An online social media account is composed of the account itself and the content of the account, which are independently distinct but complementary objects of rights, making the online social account have both personality rights and property rights. The intersection of virtual and reality has led to the ambiguity of the inheritability and inheritance rules of online social media accounts in academia and practice. As far as inheritability is concerned, online virtual property in the narrow sense should be the object of property rights and be inheritable, the prohibition of inheritance clause does not comply with the law in terms of procedure and substance, and the account itself is a certificate of creditor's right with significant identity and cannot be inherited, but the realization of the heir's interest claim will not be blocked. Property rights and interests in the content of the account that meet the requirements of inheritance may be inherited, and the inheritance rules shall be classified according to the standard of a high degree of personality, and constructed in conjunction with typical enumerations. The virtual currency in the virtual property of property rights and interests is the network virtual property in the narrow sense with the most significant economic value, and the electronic currency is the user's monetary claim against the network operator, both of which can be inherited.
introduction
In the Internet era, information network technology has penetrated into all fields of society, and the popularity of electronic devices has made social software an important tool for people's daily travel, communication and payment. According to the 50th Statistical Report on the Development of the Internet in China, as of June 2022, the number of Internet users in mainland China reached 1.051 billion, the Internet penetration rate reached 74.4%, and instant messaging users accounted for 97.7% of the total Internet users. With the age of netizens, inheritance disputes related to online virtual property have emerged one after another. Whether online social media accounts and the content stored in the virtual space can be inherited has become an unavoidable topic in the Internet era, and the current legislation has not responded positively to this issue, and academic discussions and judicial practice have not yet reached a conclusion.
1. Definition of online social media accounts
Before trying to solve the inheritance problem of online social accounts, it is necessary to define the basic concepts. The clarity of the connotation and characteristics of online social accounts can also provide ideas for exploring the root cause of inheritance problems and constructing inheritance rules in the future.
(1) The connotation of online social media accounts
There are many types of online accounts, which can be divided into game accounts, social accounts, email accounts, and so on, depending on their use and nature. The so-called online social account refers to the network account with social networking as the main function, mainly including online social communication accounts, online social media accounts, etc. The term "online social account" in this article mainly refers to the online social communication account, which is based on the Internet platform and the instant messaging is the core of the service, and usually has functions such as payment and games under the trend of intensification and cross-platform, and is closely related to the user's identity information, privacy and other personality rights and interests. The market value of self-media online social media accounts seeking economic benefits by absorbing fan traffic for commercial sales and advertising is more prominent, but it is not the focus of this article.
According to the principle of "channel-content" distinction, an online social account in the narrow sense only refers to a "virtual channel", that is, the account itself composed of digital symbols for logging in to social software, as well as rights and interests that are difficult to separate from the account, such as level, basic account information, achievements, etc. In a broad sense, online social media accounts include "virtual channels" and "virtual content", that is, in addition to the above-mentioned accounts themselves, they also include account content, that is, various information and interests stored in virtual space. Rights and interests in account content that can be separated and have independent rights characteristics shall be handled in accordance with relevant laws and rules. In fact, the account itself and the content of the account are complementary and closely linked, and the substantive value of the online social media account comes from the content information in the virtual space, and its login and storage must be based on the premise of the account itself.
Online social media accounts are covered by the category of online virtual property in a broad sense. The so-called network virtual property in a broad sense refers to the relatively independent and exclusive information resources that simulate real things in the network environment and exist in digital form. Its connotation and extension are expanding with the development of society and technology, including not only the virtual network itself, but also the electromagnetic records that exist on the network and have a certain realistic value, such as account passwords, information materials, reputation, virtual currency, game equipment, etc., which is the cross-integration of personality rights and property rights. Online social media accounts are used by users after registration, have certain economic and spiritual value, and also meet the basic requirements for property, and are recognized by both academic and judicial circles as online virtual property in a broad sense. Unless otherwise specified, the term "online social media account" in this article adopts a broad concept.
(2) The characteristics of online social media accounts
1. The account itself is distinguished from the account content
The account itself is closely related to the content of the account in the online social account, and no matter what it loses, its social value may be hollowed out. But after all, the former represents identity information, that is, the basis for distinguishing different users, while the latter represents content information, that is, the storage of users' social information. The traditional one-and-bind model fails to correctly understand the new phenomenon in the Internet era, which improperly erases the differences between the two, and it is difficult to respond to the problems of how to transfer account content when the inheritance of accounts is restricted due to identity binding and multi-party personality rights and interests.
On the one hand, the relationship between information storage carriers and content has changed. Before the information age, the storage carrier of information and the content were "integrated", and the domination of traditional media such as paper and CD-ROMs by ownership could be extended to the recorded content; now, with the maturity of Internet technology, the domination of virtual property is no longer necessary for the direct control of real space or virtual space, and there has been a certain degree of separation between the two.
On the other hand, the identity attributes of the online social media account itself and the account content are different, and should be subject to different restrictions in inheritance. The requirements of the real-name system for Internet accounts have given the account itself a strong identity, and the information content published by the user has further strengthened the binding between the account itself and the user's identity, and the account itself has become the user's incarnation in the virtual world, and it is necessary to strengthen the control of the account itself when inheriting. However, there is no obvious identity implication between virtual items and virtual currencies in the account content and the user, and it is more reflected in the property value attribute, and the restrictions are correspondingly reduced.
