of these "domestic overriding mandatory
norms"
applied to the case. The BGH dismissed
the idea that the deceased's post-mortem
constitutional right to preservation of her
personal dignity prevented Facebook
from disclosing the contents of her
account to her parents, much as diaries
and letters, unless stipulated otherwise
by the deceased, are not prevented by
the German constitution from becoming
a part of the estate. And it held that
the German Telecommunications Law,
provider is prohibited from disclosing
content to "third parties," did not prevent
access from being given to the parents
of the deceased (as the court of appeal
had held). As heirs, they were not "third
parties" within the statutory definition.
principles
that the parties can choose the applicable
law. This explains why the California
court not only heard the Manchester case,
but applied California law.
The German market, however, had
already become an exception in the
Facebook world. Its "terms of use," as
they were called in the German language
version, made an exception to the choice
of California law by explicitly replacing
it with the provision: "This Statement is
subject to German law." In other words,
Facebook had "unilaterally" submitted
to German law, and the courts readily
dicta that German law would have
applied regardless, pursuant to the EU
conflicts rule,
for a purpose which can be regarded as
being outside his trade or profession (the
consumer) with another person acting in
the exercise of his trade or profession (the
professional) shall be governed by the
law of the country where the consumer
has his habitual residence, provided that
the professional ... by any means, directs
such activities to that country ... and the
contract falls within the scope of such
activities."
A second lesson learned: all
providers who, by whatever means,
are commercially targeting consumers
habitually residing in Germany know that
German law will apply regardless of what
their terms of service may provide.
whether the account had become a
part of the estate. Although the general
heritability of contracts can be restricted
or excluded by the parties under German
law, the court held that this had not been
the case. Facebook's provisions on the
"memorialization" of an account were not
found in the body of the "Statement," but
rather obscured in the "Help" section. But
even so, any of a provider's general terms
and conditions, which materially restrict
its services are subject to the scrutiny
of the German courts.
found to be such a material, and, thus,
invalid post-contractual restriction of
Facebook's services. Although the BGH
brought forth by the defendant, at the
core of its reasoning lies the fierce
determination of the German courts to
defend the German consumer.
A third lesson learned: all providers
targeting consumers in the German
market know that their general terms
and conditions will be subject to intense
scrutiny by the German courts.
Adjudicating this case as a matter
of contracts law (and not as one of
heritability of digital assets) provided
the BGH with the tools it needed to
get the result it wanted, which was to
override the memorialization of Facebook
accounts.
2 In re Request for Order Requiring Facebook, Inc. to
9 Articles 3 subsection 1 and 6 subsection 2 of the Rome
11 Pursuant to Section 307 of the German Civil Code.