the account. The mother claimed access to the account, in particular to the communication in order to find out whether her daughter had suicidal thoughts. Furthermore
she aimed to avert the metro drivers’ claims for damages.
The BGH decided in favour of the mother when it held that the user account
contract is transferred to the heirs by universal succession. The court created clarity
in favour of the validity of inheritance law and ensured a balance between analogue
and digital inheritance as social networks accounts are transferred to the heirs in the
same way as letters or diaries. The Court found that data protection law does not
prevent the access by the heirs. Since the regulation only protects persons alive, the
interests of the testatrix are not affected. The processing of the data of the communication partners is justified by law. Firstly it is necessary in order to fulfil the
contractual obligations towards the contractual partners on the basis of art. 6 para.
1 lit. b) GDPR. Secondly, the processing is justified on the basis of the legitimate
overriding interests of the heirs, art. 6 para. 1 lit. f) GDPR.
2.4 Data Protection and Digital Forensics
2.4.1 Investigation, Detection and Prosecution of Crimes Through
Electronic Means
Data processing by prosecution authorities is regulated by a new directive
concerning the processing of personal data for the purposes of prevention, investigation, detection or prosecution of criminal offences.
66
National law distinguishes between crime prevention and prosecution of crime.
Preventive measures are taken by the police and are thus subject to police law,
mainly state police law (of the Bundesländer),
67 while the prosecution authorities are
competent to take repressive measures according to the Code of Criminal Procedure
(“StPO”). For illustration purposes is the following information based on Bavarian
state police legislation, the PAG.
68 It addresses data processing by electronic means
specifically.
69 So does the StPO.
70 Investigations through electronic and
non-electronic means by an employer are subject to sec. 26 para. 1 s. 2 new BDSG.
71
66 Directive 2016/680.
67 A Federal Police does exist but has only very limited competences mainly concentrated on border
control, train stations and airports. The police law of the regional states (Bundesländer) set the legal
standards.
68 Gesetz über die Aufgaben und Befugnisse der Bayrischen Staatlichen Polizei
(Polizeiaufgabengesetz).
69 The PAG contains e.g. rules for the implementation of technical means in apartments and the
secret access to information technology systems, Art. 34a and 34d PAG.
70 Sec. 100a, 100b, 100g, 100h, 100j StPO.
71 See Sects. 2.1.5 and 2.1.6.
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199
she aimed to avert the metro drivers’ claims for damages.
The BGH decided in favour of the mother when it held that the user account
contract is transferred to the heirs by universal succession. The court created clarity
in favour of the validity of inheritance law and ensured a balance between analogue
and digital inheritance as social networks accounts are transferred to the heirs in the
same way as letters or diaries. The Court found that data protection law does not
prevent the access by the heirs. Since the regulation only protects persons alive, the
interests of the testatrix are not affected. The processing of the data of the communication partners is justified by law. Firstly it is necessary in order to fulfil the
contractual obligations towards the contractual partners on the basis of art. 6 para.
1 lit. b) GDPR. Secondly, the processing is justified on the basis of the legitimate
overriding interests of the heirs, art. 6 para. 1 lit. f) GDPR.
2.4 Data Protection and Digital Forensics
2.4.1 Investigation, Detection and Prosecution of Crimes Through
Electronic Means
Data processing by prosecution authorities is regulated by a new directive
concerning the processing of personal data for the purposes of prevention, investigation, detection or prosecution of criminal offences.
66
National law distinguishes between crime prevention and prosecution of crime.
Preventive measures are taken by the police and are thus subject to police law,
mainly state police law (of the Bundesländer),
67 while the prosecution authorities are
competent to take repressive measures according to the Code of Criminal Procedure
(“StPO”). For illustration purposes is the following information based on Bavarian
state police legislation, the PAG.
68 It addresses data processing by electronic means
specifically.
69 So does the StPO.
70 Investigations through electronic and
non-electronic means by an employer are subject to sec. 26 para. 1 s. 2 new BDSG.
71
66 Directive 2016/680.
67 A Federal Police does exist but has only very limited competences mainly concentrated on border
control, train stations and airports. The police law of the regional states (Bundesländer) set the legal
standards.
68 Gesetz über die Aufgaben und Befugnisse der Bayrischen Staatlichen Polizei
(Polizeiaufgabengesetz).
69 The PAG contains e.g. rules for the implementation of technical means in apartments and the
secret access to information technology systems, Art. 34a and 34d PAG.
70 Sec. 100a, 100b, 100g, 100h, 100j StPO.
71 See Sects. 2.1.5 and 2.1.6.
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199