inherit by next of kin, including letters, diaries, etc. Why would content on Facebook be any different?

Because in the modern age, electronic messages are partly like letters or diaries (which would be passed on to next of kin) and partly like phone calls or in-person conversations (which would not be passed on to next of kin).

How could you pass phonecalls or conversations unless they are being recorded? (Wait, are they being recorded?! /s)

I mean, I understand that some people think that our relationships to phones and digital world somehow are deeper/more-private than any other medium we had before...

But I'm pretty sure people felt that diaries and love letters were pretty private before Facebook or Bell's invention.

Phone companies werent willingly storing our "content" to profit from it. They were storing calls because of court orders.

Facebook is storing our data for posterity and I have a right to request Facebook to rid/edit that data (even if it's just marking it as "deleted") and think my next of kin should inherit the same rights I had over that data.

That's very succinct and I agree.

It does make me wonder, however, about the case of a psychiatrist or psychoanalyst who keeps paper notes on what his private patients have spoken about, and then dies suddenly in an accident together with his immediate family, so his next of kin and heir turns out to be a distant cousin, who happens to be an irresponsible teenage drug addict, say. Could anything be done to block the transfer of those paper notes in a case like that?

Perhaps a self-employed psychiatrist ought to have appointed a law firm as their executor and left instructions that patient notes should be destroyed rather than transfered to the next of kin, but if they'd forgotten to do that?

Doctor-patient privilege applies even after death, and while I couldn't easily find anything online, my assumption is that there's a process in place to handle scenarios like this so that patient data doesn't end up in unauthorized hands.

I've not heard of "doctor-patient privilege". Is that a US thing?

I was thinking of a private practitioner of complementary medicine, who might not be officially qualified or officially registered or officially anything at all, at least in England, where professions are not usually regulated. I'm fairly certain privacy would nevertheless be expected...

I've just asked someone who knows a bit more about English law than me. Apparently there's a common-law tort of breach of confidence, which would probably prevent an heir from revealing what's in the (pseudo)therapist's notes and might allow someone to get an injunction to stop the papers from being inherited in the first place. Interestingly, data protection probably wouldn't have much to do with this hypothetical case, nor with the hypothetical case in which a random person finds a box of confidential notes/letters in a hedge.

There is a "HIPPA"[0] law that is often referenced in the US when seeking medical services. Presumably it really only applies to interstate insurers, but is often believed to "protect" some information from being shared without a "patient's" consent.

[0] https://en.wikipedia.org/wiki/Health_Insurance_Portability_a...

> There is a "HIPPA" law

HIPAA, actually.

> Presumably it really only applies to interstate insurers,

It applies to all public and private health insurers/payers and healthcare providers in the United States. (Source: over a decade working in roles with some involvement in HIPAA compliance for a large, public, intrastate healthcare payer.)

Specifically, relating to the protection of information after death, the HIPAA Privacy Rule protects information for 50 years after death, but does give full control to the decedent's “personal representative” as determined by applicable law during that period.

A famous example is Anne Frank, and how her father treated her diary, privacy and controversial content. It’s not at all straight forward.

Yes, there are also a wide variety of opinions on climate change.

After a person dies, they don't exist. It is counterfactual to posit that they have 'rights'.

Rights exist only so far as they are granted. If we, as a society, choose to grants rights to the dead then the dead shall have rights.

Right are a completely arbitrary construction of organized society so it's strange to suggest there are any absolute rules that govern 'rights.'

>Right are a completely arbitrary construction of organized society so it's strange to suggest there are any absolute rules that govern 'rights.'

Are you familiar with the United States Declaration of Independence [0]?

>We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

It seems to me that 'rights' could exist without an 'organized society'. But, so far, I don't think any 'organized societies' really recognize 'rights of a dead person' (chiefly, I think, because there is no longer a 'person' to have rights).

Do you know of a law that grants rights to dead persons?

