It seems that more and more the terms digital inheritance or legacy, as well as digital executor, are becoming more and more installed in our vocabulary, all fed through some anecdotes in which even Hollywood stars appear.
But really,What is hidden behind that name of heritage or digital legacy??.
As a first approximation to the matter, it should be noted that although it is often said that the law always lags behind social reality, the legal issues that arise with the so-called digital inheritance are largely solvable with the existing rules of inheritance law. , interpreted, as required by article 3 of the Civil Code in accordance with the social reality of the time in which they are to be applied, fundamentally attending to the spirit and purpose of those.
Inheritance in an objective sense, is the set of assets, rights and obligations of a person, left at his death and not extinguished by his death.
Within this set of assets, which make up the inheritance, digital assets of a different nature may be present, accumulated by a person throughout his life. This fraction of a person's heritage is what is called digital inheritance, whose name is intended to respond to the destination of these assets when the person who owns them dies.
What happens is that these goods, rights and digital assets do not have a unique character, since it can easily be seen that it is not the same to be the owner of an email account, in a social network, such as facebook, twitter, linkedin..., than the right to read an ebook that we have purchased, listen to a legally downloaded song or view and share our collection of images.
For this reason, I believe that the assets that make up digital heritage can be classified into three large categories, each of which poses different problems:
a.- First of all we can refer to the social media or email accounts, in which we are the counterparty to a contract entered into with the company responsible for that service. It is reasonable to think that the rights that are acquired as a result of these contracts are of the so-called personal rights, which means that their transmission cannot be carried out, neither by inheritance, nor by any other means. But this does not mean that once a person dies, these files should remain as missing, since they may contain information necessary to be able to bring legal actions by the heirs, claim credits or prove the payment of debts.
In such cases, the problem that can be had is how to get to know its content.
b.- A second category of goods that are part of the digital heritage would be the rights of use acquired, such as the right to read the ebook we have bought, listen to the legally downloaded song or view and share our collection of images, use a betting house with accumulated money….
In all these cases, there is a patrimonial right, which can be subject to hereditary transmission. The problem is determining who can continue to enjoy these assets, and how to do it.
c.- And thirdly, reference should be made to the social media profiles, blogs, online domains, podcasts... that can be considered as a work subject to intellectual property, framed in article 10 of the Intellectual Property Law as original literary, artistic or scientific creations or in article 12 of the Intellectual Property Law that says that they will be subject to of intellectual property "the collections of works of others (...) that by the selection or disposition of their contents constitute intellectual creations".
In these cases, the problem will be how to manage the conservation and defense of the personal history that such content represents, as a moral copyright right.
The solution to the problems described in sections a) and c) can be solved through a very classic figure in inheritance law, how is the executor
This is a person in charge of complying with the will of the testator, and although its regulation, quite profuse in Catalan law, is designed for what have been the classic problems of inheritance law, especially the partition of inheritance, there is no doubt that the necessary powers can be attributed to it to manage the survival or oblivion of our emails and/or social network profiles.
The observations that can be made regarding the appointment of executor, would be that it is a position of trust, and that due to the scope of functions for which it is appointed, it is necessary for him to have a certain familiarity with the use of new information technologies. information. There are companies that advertise these services, under the name of digital executor, but in reality its function, in terms of its nature, does not differ at all from what an ordinary executor would be, known as a testamentary executor. In any case, it is very convenient to give clear instructions to the executor.
The solution to the problem of the transmission of the rights of use or ownership of books, online domains, music, videos, podcasts, games, photographs, blogs, ebooks and any other type of information or content, can be solved through attribution of the same by testamentary way or by succession agreement, to a specific person.
As we have said, these are rights that can be transferred like any other, always leaving them safe from what the general conditions of the companies that supply them may say. In the event that the beneficiary of these rights does not have sufficient knowledge to manage them, an executor may be entrusted with the necessary powers so that those beneficiaries can receive this information in the manner established by the testator.
THE PROBLEM OF THE KEYS.
Common problem to all the problems raised are those related to the fact that the "digital" executor to fulfill his function or the "digital" heir or legatee to enjoy the assets and rights attributed must have a list of keys for each one of emails, profiles, accesses..., so if they are included in the will, despite the secrecy of the protocol, their privacy may be compromised, due to the fact that they may become known by all the people who have the right to copy of the will
Although, in the field of common law, those who have analyzed this issue refer to the possibility of granting another compatible will in which the previous one is not revoked, or granting an act of notarial declarations or a notarial deposit, in which the access codes are contained, in Catalan law there are some figures that allow a very reasonable solution to these problems, such as codicils and testamentary memoranda.
The codicil is a document, with the same formalities of the will, by virtue of which a person adds something to his will. The testamentary memoirs are a private document, which alludes to a previous will and by virtue of them, provisions may be ordered that do not exceed 10% of the relict estate and that refer to money, personal belongings, jewelry, clothing and household items.
Both, codicils and memories, can be instruments to publicize the access codes, guaranteeing their confidentiality. However, the advantage of the codicil is evident, because if it is granted by a notary, you end up knowing its content, due to the fact that the Notary communicates it to the Registry of Last Will Acts. And only the person we are interested in will end up knowing its content of that codicil, and no one else. On the contrary, the testamentary memorandums or the acts of manifestations or protocolization, have the problem that their existence may not be known, and in the case of the memorandums, since they are a private document, their authenticity must be recognized.
Sources used: José Carmelo Llopis blog and @AbogadoAmigo.