Digital legacy in Italy. First Court rule against Apple

Comments and 6 suggestions

On 9 February at the Court of Milan, the Judge ruled that Apple must give parents access to the account of their son who died in a car accident. The reason given by the parents for their appeal is to alleviate their pain by recovering the last photographs, and to use the recipes created by the child — a young chef — “to honor his memory through community projects”.

The question was: is Apple right to deny any access to the account, as per the contract signed by the boy, and in the absence of specific wishes left in this regard, or are the bereaved parents right?

Since 2018 in Italy a specific law exists which establishes that our wills concerning our digital assets exist and hold beyond our death, hence we have the possibility to decide what can be seen / shared / or should be deleted forever. This law was set as specific enforcement of the EU GDPR.

The law also indicates that the heirs can have access and can manage the deceased’s digital assets unless otherwise intended by the same and however only for well-motivated reasons. The judge in Milano ruled that this was the case. Apple was ordered to hand over access to the account.

In our view it is positive and noticeable that once again a European judge defies the BIG ICT contracts set in USA with not much consideration for foreign jurisdictions. However, in our opinion the decision of the Milano judge deserves some criticism, because parents will see the whole digital intimacy of their son… things that perhaps their son did not want them to see. What if the son had not shared his recipes or his photographs precisely because he did NOT want those to be used? We will never know.

The only solution is to think about it first, to clearly pre-define our wishes regarding:

• What we want to be deleted (oblivion): my accesses to online games, for example, or even my personal and secret diaries in which I unleash suffering injustices.
• What we want to be delivered to friends and colleagues (cultural heritage). We think about our work or volunteer experiences, about the lessons to share with the youngest.
• What we want to be given to the heirs, for example to make it easier for them to take possession of what will be theirs: the documents at the aunt, the copy of the novel we have just finished writing, the password for certain online accounts.

Finally, a few suggestions might be helpful. What TO DO:

• Live using digital in moderation, only as necessary. Close unnecessary subscriptions and annoying newsletters, so to reduce your environmental impact and the time wasted
• Make sure your heirs know what digital assets you have.
• Write wills concerning your digital goods. Do you want them to be kept or deleted, in whole or in part? Follow the recommendations of services such our - www.eLegacy.app , soon in English - that the Corriere della Sera newspaper recommend as the most advanced solution in this field. It does NOT require you to fill forms, it is updated automatically, and it does not require you to include your passwords either.

What NOT TO DO:

• NEVER write passwords somewhere, on paper or digitally, never share them with wife or husband (sons, friends, if needed, are a much better idea)
• Do NOT use the same passwords for many different accounts and change them frequently
• Do not use work devices for personal matters: those are not yours, you could lose a lot without being able to have it back