Therefore, when constructing the inheritance rules, it is necessary to distinguish between the account itself and the account content, and consider their legal attributes and inheritability respectively as two independent rights objects, and whether the account itself can be inherited does not affect the independent judgment on the inheritability of the account content. After all, user interaction and information sharing are the main contents of online social accounts, and the interests of the heirs are more reflected in the inheritance of the account content than the management of the account itself, and obtaining the operation authority of the account is only a means for the heir to realize the interests rather than the goal.
2. Both personality rights and property rights and interests
In terms of personality rights, the account itself has significant identity attributes, carrying specific community relationships and identity information. When registering an online social media account, users are often required to verify their real identity information first, and bind it to personal information such as mobile phone numbers and email addresses. In the process of communication and interaction between users on social platforms, the account itself forms a fixed connection with the user, and can directly point to a specific individual based on the account alone. At the same time, the content of the account is also closely related to human dignity and other rights and interests. Although the text, pictures, audio, and video in the user's chat history are stored in the network cloud and have not yet been converted into tangible objects, they also record the portraits of the user and others, and the personal privacy that they do not want to be known to others, and the user's inappropriate remarks may also infringe on the reputation rights of others.
As far as property rights and interests are concerned, online social media accounts meet the three basic conditions for becoming property in traditional theories - utility (usefulness), scarcity, and controllability, and many virtual assets of users are hidden. First of all, utility includes both material and spiritual aspects. A platform account that is easy to identify or has auspicious symbolic meaning reflects the exchange value of the account itself. The "balance" in the wallet associated with a personal account is a direct reflection of property interests in real life, and also reflects the use value of the account content. Online social accounts can meet people's daily social and life needs, and also have certain spiritual value. Secondly, the scarcity of online social media accounts is reflected in the limited registration of the accounts themselves. The number of each account is automatically generated by the system, which is different and belongs to only one user, and cannot be re-registered and reused, and users cannot register multiple accounts without restrictions. The price can also reflect the scarcity of the property, and the high transaction price of a specific number, the exchange ratio of virtual currency to fiat currency, etc., are all evidence of its scarcity. Finally, the controllability of online social media accounts is reflected in the user's control over the account, although the control relies on the virtual space provided by the network operator, the user can independently decide the login of the account, the release of content, etc., and can also exclude the infringement of illegal acts such as theft of virtual property and leakage of account information by others.
It can be seen that online social media accounts involve both personality rights and property rights and interests, and are related to multiple parties, and the construction of inheritance rules should fully consider the characteristics of different assets, and respect and coordinate the rights and interests of multiple parties. With a high degree of personality as the criterion for judgment, the inheritable online virtual property can be divided into personality rights and interests virtual property and property rights and interests virtual property, so as to make a typological analysis of the inheritance rules of online social accounts. Where there is a close connection with the user's personality rights and interests or has a strong individual-oriented attribute, it shall be classified as personality rights and interests type virtual property. Where it is highly substitutable and has no personality characteristics attached, it is to be found to be virtual property with property rights and interests.
3. The intersection of virtual and real
As a new product of the Internet era, the virtuality of online social accounts is the most important feature that distinguishes them from general property. The exercise of its functions must depend on the normal operation of the network virtual space and the continuous and stable services provided by the network operator, and the production, storage and performance of content must also be carried by the network virtual space. This kind of intangibility, which is relatively detached from the real space and difficult for people to perceive, is also the root cause of the problem of inheritance of virtual assets such as online social accounts.
At the same time, the virtuality of online social media accounts is only relative to the direct perception of the physical world, and is not completely opposed to the real world. The virtual world is actually an extension of the real world, and it is the involvement of online social media accounts with real life that reflects the objectively existing interest relationship, forming rights and obligations in the legal sense, and is regulated by law. The law does not regulate all behaviors in the virtual world, and virtual behaviors that only have an impact in the virtual space, such as virtual marital relationships, do not endanger the objects protected by the law in real life, and do not need to be regulated by the law.
2. The inheritance problem of online social accounts
Online virtual property such as online social media accounts is not a subjective right conferred by law, but an objective existence and an object governed by specific rights. Article 127 of the Civil Code arranges it in Chapter 5 of the General Provisions "Civil Rights", which is protected as a new type of civil rights that has emerged to meet the needs of the development of the Internet and big data. However, the current legislation, academic discussions, and judicial practice have not yet given a unified and clear answer to the legal attributes of online social media accounts, and there are even more opinions on their inheritance rules.
(1) The inheritability of online social media accounts is unclear
1. The legislation is only inductive
In the process of compiling the General Provisions of the original Civil Law and the Civil Code, online virtual property has always been a key topic of legislative concern. The first draft of the General Provisions of the Civil Law (Draft) released on July 5, 2016 clearly classifies online virtual property as the object of property rights. Legislative experts and scholars are hotly debated, and it is difficult to reconcile different views. The revised version of the first draft of September 13, 2016 places it alongside income, savings, housing, etc., and stipulates that such property rights are protected by law. The second draft avoided the characterization of online virtual property, and this provision was subsequently retained in its entirety as Article 127 of the General Provisions of the original Civil Law and Article 127 of the Civil Code.
The current legislation declares the protection of online virtual property, but this provision is extremely simplified, and only serves as a leading and principled regulation, and the concept, legal attributes, inheritance rules and other issues of online virtual property have not formed a legislative conviction. There is no way to find a practical solution to the legal issues related to online social media accounts, and the vague legislative model has left the academic community confused about the nature and ownership of online social media accounts, and the courts have not been able to make relatively uniform judgments on relevant legal disputes.
