Article: Electronic Communications of Deceased Users: How European Law Can Help Strike a Balance Between Post-Mortem Access and Privacy

Yann Conti (University of Geneva - Faculty of Law) recently published, Electronic Communications of Deceased Users: How European Law Can Help Strike a Balance Between Post-Mortem Access and Privacy, 2024. Provided below is an Abstract:

An issue of particular interest in the emerging field of digital inheritance is whether heirs and/or loved ones have a right to access the electronic communications of the deceased user.

Absent supranational law applicable to this question-and more generally to digital inheritance-, the ways in which Member States have dealt with this issue have given rise to a mosaic of different approaches throughout the European Union.

The situation may well change in the near future, since the matter has been added to the European agenda in the ambit of the Digital Decade Policy Programme of the European Union. In this context, the question arises as to how European law could effectively contribute to the regulation of digital inheritance.

Regarding the access to electronic communications of deceased users, the various solutions developed by Member States reveal strong common grounds from a functional perspective: on the one hand, the firm desire to take into account privacy concerns of the deceased user and, on the other hand, the trend in favor of reinforcing the latter's right to self-determination, which is jeopardized by the terms and conditions drafted by service providers.

This finding takes on its full meaning when we consider that these two fields are precisely where European law can play a significant role. Sensible reforms can be considered regarding two key tools that are in the hands of the European legislator: the General Data Protection Regulation and the Unfair Terms Directive.