Digital inheritance: what it is, what it is not, and how to plan for it
Every day, we entrust an ever-growing share of our lives to the digital world: photographs, conversations, and, more generally, personal data. But what happens to this intangible heritage when we are no longer here? Digital inheritance is a topic that concerns each of us, yet few people plan for it.
What Digital Inheritance is
The expression digital inheritance should be understood in a broad sense and encompasses a heterogeneous set of legal relationships, often not identifiable a priori.
In general, it is possible to distinguish between:
- offline digital assets: files, software, and other digital documents, such as images, audio, and video, stored on physical media (e.g., hard drives, DVDs, smartphones), whether protected by access keys (passwords) or not and/or virtual ones (so-called cloud storage, such as OneDrive and iCloud);
- online digital assets: content available on the web and accessible via accounts with service providers such as Google, Facebook, Amazon, Instagram, or PayPal, or via online banks and credit cards.
Digital assets can also be distinguished based on their nature:
- those with economic content, such as cryptocurrencies and online payment accounts, that have intrinsic economic value;
- those with non-economic content, of predominantly sentimental value and linked to the individual’s personal sphere. Among the latter are, for example, family photographs, audio and video recordings, and personal messages.
What it is not
Not everything digital is automatically inheritable. Specifically, the following are NOT part of digital inheritance:
- accounts — including electronic signature accounts and digital identity accounts such as SPID — which are instead expressions of a strictly personal contractual relationship with the service provider;
- credentials, which are merely virtual keys to access the content, whether economic or non-economic, that they protect;
- content used under licence for which a subscription fee is paid (such as Office 365, Netflix, or Spotify).
The regulatory framework
In Italy, there is still no comprehensive legislation dedicated to digital succession.
The main regulatory reference is Article 2-terdecies of the Privacy Code (Legislative Decree 196/2003), which provides for the continuation, among others, of the rights of access (Art. 15 of the GDPR), rectification and erasure (Arts. 16 and 17 of the GDPR) and restriction of processing (Art. 18 of the GDPR) after death. These rights may be exercised by those with a legitimate interest of their own, by an agent designated by the deceased, or by those acting for family reasons deserving of protection.
A significant step forward came at the European level. On 23 January 2023, the European Parliament Declaration on rights and principles for the digital decade (2023/C23/01) stated that: «…every person should be able to determine their own digital inheritance and decide what happens, after their death, to their personal accounts and the information concerning them». This principle is of great importance but, for the time being, is only programmatic.
Practical problems when one’s digital estate is not planned for
Italian case law has dealt with several emblematic cases.
In February 2021, the Court of Milan granted the appeal of the parents of a young man who died in a road accident, who sought to access the contents of their son’s Apple account — including recipes related to his work as a chef — to publish them in his memory. In a similar case, the Court of Bologna ruled on a mother’s request to recover photos and videos from her son’s device after he had committed suicide, to understand the reasons for his act.
In both cases, Apple refused to provide the credentials and required a court order meeting certain requirements to grant access to the data contained in the Apple ID. The heirs were thus forced to apply to the Court on an emergency basis, as Apple had indicated that its systems would automatically “delete” accounts after a period of inactivity. This highlights one of the central problems: the major Internet Service Providers are often based outside Italy and Europe, and in the absence of preventive arrangements by the deceased, the heirs are often forced to resort to costly litigation, including international proceedings.
A further issue concerns the conflict between the deceased’s right to be forgotten and family members’ interest in knowing the contents of their accounts. The aforementioned Article 2-terdecies appears to exclude the right to be forgotten post mortem when the data subject has not expressly expressed such a wish, but the boundary remains thin.
Practical advice for the transmission of digital inheritance
The legal framework in this area is uncertain and constantly evolving. Here are some practical precautions.
- Draft a will with digital provisions. A will is the most appropriate instrument for disposing of one’s assets and interests, including digital ones, whether or not they have economic value. In a will, it is possible to specify who will be authorised to access one’s data and on what conditions.
- Appoint a digital fiduciary (a so-called post-mortem mandate). One may entrust a trusted person with one’s access credentials (passwords) and instructions on what to do in the event of death: destroy the digital assets (presumably the non-economic ones) in whole or in part, or deliver them to identified individuals.
- Use the dedicated tools offered by platforms. Many platforms allow the designation of a “legacy contact” who can manage the account after death, or the initiation of procedures to close or convert the account into a memorial one.
- Expressly prohibit the exercise of access rights to one’s digital assets after death by means of a written declaration communicated to the data controller(s) (if any). In such a case, no one will be able to exercise those rights after death.
In conclusion, planning one’s digital succession in advance helps avoid the need for family members to face complex and costly legal proceedings to recover photographs, documents, or financial resources.