2. There is controversy about characterization in academia and the judiciary
(1) Academic controversy
However, there has not yet been a broad consensus on its legal attributes, and there is mainly a confrontation between the theory of the object of property rights, the object of creditor's rights, the object of intellectual property rights and the theory of new types of property. With the heated controversy, the theory of the object of property right and the theory of the object of creditor's right have become the mainstream views, but a unified understanding has not yet been achieved.
The object theory of property rights holds that online virtual property such as online social media accounts has the characteristics of dominance, and the legal attribute should be a thing, and the right holder enjoys a real right over it. Judging from the three revisions to the provisions on online virtual property in the General Provisions of the Civil Law (Draft), the clues of its development reveal the legislative tendency of the legislature to identify it as the object of real rights, but it has adopted a vague treatment in order to avoid causing controversy. The civil law should closely follow the development trend of Internet technology, and use the expansion of the theory of tangible things to realize the positioning of the object of property rights of virtual property, so as to provide basic legal protection for the inheritance and transfer of virtual property.
According to the object of creditor's rights theory, an online social account is a creditor's right certificate for a user to request a network operator to provide it with specific service content based on the network user service agreement, and it carries the authority and functions set by the network operator in advance. At the same time, the exercise of user rights must rely on the technical cooperation of the network operator and the normal operation of the server, and is restricted by the service agreement.
The intellectual property object theory holds that users spend a lot of energy and time in the process of using the account, and the investment of intellectual labor gives the content of the account originality, and the online social media account should be characterized as the user's work and thus subject to the regulation of the copyright law. Another view is that network operators enjoy the copyright of the creative intellectual achievement of online social media accounts due to the development of online social media platforms and software, and users only enjoy the right to use them with their permission.
The new property doctrine argues that the various doctrines on virtual property are clearly flawed and cannot be programmed as an existing type of right. Although virtual property has the dominance of traditional property rights, it cannot become a real property right due to the characteristics of indirect possession, conditional use, procedural dependence, etc., and its uniqueness should be squarely recognized and defined as a new type of property right that combines the attributes of creditor's rights and property rights.
(2) Judicial confusion
As the "first case of online virtual property in China", the appeal case of Li Mouchen v. Beijing Bei Bing Technology Development Co., Ltd. over an entertainment service contract dispute opened the prelude to the mainland's legal regulation of online virtual property. Nowadays, the number of legal disputes over online virtual property such as online social media accounts is increasing day by day, and it is found that in civil judicial practice, the court usually does not determine the legal attributes of online social media accounts, but takes the creditor's rights disputes such as contract and tort as the cause of action, and clarifies the rights and obligations of the two parties on the basis of the online user service agreement, and makes judgments based on the original contract law, civil code and other creditor's rights rules.
As far as the sale and purchase of online social media accounts is concerned, the court usually recognizes the property nature of the account in the legal sense, classifies it as online virtual property, and obtains appropriate legal evaluation and relief, and finds that the contract is legal and valid on the grounds that the account sales contract is an expression of the true intentions of both parties and the content does not violate the mandatory provisions of laws and regulations. At the same time, in judicial practice, there are also cases in judicial practice that the contract is illegal and invalid on the grounds that online social media accounts are the carriers of organic integration of personal information, which carry a large amount of personal information unique to users and friends, and that the purchase and sale of WeChat accounts constitutes the purchase and sale of other people's personal information.
As far as the inheritance of online social media accounts is concerned, few courts have made judgments on related disputes, and in practice, network operators often reject inheritance applications on the grounds that the ownership of the account belongs to the operator and the user's right to use it does not fall within the scope of legal inheritance. The user's account password can only be retrieved by "retrieving the stolen number", and the heir needs to provide a variety of security information and authenticate to obtain the password.
3. In practice, many agreements prohibit inheritance
In practice, the premise for users to enjoy network services is to register and agree to the user service agreement, and in order to pursue convenience and efficiency, network operators often establish specific rights and obligations with users based on pre-drafted terms. However, network operators are for-profit enterprises by nature, and in order to avoid commercial risks and seek more economic benefits, they often make unreasonable restrictions on the rights of users in the agreement, resulting in the substantive inequality of the rights and obligations of both parties. In the user service agreements of WeChat and QQ, they not only stipulate that the ownership of the account itself belongs to the operator.
The user only has the right to use the account, and the user is also prohibited from transferring it through inheritance or other means. In the field of private law, the lack of legislation makes the user service agreement an important basis for judging whether the account itself can be inherited, and the prohibition clause in the agreement has become a safe haven for network operators to refuse the interests of the heirs.
(2) The rules for inheritance of online social media accounts are unclear
Online social media accounts include a variety of rights and interests, and their inheritance is closely related to the privacy interests of the deceased, the personality rights and interests of third parties, the obligation of network operators to protect communication secrets, and the memory needs of close relatives. The construction of inheritance rules requires the weighing and coordination of the rights and interests of all parties, but there is no positive response in practice and legislation on which rights and interests can be inherited, how to choose between conflicts, and why inheritance rules are specific.
