Russia: Deceased individual's data and digital inheritance
Online accounts can be used not only for social media, but also as a business tool, with such accounts being used as online stores or to generate profit from advertising. However, when the online account belongs to a deceased individual, the decision of what to do with that data can become tricky, particularly as there is currently no specific regulation of digital inheritance issues in Russia at the time of publication. Anna Fufurina and Anna Kharina, from Noerr LLP, provide an overview to the current legislation that exists which covers deceased individual's data, and offer advice to companies on how to treat deceased individual's data.
The general privacy rules on processing personal data apply, the Federal Law of 27 July 2006 No. 152-FZ on Personal Data (as amended) ('the Law on Personal Data') specifies that consent for processing personal data can be obtained from heirs if no consent was received ante-mortem.
In addition, the Civil Code of the Russian Federation 1994 ('the Russian Civil Code') provides for the protection of privacy of correspondence, intangible assets belonging to the deceased, his or her honour or business reputation, and the author's rights. The Constitution of the Russian Federation of 12 December 1993 and the Federal Law of 7 July 2003 No. 126-FZ on Communications (as amended) also provides for the right to privacy of correspondence.
Recently, digital rights were recognised as objects of civil law relations as per the Federal Law of 18 March 2019 No. 34-FZ on Amendments to Parts One, Two, and Article 1124 of Part Three of the Civil Code of the Russian Federation which entered into effect on 1 October 2019. Digital rights are 'obligations and other rights, the content and conditions of which are determined in accordance with the rules of the information system that meets the criteria established by law.'
However, the concept of digital rights was adopted for digital commerce and is not suitable for solving the problems of digital inheritance.
Legal status of the online account
There are no specific rules in Russian law concerning the 'deceased's digital estate.' This has led to discussions on the way the existing legislation can be applied.
There are different views on the legal status of online accounts. Some researchers call them a database, however in a court case at the Arbitration Court of St. Petersburg and Leningrad region in 20121, a Russian social media network was not recognised as a database. The court came to the conclusion that a community account did not comply with the requirements of Article 1260 of the Russian Civil Code, as it was impossible to define the elements of the page which can be found and processed by a computer program.
Others say an online account can be a record on the server or a set of rights and responsibilities from an agreement with the social network administrator.
Another opinion is that no specific regulation is needed at all, as accounts without content do not have any value, and if there is any valuable content such as literature or a database, such content can be inherited according to the existing regulations, as exclusive rights which are rights in rem.
Recognition of an online account as part of the deceased's estate
There have been cases in Russia in which family members have requested access to the online accounts of their deceased relatives. The administrators of websites answered that they could not provide personal data unless the account was recognised as part of the deceased's estate by the court. However, there is no case law on such recognition so far.
The most popular viewpoint among researchers is that an online account can be recognised as part of the deceased's estate if it is commercially valuable, for example if it is an account used for business. This conclusion is drawn from the interpretation of Article 1112 of the Russian Civil Code which states that: 'the deceased's estate shall incorporate the items and other property owned by the deceased as of the date of opening of the inheritance, in particular, rights in rem and liabilities.'
Companies' own regulations
In the absence of legal regulation, some companies, especially international ones, set their own rules on how to treat the account of a deceased person.
The most effective and explicit rules at the moment are those set by the companies administrating websites, such as:
- allowing the user to choose a contact who is able to access the account after the expiry of a pre-set period of inactivity of the account;
- using a special mode of memorialisation or removal of an account on request where one can choose a contact to be able to make decisions about the account once it is memorialised;
- providing a form for deactivating an account; and
- providing the option to delete the page or switch it to a special mode.
Initiatives and perspectives
In April 2019, there was extensive discussion in the Russian mass media about a proposal by a member of the regional Parliament of the Leningrad Region on envisaged amendments to the Russian Civil Code that would allow the inheritance of accounts as objects of intellectual property and even the creation of a 'Digital Code.' The initiative has gained support among some factions in the Federal Assembly, but the Ministry of Justice of the Russian Federation has not yet made any comments. On the other hand, several members of the State Duma have suggested that social networks should simply be obliged to delete accounts that are inactive for a long period of time to prevent fraudulent actions to those accounts.
1. Case no. A56-58781/2012