Legal Daily Report: How to Inherit Digital Assets (I)

With the rapid development of Internet technology, people are entering a digital survival era. More and more Internet services are bound with more personal and property-oriented information content such as personal identification information and fund accounts. Can these huge digital assets be inherited according to existing laws and regulations? If you can inherit, what principles and procedures should you follow when inheriting? How do all parties in society respond? This issue of "Sound Edition" invites relevant experts, judges, lawyers, industry and users to discuss together, so stay tuned.

Triple door of network virtual property inheritance

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At the end of the 20th century, when Negroponte, the author of Digital Survival, visited an American IC manufacturer and registered at the front desk, the receptionist asked him about the value of the stored laptop for professional procedures. He replied: "About $1 million to $2 million!" The receptionist was unbelievable and then valued his old computer for $2,000. Negroponte sighed: "The key to the problem is that the atom does not cost so much money, and the bit is almost invaluable." Just as the title of "Digital Survival" reveals, this is a life of ours, The environment of work and surroundings has been digitized. If the most important property of the agricultural society is land, and the most important property of the industrial society is intellectual property, then the most important property of the digital society is undoubtedly the "digital assets" or the general provisions of our National Law. The term is called "network virtual property."

Everyone cherishes property. As long as they bring unique convenience, satisfaction and even happiness to people, people do not account for whether these properties are tangible or intangible, realistic or virtual. For this reason, from the game equipment disputes, to the QQ number inheritance, and then to the Taobao online store segmentation, the network virtual property disputes are increasing. In China's "Civil Code Inheritance", we may wish to take the opportunity to think about the new human beings in the digital age: Can the virtual property of the network inherit and inherit?

First door: property law

Our country’s inheritance law stipulates that all legal property left behind by the death of the heir may be inherited. However, is the network virtual property listed? To answer this question, you must understand what is a virtual property of the network.

But unfortunately, people have not yet reached an agreement on the connotation and extension of the network virtual property. Here, we may wish to seek a minimum consensus based on its basic semantics. First, the network virtual property must be "data", which means it is a combination of 0 and 1 bytes formed by information technology. Second, it must be "networked", it is born in the network, exists in the network, and more importantly, its value is inseparable from the network. Therefore, those assets that are born in the offline space and mapped to the network, such as electronic money, are not virtual property of the network; those assets that are born on the network but can be separated from the network without damaging their value, such as e-books, videos, Audio is not the same. Finally, the network virtual property must have exchange value, or it is scarce. In this regard, only the value of the social account is not property, unless it has a scarce special endowment, such as a 6-digit QQ account, or a Weibo account with tens of thousands of fans. From the external form, the network virtual property can be roughly divided into "online account" and "virtual asset". The former is the entrance of people entering the network space, and the latter is the various information entities stored on the network server behind the entrance. If you use an email to analogy, the email address is an online account, and the email is a virtual asset. In analogy with bitcoin, e-wallet is an online account, and bitcoin is a virtual asset.

In our civil law, we have a broad understanding of property, and the virtual property of the network that satisfies the above connotation and extension naturally belongs to the category of property, and can easily enter the second door.

The second door: contract law

As an outsider in the virtual world, we can only enter the network in the name of “users”. Therefore, the key part of the individual's transition to users is to sign the user agreement established by the network service provider. It is conceivable that in a virtual world that lacks formal national laws, user agreements are often seen as the primary legal basis for virtual property inheritance. For this reason, in the 2011 QQ number inheritance dispute (in 2011, Ms. Wang’s lover, Mr. Xu, was killed in a car accident. Mr. Xu’s QQ mailbox contains a large number of letters and photos about the two people from love to marriage. Ms. Wang wants to organize these letters and photos for commemoration; at the same time, she also wants to keep this QQ number), Tencent quotes the Tencent Service Agreement (including the attachment "QQ Number Rules"), according to the "QQ number ownership" Belong to Tencent, the right to use the QQ number belongs only to the initial application registrant. Without the permission of Tencent, the initial application registrant may not give, borrow, rent, transfer or sell the QQ number or otherwise permit the non-initial application registrant to use the QQ number. It is agreed that the QQ number of Mr. Xu, the deceased, can only be used by himself. Any other person including the successor, Ms. Wang, has no right to claim.