For the deceased, the information and chat records posted before his death may involve private information that he does not want to be known to others, including close relatives. Allowing the inheritance of online social media accounts is likely to be contrary to the wishes of the relevant subjects, and the personality rights and interests of the deceased have also been violated. For a third party, the content and information of the deceased may involve the privacy, portrait, name and other personality rights and interests of others, and the transfer of online social media accounts is equivalent to allowing the possibility of infringement by the heirs, which is actually a continuation of the infringement. For network operators, public law and privacy protection agreements require them to undertake the obligation to protect users' communication secrets, but the decedent is not the only communication participant, allowing the inheritance of online social media accounts is an infringement of others' communication secrets, and inheritance after the death of users is not an exception to the protection obligation. For close relatives, online social media accounts carry the life experience of the deceased and their good memories, and the purpose of inheritance is not only to preserve the property itself, but also to vent the feelings of remembrance. The conflict of rights and interests of multiple parties makes it difficult to clarify the inheritance rules of online social accounts.
3. Analysis of the heritability of online social media accounts
Defining what kind of rights the online virtual property belongs to is helpful to clarify the relationship between the online social media account and the online virtual property, and then clarify the legal attributes of the online social media account. However, whether the prohibition of inheritance clause in practice has the effect of hindering the inheritance of online social media accounts needs to be discussed from the perspective of substance and procedure. At the same time, the distinction between the account itself and the content of the account is an inherent feature of online social media accounts, and the legal attributes and inheritability of the two should be examined separately rather than confused.
(1) In the narrow sense, online virtual property is the object of real rights
1. Identification and analysis of academic disputes
According to the literal interpretation, network virtual property is a kind of property that exists in the network virtual environment, that is, it belongs to the civil law property system and has the utility, scarcity and controllability of property, and has virtuality as a distinctive feature. However, in a narrow sense, that is, the real network virtual property, it should only refer to the part of the information resources that exist in the virtual network that has real property value, that is, property rights and interests, and those parts that are purely personal rights and interests under the banner of network virtual property are excluded. The combination of personality rights and property rights makes the relationship between online social media accounts and online virtual property in the narrow sense intersect.
As for what is network virtual property in the narrow sense, various theories have their own rationality, and the due meaning of virtual property is shown from different angles. The object of creditor's rights theory emphasizes the strong correlation between virtual property and network user service agreement, but the user agreement is, after all, the cause of virtual property, not the virtual property itself. The object of the service contract is the user's request for the network operator to provide services, and the virtual property is only the object of the contract, that is, the subject matter. The content information generated by the user in the process of receiving payment has independent value and cannot be ignored, and the object of property right theory is not a complete negation of the object of creditor's rights, but on the basis of affirming that virtual property has become a representation of contractual relations, acknowledging that the specific behavior of the user may also derive an object of rights with independent value, and making a positive response to its legal attributes.
The intellectual property object theory emphasizes the intangibility of virtual property, but fails to recognize that virtual property objectively exists in the cyberspace constructed by binary data. Its physical property is electromagnetic recording, which is essentially an intangible object that can independently meet human needs, and cannot only be perceived and expressed by relying on people's abstract thinking or externalization with the help of tangible carriers. In addition, many virtual properties acquired by users under pre-defined procedures fundamentally do not meet the requirements for originality of the work. The software developer also only owns the copyright in the computer software that generates the virtual property, and this right cannot automatically extend to the control of all virtual property.
The new property theory emphasizes the complex rights and interests of virtual property, but virtual property is still dominant property in nature, and the virtuality is not enough to separate it from the dual system of property rights and creditor's rights. The reconstruction of the dualistic system is quite complex and costly, requiring long-term accumulation of legislative and judicial experience, and the time is not yet ripe for change.
2. The proof of the object of property right
Under the legal framework of property, online virtual property in a narrow sense should be a kind of thing, which is controlled by the right holder as the object of property rights.
According to Article 114 of the Civil Code, the elements of property rights include object specificity, direct dominance and exclusivity. First of all, the recording of data and information and other technical means provide a material basis for the distinction of virtual property and the identification of other users. Secondly, dominance refers to the ability of the right holder to achieve the purpose of the right based on the unilateral expression of will, which is also the primary criterion for distinguishing between property rights and creditor's rights. The connotation and expression of domination are constantly developing with the progress of society, initially referring only to the direct de facto domination of physical objects, and later to the indirect domination of the value of goods through mortgages, leases, etc., and now also including the domination of the rights connection of natural forces. In other words, the domination of the information society is no longer obsessed with the material form of property, but instead focuses on whether the owner of the property is related to the property in terms of rights and obligations, and can carry out acts that directly affect the status and destiny of certain property interests. Moreover, the legal status and degree of protection of different objects are different, and the right of control needs to follow specific conditions and methods for exercising. The right holder's control over the virtual property realizes the control of the right connection by unilateral will, and is restricted in exercise due to its own network dependence and the network user service agreement signed, which is not the traditional absolute control. Finally, the limitation of rights does not amount to the loss of rights. Exclusivity is embodied in the fact that although the virtual property is stored in the network server on the outside, the user can still independently occupy the interests of the virtual property and decide its existence and change independently. In addition, the virtual property of the world shall not be illegally infringed by a third party or the network operator, and other persons shall not enjoy the exclusive right to control the same virtual property.
At the same time, social development and scientific and technological breakthroughs have promoted the expansion of the object of property rights, and now the classification of network virtual property in the narrow sense as tangible objects is facing the same difficulties and resistance as the identification of natural forces as the object of property rights. The rigid application of the corporeal property theory will only make it difficult for the current legislation and judicial practice to cope with the impact of online virtual property disputes, and the narrow sense of online virtual property should be included in the property rights protection system, so as to adapt to the economic transformation in the new era on the basis of maintaining the stability of the property rights order. The network dependency and restriction of the exercise of virtual property itself are actually the embodiment of the diversity of the objects of real rights, and its legal attributes cannot be denied in essence.
