![]() 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. |