Turkish Regional Courts of Appeal (“the Court”) has recently resolved that digital accounts, digital wallets, cryptocurrency, and all kinds of data with tangible and intangible value in digital storage areas are considered as “digital heritage”. The decision has considered that heritage is a whole with its assets and liabilities including digital assets, whilst including certain issues regarding the right to privacy of the legator. Since the importance of digital assets increase depending on the continuous development of the digital world, the considerations of this decision may likely shed a light on the legal studies in this field.

The Dispute and the First Instance Decision

In the case evaluated by the Court, the plaintiff claimed that his/her deceased spouse had assets that could be subject to heritage in the iCloud cloud computing system. The plaintiff also claimed that e-commerce site account, gift checks and family photos of his/her deceased spouse were kept in the account. The Claimant requested that iCloud identity of his/her spouse is accepted as the assets of the heritage and access to this account as being the inheritor.

Hence, when the plaintiff is contacted by iCloud, the officials of the company stated that access permission to the account will only be provided by a court decision to be received by the plaintiff in a way that constitutes “legal consent”. However, the court of first instance considered that providing access to the iCloud account in the mobile phone of the deceased spouse, violates the right to privacy of the deceased spouse and the request of the plaintiff cannot be subject to the determination heritage; by thus the request of the plaintiff was rejected.

Considerations of Regional Courts of Appeal

The Court in its recent landmark decision, considered that digital assets of the legator should be included in the heritage and subject to the determination of the heritage. In this respect, the Court held that the decision of the first instance court relying on the fact that the e-mail account of the deceased spouse should be evaluated within the scope of privacy, was erroneous.

Although this decision of the Court included significant considerations in relation to the concept of digital heritage, issues regarding the right to privacy was not elaborated and thus, the justifications in the decision opened up discussions in the doctrine. Likewise, the Court neither addressed the discussions nor shared its opinion on the personal assets that cannot be measured in money. It is observed from the decision of the Court that the first instance court did not draw a proper conclusion since it rejected the plaintiff's request on the grounds of the right to privacy.

On the other hand, looking at the whole of the decision, the Court referred the expansion of the scope of the heritage on the “alteration of the concept of ownership”. The Court also, held that only tangible assets such as advertising revenue, digital wallet accounts and cryptocurrencies can be included in the heritage. In this respect, it has also been argued that this point of understanding ignores the issue of digital relations being subject to inheritance law. According to the type of digital relationship, the contracts between digital providers can be described as contracts of lease, work, brokerage, services, or sales. In these cases, save for the end user license contracts, it is also argued that inheritor can become the party of the contracts particularly in contracts of work since the party that will perform the service is important. Consequently, it is argued that the digitalization of these contracts is not an issue that requires to be resolved by separating from the general principles of inheritance law.

Taking into account all of these, the decision of the Court is a landmark and promising decision that gives a place to the concept of digital heritage even though some issues were not elaborated in extenso. Since the importance of digital assets increase depending on the continuous development of the digital world, many regulations regarding the protection of digital assets and digital heritage have commenced to take place for the protection of cultural heritage at the global level. However, it should be considered that the concept of digital heritage does not have a common definition and thus regulations made on this field also should include but not limited to domain names, websites, social media accounts having a great number of followers, rights gained in game applications due to characters being removed until they reach advanced levels and customer accounts in online stores, provided discounts and privileges.

Ezgi Ceren Aydoğmuş