(2) The prohibition of inheritance clause is invalid
The non-inheritance clause in the user service agreement is a contract clause pre-drafted by the network operator through the network program for repeated use, which is essentially a standard clause. However, ownership is a concept in property law, and this clause defines the account itself as the object of property rights and the ownership enjoyed by the operator lacks legal support, and is contrary to the true legal attributes of the account itself. Procedurally and substantively, the prohibition of succession does not automatically have legal effect.
Procedurally, this clause does not serve to remind the user of attention or understanding, and according to Article 496, paragraph 2 of the Civil Code, the user can claim that it does not become the content of the contract. When registering an online social media account, the social software usually displays the user service agreement in the form of a hyperlink, and requires the user to check "read and agree" before proceeding to the next step. However, the hyperlink itself has a certain degree of concealment, and whether the user clicks on the hyperlink does not affect the progress of the registration procedure, and the bold mark of the specific clause in the hyperlink fails to fulfill the substantive reminder obligation for the user. In fact, the standard clauses represent the most advantageous business option for the network operator, and the user does not have the right to amend the contract even after reviewing the prohibition of inheritance.
Substantively, the clause also has no legal effect against the heirs. According to the principle of privity of contract, the agreement is only legally binding between the user and the network operator, and cannot restrict the legitimate rights and interests of a third party other than the other party to the contract, i.e., the successor. In addition, the Constitution, the Civil Code and other laws clearly stipulate that the right of inheritance is a legal right enjoyed by natural persons, and network operators have no right to deprive it. The prohibition of inheritance clause excludes the main rights of users and should be invalid under Article 497 of the Civil Code, and there is no justifiable basis for network operators to prohibit the inheritance of online social media accounts.
(3) The online social media account itself is highly identifiable and must not be inherited
1. The account itself is a credit certificate that carries personal information
As a "virtual channel", the online social account itself is often the only entrance to the social platform, connecting the real world and the virtual world, and providing a path for users to exclusively enter the social platform for communication and sharing. In essence, the network user service agreement signed between the user and the network operator is a standardized continuous service contract, and the account itself is subordinate to the service contract, which becomes a certificate to prove the validity of the creditor's rights, and is also the epitome of the creditor's rights and debts relationship between the user and the network operator. Users log in to social media platforms to perform operations and request network operators to provide specific network services on this basis. However, whether it can be regarded as property inheritance also needs to take into account that the account itself has significant identity due to the real-name system of Internet accounts and the long-term use of users, and carries a large amount of identity information of users and friends.
On the one hand, the account itself is sufficient to individually identify a specific user. Article 9 of the Provisions on the Management of Internet User Account Information and Article 24, Paragraph 1 of the Cybersecurity Law enforce the real-name system for online accounts, stipulating that if a network operator provides users with services such as information release and instant messaging, it shall require the user to provide authentication of real identity information, including but not limited to mobile phone numbers, ID numbers, etc. In practice, social platforms often allow users to log in with a "mobile phone number-SMS verification code" instead of a general "account-password", and the designated user can also be found through the search of the mobile phone number in the function of adding friends. The so-called "pretty number" is only announced in advance by the network operator to the previously uncertain account number, and users can choose a specific number and then complete the registration process such as setting a password. However, the binding of the number to the real information such as the secret mobile phone is still a necessary step to complete the registration, and the online social media account itself is inseparably implicated with the user's real identity information such as name, mobile phone number, and ID number.
On the other hand, the account itself can be combined with other information to identify a specific user. In the process of daily communication and information release, text, pictures, audio-visual materials, etc. record the user's appearance, personality, address and whereabouts and other information, and the cross-identification of the account itself and the account's avatar and nickname can also quickly lock the user's individual, so as to distinguish it from other users. The account itself carries the user's unique identifiable information, and its individual pointing attribute is continuously strengthened in the process of use, becoming the user's "electronic ID card" in the social platform.
Therefore, as the identity of a natural person in the virtual world, the online social media account itself is both directly identifiable and indirectly related, and should not only be a proof of creditor's right for the user to exercise his rights, but also personal information that is electronically recorded and can identify a specific natural person alone or in combination with other information.
2. The account itself cannot be inherited
For the user himself, the account itself is "not only a carrier for natural persons to participate in social interactions, but also a tool for personal personality expression and personality development", which mainly reflects the user's personal attributes such as personal dignity, and property attributes such as commercial value are in a subordinate position. The personal information they carry is located in the Personality Rights section of the Civil Code, and shall be found to be the user's personality rights and interests. However, personality rights and interests are exclusive to the person and cannot be separated from natural persons, and paragraphs 2 of articles 992 and 1122 of the Civil Code also limit the object of inheritance, i.e., inheritance, only property and not personality rights. As a result, the identity of the account itself is strictly limited in its circulation, and it cannot be transferred to heirs even if the user dies.
