Exclusion of profile on social network after death does not generate moral damage

The 31st Chamber of Private Law of the Court of Justice of São Paulo upheld the sentence of requests for access to data and conviction for moral damages made by a mother regarding the exclusion of her deceased daughter’s profile. The decision understood that the social network acted in a regular exercise of rights in accordance with the terms of use previously informed to its users, in addition to not inheriting the very personal right of credentials to access the social network, since no patrimonial content is absent.

In the specific case, after the daughter’s death, her mother started to directly access the profile on the social network through a username and password created by the daughter, in order to remember facts of her life and interact with friends and family. The controversy arose from the exclusion of the daughter’s profile from the author of the social network after her death.

Two main premises were considered in the vote of the rapporteur, Judge Francisco Casconi: (1) the clauses of the Terms of Service and Community Standards, adhered to by the author’s daughter when joining the social network; and (2) the absence of specific rules on digital inheritance in the national legal system, leading to the application of the normative discipline of personality rights and the autonomy of the will to conflict.

In terms of use of the social network, there was a violation of the author’s conduct, considering the prohibition on sharing access credentials to third parties without the company’s permission and the expression of desire by her daughter, due to the possibility of the user choosing to permanent exclusion from the social network account, or by transforming the profile into a “memorial”, whether or not transmitting its management to third parties, access to the account transformed into a memorial is prohibited.

As for digital inheritance, the specific case was classified as an existential legal situation in the network, in such a way that “the logic of protection based on personality rights prevails, such as privacy and identity, which are personal and non-transferable rights”. It was concluded, therefore, that “the choices about the destination of the account made by individuals on each of the platforms should prevail, when they exist […] not characterizing arbitrary post-mortem exclusion from profiles”.

Therefore, there was no illegality in the conduct of the company that owns the social network that would give rise to liability for indemnifiable moral damage. This is because the exclusion of the profile resulted from “the manifestation of the will expressed in life by the user, when adhering to the Terms of Service […], which expressly provided for the impossibility of unlimited access to the content after death”.

Wilson Sales Belchior