Recently, a 90 year electric competition player made his will in the variety show, and wrote his Alipay, game account and other virtual property into his will, causing concern.
According to the data of China’s will database, by the end of August 2019, the number of post-90s testators had reached 236. Of the young people who make a will, the youngest is only 18 years old. At the same time, the property inheritance of the will of the 90s will be mainly based on cash deposits and virtual property. Virtual property includes Alipay, virtual currency, game accounts and so on. Most of the heirs of property are parents.
According to the 44th statistical report on the development of China’s Internet, by June 2019, the number of Internet users in China had reached 854 million. Where will a large number of data files such as personal account and email information go after the owner’s death? How to deal with personal digital heritage in the Internet era?
Virtual property written in will
In May this year, Xiao Ling (not her real name), born in 1994, came to the Tianjin registration center of the Chinese testamentary bank and made her own will. “Work pressure is increasing, accidents may happen at any time, and death is really not far away from me.” Xiaoling said she hopes to leave a guarantee for her parents after her death in this way.
Xiaoling is a typical “no wallet family”. Not only is it accustomed to mobile payment, it also deposits most of its cash income in Alipay account. Before making a will, she did not know that Alipay, WeChat, these virtual accounts can also be written into will. In the interpretation of the staff of the Chinese testamentary library, Xiaoling learned that virtual property could also be written into a will, so she wrote WeChat, Alipay account and password into her will.
“In the property inheritance of post-90s testators, there are few real estate, stocks and other properties, mainly cash deposits and virtual properties.” Introduction by Chen Kai, director of the Management Committee of the Chinese testamentary bank. In his opinion, the post-90s emphasized virtual property when they made a will, which reflected their emphasis on spiritual needs and emotional values.
So, what is digital heritage? What can be written into a will?
As early as 2003, UNESCO clearly stated in the Charter for the preservation of digital heritage that digital heritage is the unique knowledge and expression of human beings. It includes culture, education, science, management information and technology, law, medicine and other information in digital form, or information in digital form converted from existing similar models.
It is generally believed that digital heritage can be divided into two categories: material and spiritual. Material digital heritage refers to the direct link with property, such as Alipay balance, bitcoin and other virtual currency; the spiritual is social accounts, personal documents, etc., is a virtual property that users spend a lot of time and energy to form. It is not only a spiritual garden for users’ daily life, but also a spiritual comfort for relatives through inheritance.
Digital heritage is mainly handled by operators
Article 127 of the general principles of the civil law stipulates that “where there are provisions on the protection of data and network virtual property by law, such provisions shall prevail.”
In this regard, Chen Kai believes that the general principles of civil law have made principled provisions for the protection of virtual property. “Where the definition and scope of virtual property have not been fully determined, it may be more appropriate to make principled provisions.”
According to the relevant laws and regulations, the property law, the inheritance law and the relevant instructions only stipulate the physical objects, and the inheritance of the intangible objects that may be involved in the digital heritage cannot be found.
Liu Junhai, director of the Institute of business law of Renmin University of China, pointed out that at present, China has only confirmed that data should be protected by law and has not confirmed its independent civil rights. “China’s current inheritance law only provides for the inheritance of physical property, but not for the inheritance of virtual property on the Internet, which makes the inheritance of digital heritage difficult to achieve in essence and needs to be revised in the future.”
Due to the lack of clear legal provisions, at present, the treatment of digital heritage is basically determined by the Internet platform operators. This is also a hidden danger for disputes.
Some scholars have proposed that due to the multiple attributes such as personal privacy, user property and personality carried by communication and social accounts, the discussion of inheritance behind them needs to be more carefully grasped.
Management and delivery challenges
Chen Kai pointed out to reporters that, at present, there are some problems in writing virtual property into wills, such as the difficulty of ownership confirmation, search and transmission. “Because virtual property is distributed in the servers of various operators, and some virtual properties, such as QQ space, are relatively private.”
It is understood that at present, the platform has two main ways to deal with the user’s Digital Heritage: first, the user only has the right to use the account, and the network service provider has the ownership. At this time, the account cannot be inherited, and the network service provider can choose to close, delete or cancel the user’s account; second, the user has the ownership, and the digital heritage can be inherited. At this time, the number is inherited Heritage needs to provide a series of supporting materials.
In most cases, Internet companies stipulate that the ownership of user accounts is separated from the right to use them. For example, Sina Weibo, Tencent QQ and other user service use agreements stipulate that if the user does not actually use the service after applying for opening for a period of time, the operator has the right to choose to recycle the user’s nickname, account number or stop the service within the scope allowed by laws and regulations.
According to Liu Junhai, there are two main ways to deal with digital heritage: first, the platform should plan the rules of Digital Heritage Inheritance in detail and clarify the process of inheritors’ inheritance of digital heritage. When there are heirs, the platform is obliged to assist the heirs to inherit the digital heritage according to law. When dealing with digital heritage, the platform should fulfill the obligations of notification, disclosure, assistance and confidentiality, which are also the basic legal requirements to be followed when dealing with digital heritage. Second, in terms of legislation, it is suggested that the legislature should take the issue of digital heritage into account when revising relevant laws.