Put: Vitor Antony Ferrari, Ivan Kubala
With the expansion of social networks and the growth of users that increases every day[1], people saw this means of communication as a way not only to connect and share experiences, content and the most diverse manifestations, but also to undertake.
In this context, digital influencers emerged, who, through their accounts on the most varied social networks, produce and disseminate content that attracts thousands of followers (other users), which boosts their businesses or companies that bet on promoting their brands in this segment.
It is clear, therefore, that the digital influencer market has grown exponentially, significantly boosting the national economy and becoming a true source of income and circulation of wealth.
But what happens to these accounts or profiles if their owner dies? Is it possible to include them in the inheritance so that they can be passed on through inheritance?
Digital inheritance is still a rather nebulous topic, and it is true that the Judiciary still has some resistance to accepting it within inheritance law, especially given the lack of specific rules on the issue and the breadth of its concept.
In fact, the issue is comprehensive and sometimes involves multidisciplinary matters, as it often attracts rules from specific legislation such as the Copyright Law and the Internet Civil Framework.
It is undisputed that the accounts or profiles of these influencers have economic value and, therefore, are considered – or should be – true assets that deserve legal protection within inheritance law. However, the issue continues to encounter resistance from the Judiciary, as for example in a recent ruling[2] in which the Court of Justice of São Paulo highlighted that the use of a deceased user's Profile consisted of a very personal right, which is not transmitted by inheritance, and that the subject lacks specific regulation, since neither “Law 12,965/2014 (Internet Civil Rights Framework) nor the new General Data Production Law expressly addressed the issue”.
Therefore, until the issue is regulated, it is up to the legal operator to analyze the specific case in order to direct it in accordance with the rules available in the legislation in force. However, given the significant economic value that can be attributed to various digital assets, such as the accounts/profiles of increasingly popular digital influencers, they cannot simply be disregarded and excluded from the hereditary heritage, and it is advisable to take the matter to be resolved by the Judiciary, which, in turn, must urgently take a position on the matter given the proportion it has gained in recent years.
[1] https://exame.com/tecnologia/a-cada-segundo-14-pessoas-comecam-a-usar-uma-rede-social-pela-1a-vez/
https://terracoeconomico.com.br/a-economia-dos-influenciadores-digitais/
[2] TJSP; Civil Appeal 1119688-66.2019.8.26.0100; Rapporteur: Francisco Casconi; Judging Body: 31st Private Law Chamber; Central Civil Forum – 12th Civil Court; Judgment Date: 03/09/2021; Registration Date: 03/11/2021