For other users, social communication is the main function of online social media accounts, and users have created a unique personality portrait of users in the process of long-term information release and communication, and users have also recognized and trusted the specific identity of the account representative. Unlike traditional possession, where the heir knows the account password and obtains the control and management authority of the account, allowing the inheritance of the account means that the heir may conduct normal social interactions on behalf of the user. At this time, other users' right to know is violated, and the violation of the basic rules of social relations will have an impact on the Internet ecology and even the real social order. Ill-intentioned heirs may also take advantage of the trust of other users to commit fraud crimes, and the inheritance of accounts makes it difficult to trace the source of crimes.
Similar to the account itself, the mobile phone number is a tool for receiving services from the operator, and the rights and attributes are not specific, and can become a part of personal rights and interests or property rights. However, the property attribute of mobile phone numbers is more significant, and it belongs to the state, and the system of paid use is implemented. Telecom users must regularly pay rent fees to telecom operators or reach the minimum consumption to maintain the use of mobile phone numbers, and the transfer of numbers is also supported by the Ministry of Industry and Information Technology of the People's Republic of China and telecom operators. The registration and use of the account itself is often free, and the registration fee of the "pretty account" is essentially the super member service fee required for the registration of the beautiful account stipulated by the platform. The property attributes of the account itself have also been greatly reduced due to the restriction of circulation.
Some companies have made it clear that the user-specific information in online social media accounts cannot be separated from the account itself. The account itself has an exclusive binding relationship with the user's identity information, and its personal attributes are in the first place, while the property attributes are relatively weak. Therefore, from the perspective of protecting the rights and interests of individual citizens and social public order, the inheritance of the account itself should be prohibited.
(4) There are other ways to realize the interests of the heirs
The inheritance system can avoid the property of the deceased being in a power vacuum due to the death of the right holder, and the interests of the heir to obtain the user account are mainly to remember the deceased and inherit the account content. However, the inheritance of the account itself is only an optional way to meet the interest claim, but not a necessary way, and the negation of the inheritance does not mean that the account is automatically cancelled, nor will it block the final realization of the interest claim.
1. Freeze the account of the deceased
In the absence of a special agreement, the death of one of the parties to the contract does not necessarily lead to the termination of the rights and obligations of the contract, and the death of the user does not automatically refer to the cancellation of the account. For legitimate reasons such as remembering users and retrieving account information, network operators shall have the obligation to keep the account as a whole while enjoying the right to recover expired accounts through the provisions of the user service agreement. It may be stipulated in the agreement that the account itself and its content will be retained by default when the user has not made special arrangements, and will not be cancelled until the deceased's close relatives have passed away.
First of all, the retention period is set to allow the heirs to discover the virtual property in a timely manner and take the initiative to apply for inheritance for property transfer, and also provide a basis for them to protect the personality rights and interests in the deceased's account. In addition, the account may store valuable commercial information or case clues, and the retention of the account is conducive to the right holder or the public security organ to obtain information as evidence to ascertain the facts.
Second, the account is frozen during the retention period. Out of humanitarian concern, network operators can use accounts as online mourning sites, but mark the death of users, so as to retain the content posted by users before their deaths, and provide emotional catharsis for other users' comments and remembrances. Close relatives may correct incorrect personal information or apply to the court for information, but they may not manage the account or make free remarks on behalf of the user.
Finally, the retention period is the period of survival of the deceased's close relatives. After the deceased's close relatives have passed away, the interests of the close relatives have been basically satisfied, the protection value of the account and the need for remembrance have been greatly reduced, and continuing to retain it will unlimitedly expand the network operator's management costs, and the account should be cancelled in a timely manner. Of course, if the user makes other arrangements before his death, the wishes of the deceased shall be fully respected. The user can take the initiative to cancel the account before his death, or clarify the cancellation conditions and period, but it shall not be retained permanently.
2. Inherit account content
Although the account itself cannot be directly inherited as a numerical representation of the user's identity, the account content is still inherited. Since the account itself is separate from the account content, there may be differences in the legal attributes and inheritability of the two. The content of the account hides many property rights and interests left by users, among which virtual property that has an independent real property value and is sufficient to become the object of property rights alone may be network virtual property in the narrow sense, carrying the right of the user to request the network operator to pay a certain act or money, or it may be a creditor's right, etc.
Article 1122 of the Civil Code limits the scope of inheritance to the personal legal property left by a natural person when he or she dies, and the property rights and interests in the content of the user's account meet both the positive and negative elements of the inheritance and are still inheritable. First of all, the above-mentioned property rights and interests are stored in the account content of natural person users, whether they are objects or debts, they belong to the scope of property, and their property attributes are also reflected in the above analysis of the online social media account that meets the three characteristics of property. Second, the property should be the user's private property, the software developer only enjoys the copyright of the computer software that generates the online social media account, and the network operator only has the right to request the user to comply with the rules of the platform, and cannot automatically obtain the right to dominate the things of independent value generated by the user in the process of receiving the service. Finally, if the user obtains the property through legal sources stipulated by law and network operators, rather than illegal means such as theft and fraud, and its content and performance are not prohibited by law from circulating because they involve pornography, vulgarity, terrorism, etc., it is in line with the legitimacy of the estate. As far as the negative elements are concerned, such property is not based on entrustment or specific status, etc., and cannot be separated from creditors, does not have personal exclusivity, and naturally does not belong to an inheritance that cannot be inherited by law or nature.