[0] http://www.ushistory.org/Declaration/document/

Some states (Florida and California, I believe) have laws prohibiting release of photos of corpses -- granting the dead a limited right to privacy. Laws prohibiting the disturbance/mistreatment/abuse of corpses are common, but not universal.

I highly doubt California has such a law. It would not be constitutional[0] if it did:

>SEC. 2. (a) Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press.

Also of interest to this thread is:

>SECTION 1. All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.

How does a dead person enjoy life and liberty? Acquire, possess, protect property?

[0] https://leginfo.legislature.ca.gov/faces/codes_displayText.x...

Some of the provisions in health safety code prohibit disturbance of remains, except where specifically authorized. [1] There are other sections that require the written wishes of the deceased regarding the remains to be followed without undue delay if they are clear and properly funded.

Upon further looking, I can't find anything to back up my claim on photos. There have been various efforts to provide these from time to time, but it doesn't look like any of them resulted in passed laws, or case laws. There's some case law around heir's right to privacy with regard to photography of the deceased, but that doesn't seem well settled either.

[1] https://leginfo.legislature.ca.gov/faces/codes_displayText.x...

I'm not sure if you are playing or just didn't read the law very carefully, but disturbance of remains is not prohibited by what you linked.

>wantonly disturbs

That's an interesting argument, but not one that I agree with. Rights exist without being granted. In an unorganized society, theoretically you have all possible rights. Society limits your rights, it doesn't grant them.

Six of one, half a dozen of the other. The outcome is the same as far as I can see. It's an interesting distinction to make, however.

It's important because you won't fight to preserve rights you don't think you possess, and there is no conflict if the government decides to take control of something if you don't have an acknowledged right to it given by the government.

Essentially, in the scenario where you only have the rights the government grants you, the default uncharted behavior is illegal or immoral. In a scenario where you have all the rights not limited by the government, you can do new things and have the right to engage in new behavior without fear.

ihsw2: there are well documented records of societies that cut the beating hearts out of children in ritual sacrifice, built towers or of skulls, etc.

It's not a dichotomy between absolutism and nilism - there are happy middle grounds.

Those uncivilized societies were rightfully left to the dustbin of history -- they embody the nihilism I am referring to.

But they had their rules too. Are you suggesting their rules were somehow "wrong"? Funny how the societies left to the dustbin of history are never the "right" ones. It's almost as if the survivors are the ones who choose who was wrong.

Yes, their rules were wrong. The survivors don't have to choose who was wrong - the wrong ones don't survive.

It's like when a people revolt against their government. This is wrong to do, unless they win; then it was always correct.

I think it's very hard to make a logical case for the equivalence between success and rightness, which you seem to be suggesting.

There are many people who succeeded in our time who are viewed by many rational people as being very wrong. Corrupt Russian oligarchs, policy-anulling health insurance bosses, Bitcoin thieves...

Having the power, or cunning, to get away with something doesn't make it right to do so!

Individually, when operating within a greater society that views your actions as wrong, then you are correct.

But as a society? Within its own framework? Sure it does. Another society can view it as wrong, and maybe they will go to war over it - what they used to call an 'appeal to God.' The ultimate winner is the right one.

Why do you think what's 'right' can change over time?

There are absolute rules that we should adhere to, to imply that they are a social construction is to embrace nihilism and anarchy.

There is a set of universal standards and expectations have existed for millennia in many forms. There has always been an implicit set of common rules -- common across all cultures and generations -- that we as a species live by. Implying that everything is a social construction mental laziness and a desecration of our fore-bearers at best and malicious destruction of the bonds of society at worst.

"A is true because bad things will happen if not" is not a valid argument.

To the specific point, I struggle to find any set of rules which is common across all cultures and generations; care to name a few?

"Don't urinate on your pillow."?

One is that empathy and self-control are the internal enforcers of the civilizing process. A lack of one or both is the sign of an uncivilized society or individual.

