About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

6 J. Eur. Consumer & Mkt. L. 256 (2017)
Digital Inheritance in the Netherlands

handle is hein.kluwer/jeucml0006 and id is 262 raw text is: Berlee, Digital Inheritance in the Netherlands - Country Reports - digital legacy.20 A similar approach is taken in an advice from the Law Society.21 These suggestions and advice are valuable, however, they do not overcome the issues around conflicting provisions of wills, terms of service, intellectual property and data protection laws, as discussed above. In their attempt to identify some issues in the area, The Commission rightly points out that digital assets '...fall out- side the sort of property that is normally dealt with by a will.',22 but it fails to acknowledge conflicts between wills and the disposition of digital assets online, which should be considered during this reform. With regards to copyright, The Commission argues that while the law is clear that the copyright is property of a sort, separate from one's computer and digital assets, it might not be clear whether the testator intends to give a beneficiary all the hardware and the copy- right contained therein.23 For this reason, as well, The Com- mission argues that the law of wills is not the best place to address these issues. This is thus quite a disappointing propo- sal, as it does not help harmonising piecemeal legislation in the area, which is one of The Commission's general aims in this reform of the law of wills. These issues are interrelated and turning a blind eye to one area of law does not leave an adequate scope for addressing the issues holistically. If the Commission wishes to introduce reform proposal for digital assets separately, however, they should initiate consultations as soon as possible, in order to address some of the burning issues identified in this paper and other relevant research. VII. Conclusion As explained above, it is clear that the UK law does not address the issues of digital inheritance adequately. The law that is potentially applicable is very unclear and conflicts with terms of service of major service providers. Legal profession has come up with inadequate solutions, attempting to address this muddled area. Therefore, the stance currently taken by the Law Commission does not contribute to resolving issues in this complex and growing area of concern. It is argued that the Commission should consider digital assets in the ongoing reform, as put- ting it off just creates more unclarity and confusion. More- over, a holistic approach does require addressing some of the issues through the law of wills. Other issues can be addressed in a digital asset - specific law reform, including the necessary data protection and copyright reform as argued in this paper. Digital assets reform should be introduced as soon as possi- ble, however, if the UK wishes to follow the examples of France and the US and legislate in this critical area. g 20 J Norris, 'Digital Asset & Digital End of Life Framework, DRAFT Version0 (Digital Legacy Association, 2015) Available at https://digital- legacyassociation.org/wp-content/uploads/2015/12/DeadSocial-Frame- work-DRAFT-website-version-000_5.12.2015.pdf accessed 10 Novem- ber 2017. 21 The Law Society, 'Online accounts, photos, music, emails - what hap- pens to your digital assets after your death?' (The Law Society, 11 May 2016), available at: http://www.lawsociety.org.uk/news/press-releases/ what-happens-to-your-digital-assets-after-death/ accessed 10 November 2017. 22 And this author argued this on a number of occasions, see e.g. E Har- binja, 'Post-mortem social media: law and Facebook after death' (n 7); E Harbinja, Legal Aspects of Transmission of Digital Assets on Death (n 3); E Harbinja, 'Virtual Worlds - a Legal Post-Mortem Account' (2014) 11(3) SCRIPT-ed, 273-307; E Harbinja, 'Legal Nature of Emails: A Comparative Perspective' (2016) 14 Duke Law and Technology Re- view, 227-255. 23 Law Commission (n 5) para 14.15. 241. Anna Berlee* Digital Inheritance in the Netherlands I. Introduction Our accumulation of assets is increasingly digital: our written letters turn into text messages, e-mails, and e-cards; our physical photo-albums are replaced by Instagram albums or stored on cloud-services such as iCloud, Dropbox, and Goo- gle Photos; and our (music) library is only a click or tap away, rather than stored in CD-collections, or bookcases. What happens to these digital assets upon our death? In the following, the topic of a digital inheritance is discussed in the Netherlands. Section II starts with a brief overview of the general rules regarding succession. Their application to digi- tal assets is discussed next. As we shall see, there is not one type of digital asset. A photo taken by the deceased is sub- jected to different rules than the music collection stored on a hard drive, which should in turn be distinguished from the music collection held in a Spotify library. Much of this data also constitutes personal data, which possibly triggers the application of data protection law. Whether the fundamental and constitutional right to privacy extends to the deceased and if data protection law plays a role in the winding up of a digital inheritance is discussed in section III. Before the con- clusions, a more practical approach is looked at. The topic of digital inheritance in the Netherlands has not led to a large body of scholarly literature or government initiatives. Much more prevalent are the private initiatives from notaries and companies for example that specialize in digital vaults and password managers. These are discussed in section IV. II. Dutch succession law 1. General rules regarding inheritance and assets On the death of a person, the heirs succeed by operation of law to the rights capable of transmission and to whatever the deceased possessed or held.2 This entails that heirs need not be transferred the individual assets or the patrimony as a whole, copyrights need not be transferred, nor is there a need for the contracts to be assigned to the heirs.4 No deliv- ery of the patrimony is required.s Rather, the heirs 'step into the shoes' of the deceased as it were, also referred to as the principle of saisine. Anna Berlee, Assistant professor at the Molengraaff Institute for Private Law of Utrecht University, Email: a.berlee@uu.nl. 1 Although vinyl records and polaroid photos are experiencing somewhat of a renaissance. 2 Article 4:182(1) Burgerlijk Wetboek (BW). Certain patrimonial rights are excluded such as the usufruct, Article 3:203(2) BW. 3 Article 2(1) Auteurswet. 4 Article 6:249 BW. 5 Also referred to sometimes with the German term Universalsukzession. See GS Erfrecht, commentaar op art. 4:182 BW. 256 EuCML - issue 6/2017

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most