Herança digital em face do direito à privacidade do de cujus.

Abstract

This monograph paper focuses on the transmission of digital inheritance in relation to the personality rights, especially the privacy of the de cujus, and aims to identify the limits and scope of the right of heirs over the digital assets left by the de cujus, considering his personality rights. In these terms, the question is: what are the limits and the reach of the heirs' right over the digital assets, considering the de cujus's right to privacy? The deductive approach is used, since, based on the analysis of the personality rights and the fundamental rights of the de cujus, even after death, as well as on the understanding of the transmission of inheritance, especially digital inheritance, through legislation, doctrine, and jurisprudence, we intend to verify the limits and the reach of the heirs' right over the digital assets. As a method of procedure, the monographic work will use the descriptive method. The study of this topic is of fundamental importance, since the limits and the reach of the heirs' right to digital inheritance should be defined by a specific legislation, which does not contain only simplistic rules, but a proper and extensive regulation to all the peculiar characteristics of digital assets. As this is not yet the case, the best approach is to preserve, as a rule, the right to privacy of the de cujus and third parties. This means that existential digital assets and existential-property digital assets, as a rule, should not be part of the inheritance collection. The only digital assets that may be transferred, therefore, are the digital property assets, which, in view of the existing legislative gap, must be governed by the succession part of the Civil Code (Law n.º 10.406/2002), by the Consumer Protection Code (Law n.º 8.078/1990) and by the Copyright Law (Law n.º 9.610/1998), if applicable.