Digital Inheritance and Post Mortem Data Protection: The Italian Reform

Abstract

The painful case which gave rise to the German Supreme Court’s (BGH) 2018 landmark decision on digital inheritance offers a benchmark for evaluating the different solutions that the law could provide to protect interests involved in digital inheritance. As is well known, the General Data Protection Regulation of 2016 (GDPR) does not apply to the personal data of deceased persons. It is therefore left to the Member States to provide for rules regarding the processing of the personal data of the deceased. Notwithstanding the absence of European indications on the specific issue, the GDPR has encouraged national legislatures to adopt specific measures regarding data protection for deceased persons. In this framework, the Italian legislature recently enacted an interesting set of rules through Legislative Decree no 101 of 2018 on the adaptation of national laws to the GDPR. The main argumentations used by the BGH judgment will be discussed in the light of the Italian provisions. In particular, this article will focus on the ‘inheritance-based’ solution adopted by the German court, on the problem of control of unfair terms, and on the relevance of the GDPR with respect to the position of third parties.

Keywords: Data Protection, Digital Inheritance, Social Networks, Unfair Terms

JEL Classification: K10, K12, K19, K20, K36