ELI President, Pascal Pichonnaz (Professor, University of Fribourg) opened the webinar by welcoming speakers and attendees. He explained that in September 2023, the ELI Council adopted the above project, which aims at model law/rules on the definition of digital remains, access and inheritability, and data protection issues. The project will help define and distinguish different types of assets, remains and personal data, consider their inheritability and transmission, as well as examine existing rules on applicable law, jurisdiction, data protection and other relevant areas of law, with a view to ascertaining their suitability for this field, failing which proposals may be put forward.
Project Co-Reporters Antoine Eigenmann (Attorney-at-law; Professor, University of Fribourg) and Edina Harbinja (Reader, Aston Law School) presented the project and its aim in more detail. They emphasised that the starting point will be to synchronise the definition of digital remains, as it covers not only traditional assets, but also very personal remains of individuals. They then went on to discuss several practical examples to illustrate the potential problems in the field, and the various legal disciplines that will need to be taken into consideration when implementing the project, such as intellectual property law, contract law, data protection law, inheritance law etc.
Sergio Cámara Lapuente (Professor, University of Rioja), who is a member of the project’s Advisory Committee, provided his initial feedback on the project. Among his many suggestions, he stressed that the focus of the project should be on inheritance law. With regard to the taxonomy of the project, he advised that the team should refer to the ELI Principles on the Use of Digital Assets as Security, but that it should perhaps narrow down the concept of digital asset with the notion of exclusivity of control, excludability, or even the rivalrous nature of the asset. He also discussed who should have access to items after the death of a person and opined that only heirs designated by will or those designated by law should have access to a deceased’s accounts. With regard to the non-negotiated standard terms that one agrees to when opening various accounts, he was of the view that they should not take precedence over mandatory rules of inheritance law.
Leigh Sagar (Barrister of England and Wales) praised the ELI project. In his view, the idea of person representatives and those with powers of attorney in the event of incapacity not being able to access the content of clouds services accounts, seems to be unjust and unreasonably. Sagar explained how English law approached these problems, ie from the property law point of view. The most difficult issue in this area is the definition of the digital assets – in England, an asset gives property rights and interests, but this is not necessarily the case for digital assets. He discussed the test developed recently by the Law Commission to distinguish between information and property, according to which the digital item must exist independently of persons and of the legal system, and must be rivalrous. Among others, eg crypto assets comply with those conditions, so they can be considered to be things and give property rights and interests.
Xandra Kramer (MCC Chair; Professor, Erasmus School of Law) congratulated the Reporters for developing the project. She referred to the project as being well-timed, given that legislators and practitioners across the globe are grappling with these problems currently. In her view, the project could counterbalance the power that now lies with mostly private service providers that govern data. Regulatory framework will could equip individuals with control of their data. Kramer closed by inviting ELI members, both individuals and institutional to join the project’s MCC. Interested Members should contact the ELI Secretariat (secretariat@europeanlawinstitute.eu).
The presentations were followed by a lively Q&A session.
The recording of the webinar is available below.
