With the introduction of digitalization into our lives, new discussions are seen in almost every field of law. One of these is inheritance law. Especially in recent times, the subject of digital estate and the values ​​that can be subject to digital estate have been the focus of discussions in terms of inheritance law.

Today, beyond meeting the need for socialization by becoming a member of social media platforms through social media user agreements, we generate income through these social media accounts. Therefore, these platforms, which also have an income-generating function, also bring legal problems with them. For example, in the event of the death of a person with a very high number of subscribers, new legal problems arise, such as determining whether it is possible for the heir to continue using this account and generate income.

In Turkey, the iCloud case dated 13.11.2020 of the 6th Civil Chamber of the Antalya Regional Court of Justice is currently in question. The case is that the spouse of the deceased used photographs, audio and video recordings, e-commerce site accounts, gift certificates, coupons, etc. The subject of the case is the request for a court order to obtain the password of the deceased in order to access the iCloud account in which the deceased is located. Although the Denizli 4th Civil Court of Peace rejected the plaintiff’s request, the Antalya Regional Court of Justice ruled that other digital assets, especially the “Apple iCloud” identity in question, can be included in the assets of the estate (Antalya 6th Regional Court of Justice, Case No. 2020/1149, Decision No. 2020/905, 13.11.2020.).[1]

According to Article 599 of the Turkish Civil Code; Except for the separate cases stipulated in the law, the heirs directly acquire the real rights, receivables, other property rights, possession of movable and immovable properties of the deceased and are personally liable for the debts of the deceased. Therefore, unless otherwise provided by law, assets with economic value, actual situations and even relationships are included in the estate provided that they are inheritable. Therefore, it is necessary to accept that digital assets are also included in the estate by interpreting the provision broadly.

However, there is also a view in the doctrine that the legal relationships related to the deceased person will not be included in the estate. However, this view is criticized for bringing a general proposal for every situation. While different decisions can be made depending on the characteristics of the concrete case, there is no uniform application in practice on this issue. Indeed, in the Facebook case in Germany, the Berlin State Supreme Court and in Turkey, the Denizli 4th Civil Court of Peace ruled that the access requests of the heirs would violate the privacy of the “deceased” and that in this sense the values ​​in question were not suitable for transfer; while the German Federal Court and the Antalya Regional Court of Justice 6th Civil Chamber (among other reasons) always ruled that the digital values ​​of the deceased (in the present case, the Facebook account and the iCloud account) would not be considered within the scope of privacy and that they could be suitable for transfer.[2]

The dominant view in Turkish law argues that since the personality of the deceased ends with the death of the deceased, the personality rights will also end. Therefore, there will be no violation of the personality rights with the death of the deceased. According to the view that distinguishes according to the nature of the personality values, which we find more convenient in terms of application, it is necessary to make a distinction between personality values. According to this distinction, it is possible to transfer economic value personality values ​​to the heirs.

According to the view that distinguishes according to the nature of the personality values, the rights and debts arising from user account agreements such as Twitter, Instagram, iCloud will be considered as digital estates and will pass to the heirs with the opening of the inheritance. Since the principle of universal succession is valid in Turkish law, all asset values ​​other than the rights related to the personal asset will pass to the heirs as a whole. For example, contractual relations to which the deceased is a party can also pass to the heirs. In this context, social media user agreements (together with the rights and debts arising from them) will also pass to the heirs.

What should be taken into consideration in terms of whether user agreements are suitable for transfer to the estate; It is emphasized that this is the act of the service provider and that this act is not a personal act but is aimed at providing technical services such as providing service to the communication platform, publishing content shared and requested by the user, etc., that the identity of the other party is not important for the service provider, and that in this contract (at least if we exclude special cases such as matchmaking sites) the account itself is in the foreground rather than the account owner.[3]

As a result; views that argue that it is not possible to transfer social media user agreements to the estate, put the income-generating function of social media into the background and remain distant from current developments. For this reason, we share the view that accepts the transfer of user agreements with economic value to the heirs. We adopt a dynamic understanding of law that can respond to current developments and the transformation created by technology.

REFERENCE

Doğancı, D. E. (2022). Sosyal Medya Kullanıcı Hesabı Sözleşmelerinin Dijital Tereke Yönünden Değerlendirilmesi. Marmara Üniversitesi Hukuk Fakültesi Hukuk Araştırmaları Dergisi, 28(1), 329-370.

Turkish Civil Code and Related Legislation

[1] Doğancı, D. E. (2022). Sosyal Medya Kullanıcı Hesabı Sözleşmelerinin Dijital Tereke Yönünden Değerlendirilmesi. Marmara Üniversitesi Hukuk Fakültesi Hukuk Araştırmaları Dergisi, 28(1), 329-370.

[2] Doğancı, D. E. (2022). Sosyal Medya Kullanıcı Hesabı Sözleşmelerinin Dijital Tereke Yönünden Değerlendirilmesi. Marmara Üniversitesi Hukuk Fakültesi Hukuk Araştırmaları Dergisi, 28(1), 329-370.

[3] Doğancı, D. E. (2022). Sosyal Medya Kullanıcı Hesabı Sözleşmelerinin Dijital Tereke Yönünden Değerlendirilmesi. Marmara Üniversitesi Hukuk Fakültesi Hukuk Araştırmaları Dergisi, 28(1), 329-370.