Bens digitais: reconhecimento jurídico e implicações na sucessão legítima

Abstract

The emergence of digital technology has brought about various changes in societal life, leading to challenges for the national legal framework. Among these challenges, the present study aimed to investigate whether digital information, whether it has immediate economic content or not, can be subject to testamentary transmission according to the rules governing legitimate succession, especially considering the absence of specific legislation on the matter. To achieve this, a deductive methodology was employed, involving a bibliographic review across various branches of law due to the interdisciplinary nature of the topic. Additionally, a theoretical and qualitative research approach was conducted through a bibliographic examination of national and foreign books and articles. This aimed to identify the nature of the concepts addressed, provide an exposition of the theme, and present solutions to the discussed issues based on both national and international experiences. In light of this approach, through a constitutional civil interpretation of the themes related to the research objective, it was observed that the legal phenomenon of testamentary succession is constitutionally guaranteed under Article 5, Section X, of the Federal Constitution. In legitimate succession, only the deceased's assets with economic content are transmitted to the heirs. Regarding digital information, it was found that they fall within the concept of legal assets; however, not all of them have the same classification. In the present research, they were categorized as follows: digital assets with economic content were classified as patrimonial digital assets, while those related to personality rights were labeled as existential digital assets. Hybrid digital assets encompass elements of both economic and existential content. In this context, it was concluded that, in general, except in cases where the consumer is explicitly informed that they only possess the right of access, patrimonial digital assets are transmitted through the application of legitimate succession norms. Non-transferable digital assets are not subject to transmission. As for hybrid digital assets, their patrimonial aspects are transmissible due to their undeniable economic content. However, with respect to existential aspects, heirs should be restricted from accessing these assets in order to protect the personality rights of the deceased and third parties who were associated with them. Furthermore, in the case of hybrid digital assets, the hereditary transmission is not absolute, as heirs cannot introduce information that is incompatible with the identity assumed by the deceased during their lifetime, nor can they consent to the use of the deceased's personality rights for new commercial purposes.