Tencent is by no means an exception. As long as the user agreement of major Internet companies at home and abroad is slightly sorted out, it is not difficult to find that although they do not directly involve virtual property inheritance, both the email website and the online game website claim to enjoy virtual property ownership and prohibit user transfer. Virtual property and the way in which the user's true identity is bound to the service indirectly limits the inheritance rights of the virtual property. Since the user agreement is actually a "click-wrap contract", it is a kind of format contract in China's contract law and consumer rights protection law. For the dispute arising from the user agreement, it must be reviewed one by one: (1) influence Is the term of virtual property inheritance subscribed to the user agreement? (2) Does the clause affecting the inheritance of virtual property have room for interpretation? (3) Is the clause affecting the inheritance of virtual property invalid due to legal reasons?

Only through strict contract interpretation, those provisions that exclude the inheritance of virtual property of the network can be finally determined to be valid. If there is any embarrassment, the individual may get rid of the shackles of the user agreement and enter the last door of the virtual property of the network: privacy.

The third door: privacy law

After removing the obstacles in inheritance law and contract law, privacy has become the last link in the inheritance of virtual property. This problem originated from the world's first virtual property inheritance case "John Ellsworth v. Yahoo". On November 13, 2004, 20-year-old American soldier Justin Ellsworth was killed in Anbar, Iraq. In the previous two years, Justin mainly contacted his friends and family through Yahoo Mail. After Justin's sacrifice, his father, John Ellsworth, asked Yahoo for an email account, because as a heir, he had the right to collect Justin's "last words" – Justin sent to his family or others and the emails he might receive. However, Yahoo claims that it is subject to the user agreement, which should protect the privacy of the user and must not transfer the mailbox to any third party. In the end, the judge made a Solomon decision, ordering Yahoo to not provide a mailbox login and password for privacy policy, but should make a CD containing all the mail in the mailbox and deliver it to John Ellsworth. Accordingly, Yahoo! defended its commitment to "see the user's mailbox as private and confidential information" and also followed the US Electronic Communications Privacy Act and the Storage Communications Protection Act regarding "prohibiting unauthorized access to storage communications." The provisions of the information.

However, is this reasonable maintenance of user privacy right? Let us look at another real story. In 1968, Grant Wilson was sent to Vietnam to participate in the US military's mortar group. In the following three years, he wrote a total of 35 letters to his sister Sue, detailing his fighting and life details. These letters, which are linked to the brothers' emotions, are preserved by Sue and passed on to her descendants. Justin and Grant, the same war letter, different carrier forms and different inheritance results, what are the reasons?

In fact, this concern about the privacy of online virtual property actually ignores a basic fact: the legal personality ceases to exist after death, and the deceased has no right to privacy. In the story of the Grant letter, although the Vietnam War letter has attached privacy to the specific process of recording a specific period, it does not confuse their inheritance, because with the death of Sue, she no longer It is possible to control privacy and not claim compensation for other people’s infringement. Moreover, privacy rights are inseparable from the subject, have personal specificity, and cannot be obtained or authorized by others to exercise. The inheritance of the Grant letter does not harm the privacy of the heir. Different from traditional assets such as Grant letters, the paradox of virtual property is that heirs often do not know the relevant account number and password, and their inheritance of virtual property must rely on the assistance of network service providers, and network service providers are obeying Privacy protocols and regulations prohibiting the disclosure of information to unauthorized persons have to reject the requirements of the heirs.

