| The inheritance of digital heritage has become a challenging problem as the rapid development and popularization of information network technology.Digital heritage refers to the digital information stored in a certain carrier or network after a natural person died.Throughout the world,digital heritage inheritance disputes are commonly seen,and the measures to solve this problem are different in legislation of different countries and districts.The demonstration legislation of the United States at the federal level,the Uniform Fiduciary Access to Digital Assets Act,has adopted a tendency to respect the provisions provided in the Internet Service Agreement,which has also been adopted by most states.Germany and Britain utilize the inheritance regulations of ordinary traditional property to regulate the inheritance of digital heritage.The judgment of the Tulongdao case indicates the possibility of inheritance of digital heritage in our country.By summing up the cases of Yahoo and Facebook,disputes over the inheritance of digital heritage often first break out between heirs and internet service providers.The main problems focus on the lack of legal norms of digital heritage,the limitation of digital inheritance by internet service agreement and the conflict between inheritance rights and privacy and communication secrets protection of the deceased and third parties,which involves the conflict and balance among contractual autonomy of the internet service provider,inheritance rights of heirs and privacy of the deceased and third parties.The law of our country has not made clear the specific attribute of digital heritage,nor has there been a clear rule of digital inheritance.inconsistency of judicial practice in our country,some courts do not accept this kind of cases,some cases are closed through mediation,some of them are freely determined by judges by virtue of their own legal knowledge literacy,and different results appear in the same type of cases,so it is necessary to clarify whether the digital heritage is inheritable or not,in order to provide an effective way to solve the related problems.Digital heritage is invisible and virtual,involving secrecy,the duality of possession and of value.It can be classified into private accounts and information,social accounts and information,digital asset accounts and information.Digital heritage has the possibility of exclusive domination and management,combined with analysis of the process of formulating the provisions of digital heritage in the General Provisions of Civil Code of our country,it's fair to draw the conclusion that digital heritage has the attribute of property.For the ownership of digital heritage,the digital account is created by the energy and money invested by the internet service provider who also has more dominant ability,therefore it shall be owned by the internet service provider.However,the content in the account is uploaded or created by the user,and what the internet service provider provides is a space to store the corresponding content,so such content should belong to the user.Heirs can inherit the digital heritage of account class by inheriting its right to use.Although there are restrictions on the inheritance of digital heritage in internet service agreements,the validity of specific terms and conditions still needs to be inspected by whether the provider of the agreement has fulfilled his obligations of presentation and explanation.Without the express consent of the deceased,despite the right to safeguard his privacy interests infringed,the heir himself shall not be treated as the deceased,so the digital heritage involving the privacy of the deceased shall not be inherited,except in the case of inheritance by an heir who shares common privacy with the deceased.Through the analysis of the constituent elements of the obligation of communication secret protection in the Telecommunication Regulations of our country,the heir is not the communication participant and it is not possible for a third party to permit the disclosure of the communication information by implication,so the digital heritage cannot be inherited without the consent of the third party,even if the deceased agrees the heritage to be inherited.In order to solve the problem of digital inheritance,it is necessary to perfect the relevant legal norms.A judicial interpretation of Article 3(7)of the Inheritance Law should be first issued by the Supreme Court,and then digital heritage be included in the scope of the estate in law.In the absence of the express consent of the deceased,digital heritage involving the privacy of the deceased(private accounts and information)shall be excluded from the scope of inheritable digital heritage,exceptthat the heirs share the common privacy with the deceased.Social accounts and information(except business accounts)may be inherited only with the express consent of the heirs and the third party involved;Business accounts and accounts that store digital assets can be generally inherited because of their obvious economic value.The account of digital credit assets and its information are highly related to the personality of the deceased and may not be inherited.Both statutory and testamentary succession may apply to digital heritage,and the validity of electronic wills shall be recognized to reduce cases where digital heritage has no basis for distribution.The regulation of the network service agreement requires the network service provider to adjust the unreasonable content such as prohibition of inheritance in its service agreement,and set up special online tools for users to choose the disposal of the corresponding digital heritage.The heirs shall treat digital heritage properly and the internet service provider are obliged to assist the inheritance and fulfill its duty of safety and security,limiting the authority of the heirs to protect the privacy of the deceased.With the synergy of the self-regulation of internet service providers,the obligation restriction of the heirs and the regulation of law,the inheritance of digital heritage can be realized properly. |
PDF Full Text Request