As a result of the dazzling progress of Information Technologies worldwide especially within the last 10 years, the Internet has turned into an indispensable tool used in every field and by the general population. While the Internet has changed reading-research, communication and media usage habits almost radically, digital usage has increased significantly in economic activities such as banking transactions as well. Consequently, digital projection of most people’s personal and economic activities in the physical world has now been formed.

In the face of these developments, besides the physical heritage that people leave behind when they pass away by completing their mortal lives, their “Digital Heritage” has also come into question. 

Digital Assets and “Digital Legacy“ Term in the World

Videos, photos, blog pages, e-mails, social media accounts etc. all kinds of electronic data in the online environment can be included in the definition of “Digital Asset”. The issue of what will happen to these after the death of the person, namely the “Digital Legacy” is lately the subject of many discussions, opinions and articles. Since this is a new concept, there is no international regulation on the subject yet and the countries’ practices differ from each other.

It is stated in the “General Conditions” imposed by Google, Yahoo, Facebook, Twitter etc. for us to open accounts on their websites that these accounts cannot be transferred and cannot pass to the heirs. However there were lawsuits, especially in cases where the passwords are not left to the heirs by the inheritor, filed against Yahoo and Facebook in the USA and Germany regarding the fate of social media accounts after death and the relevant courts ruled that the heirs should have the right to access the deceased’s accounts.

Lately it has been enabled via Apple iOS 15.2 update to create “Legacy Contact” on iPhones and iPads. With this feature, iPhone and iPad users will be able to allow the people they choose to access their Apple ID accounts and personal information stored on the iPhone/iPad, after their death. Apple will request a copy of the access key and death certificate from Legacy Contact, who wishes to access the account after death.

This feature, which is currently on Beta version, is expected to come into effect for all users by the end of 2021.

Current Situation under Turkish Law

In terms of Turkish Law; we can say in general that the Law on Intellectual and Artistic Works and the Law on the Protection of Personal Data can be applied to the subject, within the framework of the provisions regarding Inheritance Law placed in our Civil Code.

In accordance with our Inheritance Law, the heirs become the “complete successor” over the heritage of the legator, that is all his/her assets. In other words, the assets of the deceased pass to the heirs as a whole. At this point; it is required to examine the question of whether the digital data will be included in the estate, according to the content of the digital asset of the legator.

In terms of Intellectual Rights; since, for example, a literary work that was written on a blog or a professional research published on an academic website is the product of an individual’s personal effort on the internet, it shall constitute the subject of intellectual property, therefore it should be accepted to be inherited.

When we examine the subject in terms of our Personal Data Protection Legislation; for an information to be considered “personal data”, it does not matter where it is located, so some information stored on digital environment can also be considered personal data. However, data regarding deceased persons cannot be considered as personal data as the “personality” ends upon death according to our Civil Code. 

Social media accounts that are used for income-generating purposes, namely for commercial purposes such as Youtubers, Instagram boutiques, social media influencers should be inherited, since it is already possible in our law to conduct commercial activities online and to pass such activities on to heirs after the death of the business owner. However, the aftermath of normal social media pages such as Facebook, Instagram memberships and e-mail accounts is controversial. The generally accepted opinion in the current situation is that these accounts cannot be made available to the heirs, however “account access” should be considered as a separate issue and the heirs should be allowed to access social media accounts after death. 

Digital Future Challenges Traditional Concepts

People spend most of their work and social lives online now. Many commercial transactions and even social activities are carried out over the Internet. Since the law is a living organism that needs to keep up with developments like all the powers of state, it is inevitable to face with problems in the legal systems which cannot adapt to the digital changes at the same pace. Therefore, we expect a legal regulation on this subject in our country as well.