Another is that parents' authority over children is sacred, as well as the bonds of marriage and friendship.

Empathy and self-control are not rights. They may inform rights, but different cultures see those as creating very different rights.

parents' authority over children is sacred

That's completely false, many societies (ours included) have imposed restrictions on how parents can raise their children, and sometimes in quite extreme ways (e.g. the Agoge[1]). And the child protection services in our modern Western societies take away plenty of children.

The rights of parents over children are more like the authority of the king in the Little Price - absolute, as long as they only use it in certain ways.

[1] https://en.wikipedia.org/wiki/Agoge

These are very commonly recurring rules indeed, but that does not make them absolute nor are they universal.

> There are absolute rules that we should adhere to, to imply that they are a social construction is to embrace nihilism and anarchy.

One can embrace nihilism without acting it out. We all have a choice to make: we can choose to follow the rules of our society or to not follow them. A small number of people choose to not follow them, and the rest of us choose how to deal with them to preserve the society the majority of us prefer. It happens every day.

It's all a choice, we have our free will that allows us to act however we choose. In the absence of absolute rules we can create our own rules to follow.

And yet we still extend certain dignities to their body and possessions. The deceased are treated by society in a way that suggests that they are not simply inanimate objects owned by their descendants - at least not for our practical day-to-day, non-philosophical purposes.

It's also counter to many legal systems to say that they generally do not have rights.

It can be helpful to change your frame of reference regarding rights, contracts, etc. of people who are deceased to not try to imagine that it is the dead person who has a right or status in the present (they do not) but the living person who had a status regarding the future before they died (they did). That future is now our present.

The anticipation of that right being fulfilled can inform your actions as a living person - you might, for example, have a long-term goal (while you're alive, obviously, dead people don't have goals) and set up a trust to accomplish that goal after you die. It can also inform you what may be or not be private after your death, so if you don't want family to read secrets you share with friends then don't put them on Facebook.

I know what you're trying to get at, but I really don't think any person works this way. It's not just about Facebook. If parents or relatives own everything I write in online form, I cannot write anything online if I don't want them to read it in case I die. I can also not write it down in a diary since they will own that too. So really the only way I can safely share my secrets is in speech to friends. Some people cannot meet with friends, I myself have friends I have never seen in real life. So should I just not talk about my secrets at all then? Possibly making my life worse because of it.

So you share everything you share with your trusted friends with your parents? You don't have any conversation online that you would not want to share with your parents? I think that's a pretty big assumption.

The dead still deserve privacy

Do they really? I don't think the dead have any expectations at all let alone the expectation of privacy. But also, she was a minor and therefore no real privacy rights with respect to her parents.

Why are they buried with clothes on, often in a literal black box? Their possessions are generally controlled by an executor, privately. The dead expect, again literally, their will to be followed.

Of course the dead expect nothing. But the living expect that their wills will be respected after they are gone. To preserve confidence, we must (make a show of) respect the dead.

One would hope that whatever we leave behind when we die gets treated with some dignity.

Whilst not applicable in this case (because the deceased is a minor), this always reminds me of how important it is to also make arrangements for your digital heritage.

Facebook allows you to set a legacy contact [1], who will have some basic rights, or you can request to then have your account deleted. This has to be initiated by someone/anyone after you pass away.

Google allows you to predetermine some basic actions [2], and share data from your account with other persons. This is triggered by not using the account for a set period of time (between 3 months and 1.5 years), so it activates automatically, but likely some time after you pass away.

[1] https://www.facebook.com/settings?tab=account&section=accoun....

[2] https://myaccount.google.com/inactive

As the court pointed out, diaries and letters would have gone to the parents in the past (I mean, they still would if people wrote letters). However, the magnitude of the data makes things a bit different. If I write something down in my diary, I know someone else might crack it open one day. If I write a letter to a friend, I know that that friend might give it to someone else or let them read it. But this isn't just letters and diaries. This is every page you liked, tons of post history, and every message you've ever sent.