4. Rules for inheriting the content of online social media accounts
The property rights and interests in the content of online social media accounts have the possibility of inheritance, but they may have both personality attributes and property attributes, and different contents present different characteristics, and the interests of the heirs are also different. It is not enough to define and regulate the whole picture in a general way. It is necessary to conduct a typological analysis based on a high degree of personality as the distinguishing criterion, and to cut the above-mentioned property rights and interests in combination with typical enumerations, clarify their extension and clarify their legal positioning, and construct scientific and reasonable inheritance rules in the balance of the interests of all parties.
(1) Rules for the inheritance of personality rights and interests of virtual assets
1. Inheritance Rules for Virtual Items
(1) Virtual items are network virtual assets in a narrow sense
Virtual items refer to content information created by users, recording their thoughts, seeing and hearings, and being directly perceived by humans, mainly including chat records, text, pictures, audio-visual materials, etc. in information sharing platforms. Among them, intellectual achievements that are original in the fields of literature, art and science shall be recognized as works, and regardless of whether they are published by users or not, they can be protected by the Copyright Law, and the property rights in the copyright can also be inherited. However, the problem is that the object of protection of copyright is intellectual achievements rather than carriers, and the carriers themselves are virtual
The characterization and attribution of the items are not clear. In particular, those contents that do not have originality, but still have a certain economic or spiritual value for the heirs, should also be protected by law.
Carriers, such as letters, diaries, pictures, and videos in the real world, are generally protected as movable property in law, and can also be inherited after the death of the owner. However, virtual items are stored in the virtual space and cannot be inherited by directly transferring the ownership of the carrier after the user's death. As the rights and interests generated by the user in the process of using the account, the virtual item is essentially the same as the above-mentioned tangible objects, and the content recorded in it is the value connotation, but the form of the carrier has changed. In other words, virtual items are the manifestation of physical property in the virtual space, and carry the personality interests of users and others, and should be recognized as the most personalized network virtual property in the narrow sense, and enter the category of inheritance due to the user's creation.
(2) Inheritance rules
Whether virtual items can be inherited is not only a game between the legitimate rights and interests of the decedent, the heir and the third party, just like the inheritance in kind, but also related to the rights and interests of network operators and other relevant personnel. After the death of the user, the value basis of personality rights and interests changes, and the protection of the interests of the deceased is more transformed into the protection of the spiritual interests of close relatives and the social public interest; the heirs should also respect the privacy interests of the deceased with the privacy content that the user sets before his death, which is only visible to himself; the third party's claim is not premised on the control of the carrier, and the virtual item still has the right to claim protection for the infringement after the inheritance; the protection of communication secrets is actually the secrecy of the communication process, and the profit-seeking nature of the network operator makes it lack the motivation to actually perform the confidentiality obligation, and the so-called confidentiality is only a consideration of commercial interests and risks。 Comprehensively considering the interests of all parties, network operators should be set up as active facilitators, generally allowing the inheritance of virtual items, giving priority to the wishes of the deceased, and limiting content that might infringe on the personality rights and interests of the deceased and third parties within the scope of remembrance, and must not be arbitrarily used beyond the scope of reasonable expectations.
General virtual items only have economic or spiritual value to specific heirs, and giving priority to the claims of heirs and allowing their transfer should be the mainstream of inheritance rules, which has also been recognized by network operators in practice. However, the use and value of content information depend on the support of network operators and Internet technology, and it is of no practical significance to directly apply the relevant rules of property inheritance to deliver data information. The heir may apply for inheritance through manual services such as "Tencent Customer Service" and other manual services to submit supporting materials, property lists, and other documents to the network operator, and request them to assist in sorting out the content information in the deceased user's account according to the list. Network operators can copy them to a removable storage device such as optical discs to form a copy, register and archive them and hand them over to heirs for safekeeping, thus avoiding conflicts between the intangible nature of virtual items and the tangible delivery of property. Of course, the network operator, as a technical facilitator, only needs to fulfill the obligation of formal examination of the relevant documents.
Where the deceased has indicated his or her intention to keep confidential in advance through means such as a will or making it visible only to himself, a model of absolute non-disclosure shall be adopted, giving priority to protecting the privacy of the deceased, and the network operator shall freeze it after the user's death, excluding it from the scope of inheritance. Virtual items that have not been specially arranged, even if they involve group interests, should adopt a relatively public model, affirming the privacy expectations of the heirs to "see through but not say the truth", and allow the disclosure of private information within the scope of the heirs only for the purpose of remembrance, so as to achieve the coordination of privacy protection and memorial needs. Of course, for the use of the heir beyond the scope of reasonable expectations, it should be determined that it is at fault, and the right holder can claim that it bears the corresponding tort liability.
2. Inheritance rules for other personality rights and interests virtual assets
Of course, personality rights and interests with personal exclusivity cannot be inherited, and although personality rights and interests virtual property is closely related to the user's personality rights and interests, its essence is still property rights and interests, and it has the possibility of inheritance. In addition to economic value, this kind of property also contains stronger emotional sustenance, and the remembrance needs of close relatives are the most urgent and in line with traditional ethics, and relative disclosure within the scope of heirs should not be recognized as a fault infringement. Of course, the will and personal dignity of the deceased should be taken seriously, and a better way is to encourage users to clarify their willingness to dispose of the content of their accounts by making wills and other means, and network operators to provide technical support such as privacy labels and adding personalized terms to achieve the coordination of multiple claims.
