□ Cheng Xiao (Professor, Tsinghua University Law School)
In the modern society with highly developed network technology, people send and receive emails, communicate with others through instant messaging tools, post comments and photos on social platforms, shop online, listen to songs and watch plays, browse news and retrieve information every day in their daily lives and work. People’s activities will leave traces in the network world and digital society, and these digital footprints will become an integral part of digital assets after accumulation. The scope of digital assets is very extensive, including all a series of intangible information products related to the digital world, such as personal information on social networks, e-mail accounts and their emails, Weibo or tweets, databases, various virtual properties (such as bitcoin, virtual assets in online games, online e-books, etc.), digital texts, images, music or sounds such as videos, audio and pictures, and various shopping, services or social networking sites. Whether a natural person can inherit the digital assets in his online account after his death is a legal issue. The inheritance of the deceased’s online account has caused great controversy at home and abroad, and some typical cases have occurred. For example, the Ellsworth case in Michigan in 2005 and the Facebook case in Germany in 2018. In 2011,There has also been an incident in China in which a woman asked Tencent to inherit her late husband’s QQ number.
At present, many online enterprises have made unilateral provisions on the inheritance and transfer of online accounts through format contracts or privacy policies. For example, Tencent directly stipulates that the ownership of WeChat account and QQ account belongs to the company, while the right to use belongs to the initial registration applicant, and clearly stipulates that it is not allowed to buy, sell, donate or inherit the account. Other network enterprises basically make similar provisions. The main reasons that Internet companies find out for this practice are as follows: First, the information in the account involves the personal information and privacy of the deceased, and may also involve the personal information and privacy of others. If the account of the deceased is allowed to be inherited or transferred, it will not only fail to protect the privacy and personal information of the deceased, but also infringe on the privacy or personal information of others. Secondly, the account belongs to personal information, allowing it to be transferred or inherited will also cause confusion in the public’s identification of specific natural persons. For example, a big V of a social network transfers his account to others. Is the speech made by that person through this account his own? The public will be confused, which is not conducive to maintaining a good network order. Moreover, the account number can be transferred and inherited at will, which is not conducive to the management of network service providers, the maintenance of public interests and the protection of consumers’ rights and interests. Finally, some people in internet companies even think that the vast majority of virtual property is produced by the R&D and creation of internet companies (employees’ intellectual creation), which has the characteristics of intangible property, and the system of right ownership and right transfer should be constructed according to the intellectual property system.
It should be said that the above reasons are untenable, neither reasonable nor legal. First of all, as far as the account number and its password are concerned, it has neither economic value nor spiritual value. However, because the control over intangible things such as data and information with economic value and spiritual value can be obtained through the account, the account is very important objectively, and even the account itself belongs to the information related to the identified or identifiable natural person, thus becoming personal information. Paragraph 2 of Article 1034 of China’s Civil Code clearly regards "e-mail" as a kind of personal information. Obviously, discussing the transfer or inheritance of the account number cannot be limited to the account number itself. Account number is generated by network service contract between network users and network service providers, which belongs to the category of creditor’s rights and debts. However, with the development of network information technology and the human society entering the information age. More and more economic and spiritual values will be gathered in various types of online accounts, and various intangible objects with economic or spiritual values can also be obtained and controlled through these online accounts. If we discuss the ownership of account only in the legal relationship between network users and network companies, there will be great disadvantages. Because, in the case that network companies can determine the rules of account transfer and disposition through format contracts and technical means, the rights and interests of natural persons as network users will be in a very uncertain state, which is also very unfavorable to the development of digital economy.
Secondly, after the death of a natural person in the modern information society, the property left behind is not only property rights, creditor’s rights, intellectual property rights and equity, but also a "digital heritage". People can dispose of personal legal property or digital heritage through wills. The law should respect this. If the decedent did not make arrangements for his digital heritage through his will before his death, the right to dispose of the digital heritage should of course be decided by the close relatives of the deceased, rather than arranged by the network service provider through standard terms. Internet companies are worried about the confusion caused by the inheritance and transfer of accounts, and some control and prevention can be carried out through format clauses, but this cannot be used as an excuse to deprive natural persons of control and dominance over accounts and the possibility that accounts will be inherited after death.
In fact, when discussing the transfer and inheritance of accounts, it is important to consider the forms of various interests behind accounts. If it is only a simple property interest, such as Alipay’s account number corresponding to the funds deposited in the account, the transfer or inheritance of this account number is only the transfer or inheritance of money creditor’s rights, and there is no legal obstacle. However, if these interests are not pure property interests, but spiritual interests or mixed interests, the problem will be more complicated. For example, social accounts and e-mails will involve the personal information and privacy of the deceased and the personal information and privacy protection of others. When drafting China’s personal information protection law, some members of the Standing Committee, experts and the public suggested that since the Civil Code provided for the protection of the name, portrait and reputation of the deceased, it should also refer to this provision to provide for the protection of the personal information of the deceased. The opposing point of view is that Article 994 of the Civil Code has stipulated the protection of the personal interests of the deceased, such as name, portrait, privacy and reputation, and there is no need to stipulate the personal information of the deceased. If close relatives are allowed to exercise their rights against the personal information of the deceased, it will involve the privacy of a third party and may lead to related vulgar behavior or illegal behavior. Finally, China’s personal information protection law adopted the former view. Article 49 of the law clearly stipulates: "If a natural person dies, his close relatives can exercise the rights of consulting, copying, correcting and deleting the relevant personal information of the deceased for their own legitimate and legitimate interests;Unless the deceased had other plans before his death. The author believes that this provision of the Personal Information Protection Law is very correct, and it plays an important role in protecting the personal information of the deceased and safeguarding the personal interests of the close relatives of the deceased. Because, compared with the practice that Article 994 of the Civil Code can only provide relief afterwards, the Personal Information Protection Law provides a positive and active protection, which belongs to prevention in advance. In other words, the close relatives of the deceased do not need to file an infringement lawsuit when the privacy of the deceased is violated, but can directly exercise the rights of natural persons in personal information processing. Moreover, when the personal information of the deceased is infringed, but the privacy, portrait and name of the deceased are not infringed, but only the legitimate rights and interests of the close relatives of the deceased are endangered, the close relatives are allowed to exercise the corresponding rights on the personal information of the deceased, and the legitimate rights and interests of the close relatives can be better protected.
Of course, in order to respect the wishes and privacy of the deceased and prevent adverse effects on the privacy and personal information rights of people closely related to the deceased, Article 49 of the Personal Information Protection Law also makes corresponding provisions from two aspects. On the one hand, only the close relatives of the deceased can exercise their rights to the relevant personal information of the deceased for their own legitimate and legitimate interests; On the other hand, the deceased is allowed to make arrangements for his personal information after death according to his wishes, such as allowing specific relatives to exercise it, authorizing the estate manager to exercise it or prohibiting anyone from exercising it. It can be seen that it is unreasonable to deny the inheritance of account number and email address on the grounds of protecting the privacy of the deceased.
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