Digital inheritance, Antalya 6th BAM decision, protection of personal data

TMK599/1:" The heirs acquire the inheritance as a whole upon the death of the inheritor in accordance with the law."

TMK599/2: "Without prejudice to the exceptions stipulated in the law, the heirs directly acquire the same rights, receivables, other property rights, possession over movables and immovables of the heir and become personally liable for the debts of the heir."

Of course, this rule is applied in cases where the inheritance is not rejected and the rights of the deceased in the assets of the deceased are transferred to the heirs. In one case, the heir requested the icloud password of the deceased, and the court of first instance rejected this request. However, Antalya 6th Bam later accepted this request. Could the court of first instance have relied on Article 599/2 when denying access to the icloud account? There are videos, photos, correspondence of people on these, are these assets that can be inherited in the sense of 599? In order for these to pass to the heirs, as you read in paragraph 2, there must be either a right in rem, a receivable or any other kind of asset right.

When the TMK was enacted, digital inheritance was not an issue, the law was revised, but it was not on the agenda then either. Therefore, you can say that there is a gap here. There can be two types of gaps, real and unreal gaps. A real gap refers to the situation where there is a deficiency, a gap in the law because the legislator could not think of it when making the law. In an unreal gap, there is a provision in the law, but when this provision is applied, it is said that there is a gap in the law because fair results will not arise. In both cases, the judge can create law on a case-by-case basis, without establishing general rules, by using his/her authority under Article 1.

Photographs, videos and correspondence that a person takes as a souvenir, which have no artistic value, cannot be considered as assets. However, there may be things such as crypto-assets that would objectively have a monetary value if they were put on the market. Such a distinction must be made.

The problem is that if you access the icloud account, you can access rights that may have financial value, but you will also access information and data that the deceased person may not want you to access, and there is no mechanism to control this. In this respect, how right is it to share this data?

There is a decision of the Personal Data Protection Board, a decision made in 2019. Two values are in conflict with each other, can it be said that the person has no rights over his/her personal data upon death? According to the law on the protection of personal data (kvkhk), when the person dies, that data is dead in a sense, it is no longer possible to share that data with someone else. The board has decided in this way, the wife of the person wants to know why her husband died, the hospital refuses, and the board refuses. The person hid their illness for years, did not want it to be known, did not want to be known in this way, is it right to share this data? Likewise, if he wanted to share his photos, correspondence, videos, if he wanted to share these, he could have given his password to someone when he was alive, if he didn't give it to someone, there is a reason.

There is a regulation, the personal data protection board has not implemented that regulation. The Board's decision is actually against this regulation. Article 11 of the regulation on personal health data; "The legal heirs of a deceased person are individually authorized to receive the health data of a deceased person by submitting the certificate of inheritance. The health data of a deceased person shall be kept for at least 20 years." It says. Regulations are issued to explain the laws, they cannot be contrary to the law on which they are based, does this regulation comply with the kvkhk? It is neither contrary nor appropriate. This is an issue that should be regulated by law, but it is regulated by regulation.

Even if there is no health data, as an heir lawyer, you can make this regulation article as a basis in your petition when requesting the icloud password. Can you argue that it is also recognized by the legislator that the heirs have rights over the deceased's data?

According to Article 11 of the Regulation, heirs will be able to access the health data of the deceased, as a counter-argument, it can be argued that "if the legislator has made a special regulation and regulated that only health data can be given to heirs with this special regulation, it means that access to other data should not be possible".

If the sharing of sensitive information such as health data with heirs is foreseen, it is quite possible to share other data such as photos and videos.

Would it be possible for the court to allow access to icloud, and for the court to classify that information itself, and to ask the heirs to leave the ones that are included in the asset element among them, and not to share the personal data that does not fall within this scope? Can't the judge do that? Can Apple do that? If the court were to do it, it would have an expert witness do it, and it is against the law for the expert witness to see it. Therefore, can Apple technically do this?

Can a social media account be inherited when an influencer dies? Can his heirs claim access to this account under 599/2? It seems that a social media account in itself does not register an asset right, but there are many reasons why an influencer's account can be considered as an asset.

Is there a post mortem personality, is a post mortem personality legally recognized and protected? Yes, there is, the lawmaker has made such a regulation in the regulation (although the board does not apply it). If there was no post mortem personality, if it was said that the deceased had no right or interest in the data upon death, the legislator would not have made such a regulation. In other words, there is post mortem personality, we say that personality starts with full and rightful birth and ends with death, but the rights of the person on personal data do not end with death.

If the person wanted this information to be shared, he/she could have made arrangements before his/her death, the most important of which is the will, the form requirement for the will is the form of validity, it is written and signed by hand, despite this will of the legislator, there are actually cases where the courts have ruled that the will can be valid even if it does not fully meet the validity requirements of the will, in order to uphold the will of the deceased. If you want someone to have access to these accounts after your death, you fill in the form there, and when you die, the person on the form is contacted and the information is shared. Filling out the form is not a will.