(2) Rules for the inheritance of virtual property of property rights and interests
1. Inheritance rules for virtual currency
(1) Virtual currency is a network virtual property in a narrow sense
Virtual currency is an item issued by a network operator, that is, a non-financial institution, with a clear price, which is exchanged by RMB in a stable proportion in one direction, and is circulated as a general equivalent on online social platforms. The economic value of virtual currency is very significant, which can not only meet the needs of users to purchase virtual products or services and have use value, but also play a function similar to the circulation and payment of real currency on social platforms and have exchange value. At the same time, virtual currency is virtual, relying on the network virtual space to exist and play a role, the application limitation makes it can only purchase virtual products and services provided by specific network operators, and does not have the same value for other platforms, and irreversibility makes it can only be exchanged from RMB to virtual currency for one-way transactions, but cannot be reversed circulation, nor can it be used to purchase physical objects. At present, the concept of virtual currency in online games has been relatively clearly defined, but it is relatively blank in the field of social platforms, but in terms of function, the two have obvious commonalities, and relevant rules can be understood and applied by reference.
Although it is not legal tender, it can only be directly exchanged by RMB at a stable proportion, connecting legal tender with network services and products, which is essentially the embodiment of the value of legal tender in the virtual network. Virtual currency has a pure property value attribute, which is a highly substitutable property interest without personality characteristics, and virtuality does not affect its essential characteristics. In terms of legal attributes, it should be the narrowly defined network virtual property with the most significant economic value.
(2) Inheritance rules
The virtual currency in the account, as a network virtual property in the narrow sense, is acquired by the user after purchase, and is his inalienable legal property, and will naturally be inherited after the user's death. However, after all, virtual currency has the characteristics of limited application scope and irreversibility, and in principle, it cannot be reversed into legal tender and returned, and the Interim Measures for the Administration of Online Games, which were repealed due to the adjustment of the functions of the competent authorities, stipulate that virtual currency in the game is only allowed to be returned or exchanged in legal tender or other methods accepted by users when the operator terminates the provision of services or the operation right is transferred.
For virtual currencies purchased on social platforms that have not yet been used, their property attributes should be affirmed and inheritance should be realized through transfer of possession. The preferred inheritance rule is to empty the virtual currency of the deceased's account and transfer it to the heir's account to maintain the stability of the current property order. If the heir does not have an account on the social platform or otherwise requests, the fiat currency can also be returned to the heir, but it must be calculated according to the proportion of the price at the time of purchase by the deceased.
2. Inheritance rules for electronic money
(1) Electronic money is a monetary claim
Traditional bank payment services are not enough to meet people's rapidly growing demand, emerging non-financial institutions have begun to intervene in the payment service system, and services such as "wallets" on social platforms provide digital means of payment, gradually forming a complete network payment system. The electronic money discussed here only includes the means of payment provided by non-financial institutions such as social platforms, such as "change" and "balance" in the account
amount", excluding electronic money issued by financial institutions such as commercial banks. The main business of both is to provide currency transfer services as an intermediary between payees and payees, but the application scope of the former is limited to merchants who have signed service agreements, and is not a global payment tool. Compared with virtual currency, the application scope of electronic money is not limited to virtual products and services, and can be consumed physically and reversed into legal tender at any time, which has the same value for any platform.
The essence of electronic money is that the user pays the equivalent bank deposit as consideration to obtain control of the prepaid value provided by the network operator, and the network operator becomes a transaction mediation platform according to the entrustment contract to provide users with corresponding payment services. This prepaid value can only be converted into bank accounts after "withdrawal", and it is regulated as legal tender. According to the rule of "possession is ownership" of money, the legal attribute of electronic money is the user's claim against the network operator, requiring it to pay a certain amount of money as the content.
(2) Inheritance rules
The People's Bank of China Law limits the legal tender of the mainland to the RMB uniformly issued by the People's Bank of China, and although the electronic currency in the social platform cannot be directly equivalent to the digitization of legal tender, it can be converted into legal tender at any time, representing the user's monetary claim against the network operator, and its inheritability should be clarified. After the death of the user, the network operator needs to conduct a formal review of the relevant information, and after the certification is passed, all the claims will be transferred to the heirs, or they can be "withdrawn" into legal tender and then transferred.
3. Inheritance rules for other property rights and interests of virtual property
In addition to virtual currency and electronic money, property rights and interests with a high degree of fungibility and no personality characteristics attached to the content of online social media accounts are also the category of virtual property with property rights and interests, and their economic value is extremely significant, and there are usually no legal obstacles to inheritance. After analyzing its legal attributes, it is sufficient to inherit it by the heirs, but pay attention to the rules of conversion between it and fiat currency.
epilogue
The change of information network technology and the popularization of social software make us go back and forth between the real world and the virtual world every day, and whether the online social account can be inherited after the death of the user is a balance between the protection of personality rights and interests and the openness of network data, and it is also a contest between the interests of the heirs and the protection of the rights and interests of network operators and other related parties. The lack of current legislative systems, the confusion of definitions in academia and the judiciary, and the prohibition of inheritance in practice have all led to unclear inheritance of online social media accounts, and the conflict of rights and interests of multiple parties has made their inheritance rules unclear. However, the prohibition of inheritance does not have the effect of preventing inheritance from taking place, and online social media accounts essentially consist of the account itself and the content of the account. Although the account itself is highly identifiable and cannot be inherited, the property rights and interests in the account content that belong to the category of inheritance are still inheritable. The legal attributes of the model can be clarified according to the typological analysis combined with the typical enumerated model, and the corresponding inheritance rules can be established at the same time, so as to promote the sustainable and healthy development of the network society.