To solve this problem, we can first emulate the French "Digital Republic Act", authorize users to decide on their own network virtual property after their death. If the user has deleted the virtual assets by himself, he should presume the online. Accounts cannot be inherited. Second, in the case where the user has not left any decision, the virtual property of the network should be inherited by the heir to whom the deceased has a specific connection. Because they not only have the motivation to maintain the privacy of the deceased because of emotional or blood relationship, but also the ability to maintain the privacy of the deceased because of the familiarity with the deceased and the emphasis on the spiritual value of the virtual property. However, this does not mean that the network service provider removes all duties. The unique existence and operation mode of the network virtual property determines that it not only has negative non-infringement of privacy obligations, but also has the responsibility of transferring network virtual property and ensuring network security. Wait for positive assistance obligations.

Since the Internet entered China in 1995, the oldest inhabitants of the online world have lived through the years. As a civil code for the future, the "inheritance editor" urgently needs to make a forward-looking design for this huge and rich heritage. It is said that "it is better not to rain and to dig into the well." (The author is the Executive Director of the Center for Digital Economy and Legal Innovation at the University of International Business and Economics)

There is still no clear legal basis for the trial of the case.

Liu Xuelin

At present, I have not heard about the case of virtual property inheritance. Colleagues encounter such cases, and mainly guide the parties to negotiate settlement. Network virtual property is a form of non-materialized property that develops with the development of the Internet. In 2017, the General Principles of Civil Law were passed, of which Article 127 stipulates that: Where the law provides for the protection of data and network virtual property, it shall be in accordance with its provisions. The increase in this clause reflects the concept of “prudently amending legislation with the times”.

However, this provision is more general and it is difficult to guide specific judicial practices. First, there is no clear legal norm to define network virtual property, which leads to the existence of obstacles in the judicial trial whether a certain network information belongs to virtual property. At the same time, there are differences in understanding about what content is included in the virtual property of the network. Therefore, it is necessary to clarify the scope of network virtual property by enumeration within the scope permitted by legislation. Second, the rights of the network virtual property are unclear and cannot provide normative legal guidance for practical operations. Third, although the general provisions of the Civil Law have determined that civil subjects have rights to virtual property on the Internet, the content of rights protection is not clearly defined. In addition, since the protection of the rights of most virtual property involves a third-party network platform, whether the court should consider the actual situation and opinions of the third party when trying such cases, there is no specific legal provision to clarify the rights and obligations of the parties. Fourth, the network virtual property belongs to the non-materialized property form, which is mainly represented by the data and information in the network environment, and the information exists attached to the website operator, and how the value of the virtual property is determined and how to divide it is also relatively difficult at present. The problem. (The author is a judge of the Civil Trial Chamber of the People's Court of Haidian District, Beijing)

The platform should provide digital heritage inheritance services

Xu Zezhen

At present, many Internet companies stipulate that users only have the right to use the account, but no ownership. If the user can inherit the information if the user is dead, many companies have not made any regulations. I think that the digital information content in the account is indeed the user's own thing. Once the user dies, it is not appropriate for the platform to handle it by itself.

For funds in accounts such as WeChat and Alipay, I think it should be handled in accordance with the inheritance of traditional property; for bitcoin, game equipment such as game equipment, virtual assets should be allowed to inherit from their own disposal; for chat records, private messages For digital information that involves privacy and does not have intellectual property rights, I think we can refer to traditional diaries and letters, because the difference between the two is different in terms of content privacy. In this case, the inheritance rights can be exceeded. For privacy, the heir should obtain information about the relevant account.

However, nowadays, when individual users encounter similar problems and need assistance from Internet companies, they will encounter different levels of obstacles. Therefore, it is necessary to clarify how digital inheritance is inherited in the law, so as to provide legal protection for ordinary users to protect their own rights and interests. It also facilitates the cooperation of Internet companies. (The author is a citizen of Xicheng District, Beijing)

Related Links:

In February 2015, Facebook announced that it would allow users to designate “heritage heirs”: manage their accounts after their death or completely delete their accounts.

In 2013, Google launched a tool that allows users to decide how to handle their personal data stored on Google after their death.

Source of this article: Legal Daily