Sure, the parents would have gotten letters she possessed, but in ye olden days (ie, 20 years ago) those would have been letters to her, not from her. And it wouldn't have included letters she threw away. Or maybe hid somewhere. This is everything. So it's a bit complicated.

In the end, I actually do agree with the courts... I think it's the most reasonable course. But I also think platforms like Facebook should give us the ability to delete data for this exact purpose, and we should use services like Signal for things that are truly sensitive that we never want to get in anyone else's hands.

This is a good decision. Letters and journals of dead children also go to the parents. I fail to see why online accounts should make a difference.

This itself is a good point: contrary to the assumptions a lot of us made in the 90s, cyberspace really isn't an entirely new plane of existence, and there's a lot of overlap with ideas & concepts which already exist offline & with which we're already familiar.

We already have a process for what happens to a person's belongings after death; a person's online accounts are belongings; therefor we already have a process for what happens to a person's online accounts after death. Yes, each jurisdiction will have its own rules, but again we already have a process for determining what happens to possessions in other jurisdictions upon the owner's death.

(as an aside, this is part of why '… but with a computer!' patents shouldn't be patentable: they're obvious)

An online account is a different thing from a physical object like a letter or journal, which can be freely transferred from one living person to another living person. (The right to reproduce the contents of letters and journals is another matter!) An online account is a contractual relationship. I don't know about Facebook, but most online accounts are explicitly non-transferable. So it's not at all obvious that Germany should make these things transferable on the contractee's death regardless of what's written in the T&Cs, if that's what's happened.

Contractual relationships have limited conditions under which they can be terminated. If you die, your heirs (or in this case parents) can inherit the contract and continue it.

Additionally, not everything the T&C says, up to and including "accounts are not transferable" is not automatically legal.

A rent agreement or a gym membership are also non-physical, yet are being inherited.

Sometimes they are inherited, sometimes not, depending on the T&Cs. If it's not transferable while the contractee is alive then I wouldn't expect it to be automatically transfered when the contractee dies.

i suppose one could argue that change should have gone in the other direction. but that's academical.

at least now we have consistency, this is of course good

Why wasn't this obvious to Facebook that they should give away a minor's account to their next of kin? Unless there was a will written saying to the contrary?

And it SO ARROGANT of Facebook to think they own the data to such an extent where they can effectively deny access to the data from the person who produced it, or in the case of death, to the next of kin.

But this raises some questions inside me. Maybe some one can shed some light here.

1. The physical letters that I send to a friend are with my friend. So he is now owner of it and when he dies, it goes to his legal heir. Though I am the one who wrote them. Should it not belong to my heirs since I am the creator ?

2. If we are mapping online to offline equivalents, who inherits the facebook messages ? Is it the sender or receiver ? The messages contain both sent and received items as in discussions.

I send a friend a physical copy of a letter and they own that copy. I still have a digital copy -- I use a word processor for all my letters -- so I own that copy. Does one take precedence? Can one of us "publish" the letter when the other dies?

To point 1, no. Once your friend gets them they're your friend's property. He dies, his heirs get his property (contingent on the contents of his Will). That you wrote the letter is irrelevant to the fact that it was his property.

> who inherits the facebook messages ? Is it the sender or receiver

I'd argue both, for the simple reason they both have a copy of the message.

Facebook should make it in the preference if i will allow my account to be opened by my parents or any family member after i die, that will make it easy for them. and definitely i will allow this.

You can’t overrule an inheritance law by adding some preference. Maybe in the USA, but in many country’s you can’t even write your children off their rightful inheritance.

In Germany you can deny them specific property, as the minimum share (Pflichtteil) only goes as far as monetary value goes, not some specific item. I.e., as long as you have over 50% of your net worth in the form of money, you are free to prevent your normal heirs/family from getting any physical assets you posessed.

But that's not what the parent poster asked for...

Put your master password to a password manager in your will.

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