In France, there is a regulation stating that it is possible for a person to make a legally valid declaration of will on digital platforms regarding the storage, deletion or processing of personal data without the need for a will, but there is no such specific regulation in Turkish law. Therefore, the fate of the digital data of the inheritor will be determined according to the legislation in force, and from there, we will decide what kind of transaction is the transaction carried out through the platform on the internet account. Is it an inter-provisional transaction or a testamentary disposition? If you say it is a testamentary disposition, it is not possible to consider it valid according to the legislation. But if you say that this is an inter-provider transaction, the fact that it was made in electronic form will be valid. The Court of Cassation, referring to a decision of the Swiss Federal Court, says that if it is not easy to define whether the transaction is an inter vesting or a testamentary disposition, it should be considered as an inter vesting transaction. In such a case, the jurisprudence of the Swiss federal court, which is based on the interests of the deceased and gives priority to his will, shall apply. This decision does not apply to social media accounts, but we can apply it by analogy (also in relation to the inheritance of digital assets) regarding the fate of the social media account and show it as a precedent. Therefore, he says that we should consider this as an inter-provider transaction, taking into account the interests of the deceased.

Law on Intellectual and Artistic Works (FSEK), if we say that some of the data in the icloud account are works within the scope of FSEK, the financial rights arising from them pass to the heirs according to Article 61 et seq. of FSEK. For example, he wrote a poem, it is a work, it must bear the characteristics of the person who created the work for it to be a work. There is also Article 19 of FSEK, the moral rights arising from the ownership of the work are not eligible for inheritance, however, the use of these rights is possible in persons who are authorized to use them after the death of the author. In other words, it is debatable whether such assets can be considered within the scope of the relevant provision and made accessible to third parties. According to intellectual property law, intellectual and artistic products that bear the personal qualities of their owner are protected under FSEK. Therefore, the pictures and videos in icloud can be protected within the scope of FSEK, but for this to happen, they must be accepted as works, and in order to be a work, they must have a special characteristic, if they have artistic value and have a special characteristic, then they can be evaluated within the scope of FSEK. Whether digital data can be used by heirs within the scope of FSEK is a matter of debate.

Another issue is Article 653/2 of the TCC, which states that "Family documents and items of special memorial value for the family may not be sold if one of the heirs objects. If there is a dispute between the heirs, the judge of the peace, taking into account local customs, or if there are no customs, the personal circumstances, shall decide to allocate or sell these items to one of the heirs, with or without deduction from his/her share." It says. If you claim that there is an item here that has a special memory value for the family, you can say as an heir and in accordance with Article 653/2 that this item (photograph, video, correspondence, etc.) that has a special memory value for the family should be allocated/sold to me. This is another possibility.

What are the elements that a data must have in order to be a work under the FSEK? It must bear the characteristics of its owner, that is, for example, the fact that someone else cannot take that photograph in the same way, that it must be original. For example, it is easier to ensure this specificity in video.

You went on a trip, you took a selfie, can it be requested under Article 653/2? Yes. Article 599 talks about property rights that have a material value, whereas Article 653/2 talks about goods that do not have a material value, objectively there is no monetary equivalent in the market, it does not fall within the scope of 599, but if it is a very important memory for me, I can ask the court for it under 653/2. If it is a work, there may be inheritance under fsek. The question is, we do not know which of these are on icloud, who will classify them?

Are there crypto wallets, artifacts, memorabilia, who will classify them? For example, the deceased had a child with another woman, whom he biologically fathered, for example, he has many photographs and correspondence with this woman and the child, for example, he did not share them during his lifetime, how right would it be for his common-law wife and children born in the family to learn about them after his death?

It is also dangerous to give the classification to the heirs. The legislator has not regulated this, could the court appoint a trustee for this classification? There is a risk that the trustee could steal the cryptos in the cold wallet, for example.

If the data is stored somewhere, you can actually apply to the court, for example, the court of first instance rejected it, but Antalya 6th Bam accepted it, it may be stored on icloud, cryptocurrencies may be stored in a central custody institution. So what if there is no data stored in such a central storage institution, what if this data is stored in the cold wallet of the person? Even if you prepare the infrastructure for this legally, if the password is not shared, there is nothing the court can do, it cannot be obtained. In any case, if the man did not share the password, you will not even be aware of such an asset value, it will not even enter the inheritance.

If the person did not share it in his/her lifetime, wouldn't it be disrespectful to the post-mortem personality of the deceased for the court to share this personal data with the heirs? These are all problems, maybe artificial intelligence can be developed in the future to make a classification regarding this.

It is very problematic for the court to share with the heirs the data that the heir did not share during his/her lifetime, and for the heirs to have access to all of this data after his/her death. When there is a conflict between the interest of not sharing the deceased person's data and the heirs' interest in revealing the deceased person's post mortem personality in order to obtain - often monetary - benefits from the deceased person's data, we believe that legally, the interest of the deceased person should actually prevail. However, if a method can be found to protect the personality of the deceased, this method can be applied and the heirs can regain their inheritance rights, but such a method does not exist at the moment.

In a case in Germany, the family wrote to Facebook to find out the reason for their daughter's suicide, but Facebook refused to give them her password. The German Federal Court found in favor of Facebook, and a similar decision was made in Switzerland, where the court said that making a documentary about her would be disrespectful to her memory and would harm the people around her. These are all correct practices in our opinion. When the password is shared, there may be some things that the deceased person hid and these may cause fights between the heirs.