A young chef dies in a car crash, and his parents want only his recipes back. A teenage girl falls under a train, and her parents want to know why. Both families had to take a tech giant to court. In Europe, what happens to your digital life after death depends on which country you happen to live in.

The young man from Milan was a chef. When he died in a car crash in 2020, his phone was destroyed with him. Everything that mattered to his parents sat in his iCloud account: photos, videos, and the recipes he had collected over the years. They wanted to turn them into a project in his memory. Apple refused to hand them over without a stack of legal paperwork. In February 2021, a Milan court ordered the company to help the family recover the data. The judge found that the parents’ wish to keep their son’s memory alive was a family interest protected by Italian rules on the data of the dead.

In Berlin, another family wanted something harder to find than recipes. Their 15-year-old daughter had fallen from a platform in front of an underground train, and nobody knew why. Her parents hoped her chats would tell them whether it was an accident. Facebook turned the account into a memorial page and locked them out, citing the privacy of her friends. The case went all the way to Germany’s Federal Court of Justice. In July 2018, the judges ruled that a social media account can be inherited just like letters or diaries. Europe’s famously strict data protection rules played no part, because they stop at the grave.

No rules for the dead

Even that victory came with a twist. Facebook handed the parents a USB stick with a 14,000-page PDF file. The family insisted on access to the account itself, and in 2019 a Berlin court fined the company €10,000, according to their lawyer. Their fight shows how badly the law fits the digital age. Grieving relatives can inherit a house without a lawsuit. A phone is a different matter.

The reason is written into the law itself. The General Data Protection Regulation (GDPR), famous for guarding every scrap of personal information, states plainly that it “does not apply to the personal data of deceased persons”. It leaves the question to national governments, and each has answered it differently.

France lets people write instructions for their data after death, either general ones deposited with a notary or specific ones for a single website. Spain introduced a similar “digital will” in 2018. In Italy, relatives can exercise a dead person’s data rights unless he or she forbade it in writing. Germany relies on its judges and the analogy with letters. A family in Paris, Milan, or Berlin can therefore face the same loss and end up with very different results.

Brussels has largely stayed out of it. The EU does have common rules for cross-border estates, of which the Commission once estimated some 450,000 open every year. Since 2015, the Succession Regulation has decided which country’s inheritance law applies, usually that of the place where the person lived. But it simply points to national law, and national laws disagree on what happens to digital remains. No EU law yet tells platforms what to do when a user dies.

The problem will only grow. Researchers at the Oxford Internet Institute calculated in 2019 that Facebook alone could hold at least 1.4bn profiles of dead users by the end of the century. Around 2070, the dead could outnumber the living on the platform. “These statistics give rise to new and difficult questions around who has the right to all this data,” said Carl Öhman, the study’s lead author.

A blueprint for Europe

This summer, European lawyers tried to fill the gap. In July, the European Law Institute (ELI), an independent body of judges, academics, and practitioners, approved the world’s first comprehensive model rules for digital remains. They split a person’s online life in two. Anything with economic value, such as a crypto wallet, a domain name, or a YouTube channel earning money, passes to the heirs like a savings account. Emails, chats, and family photos in the cloud are treated as personal and are never owned by anyone else.

Instead, the heirs get a right of access for 10 years, free of charge. Platforms must keep the data for at least five years. The dead person’s own wishes come first, including an order to delete everything or to keep a particular relative out. Terms of service that block a transfer to heirs would be invalid. The rules are not law, but the ELI wants them to serve as a blueprint for national parliaments and to “inform future European policy initiatives”.

There is a catch for families like the one in Berlin. The model rules deliberately reject the German approach that gave the parents their daughter’s full chat history. “When we die, we don’t just leave behind physical ‘real world’ property anymore,” said Edina Harbinja, a law professor at the University of Birmingham who co-led the project. “Without a clear legal framework, there is no way for people – not just celebrities – to meaningfully navigate the law,” she added.

Ghosts in the machine

The next question is already here. Start-ups now offer to turn a dead person’s messages, voice, and photos into an AI chatbot that talks like them. Researchers at the University of Cambridge warned in 2024 that such “deadbots” could haunt grieving relatives with unwanted messages or even be used for advertising.

This area of AI is an ethical minefield.
— Katarzyna Nowaczyk-Basińska, University of Cambridge

“This area of AI is an ethical minefield,” said Katarzyna Nowaczyk-Basińska, one of the study’s authors. Her co-author Tomasz Hollanek added that “these services run the risk of causing huge distress to people”. Since August, the EU’s AI Act has required chatbots to tell people they are talking to a machine, and deepfakes must be labelled. Yet it says nothing about who may create a dead person’s digital double in the first place. Under the ELI model rules, a deadbot cannot be inherited. Relatives could only keep it or switch it off.

Until legislators act, the safest step is a few minutes on your own phone. Apple, Google, and Meta all let users name a person who can access or manage their accounts after death. Under the ELI rules, the most recent instruction would win, including one set up in these tools. It may be the most practical thing anyone does this All Saints’ Day.