Herança digital no direito brasileiro a tutela jurídica dos bens digitais híbridos em plataformas digitais

Abstract

The issue of digital heritage has raised many questions in the legal environment due to the complexity of legal relationships produced mainly from the use of technology, especially the internet. In this sense, based on the constitutional interpretation of civil law, this work aims to bring some solutions compatible with the Brazilian legal system to the issue of digital heritage, with emphasis on the transmission causa mortis of hybrid digital assets resulting from the contractual legal relationship existing between digital platform and user. Hybrid digital assets, due to their complex nature, are the leading cause of conflicting court decisions and divergent doctrinal lines of thought on the subject. Thus, through the deductive methodology of bibliographic review and based on the analysis of civil law, in its constitutional perspective, this research addressed works, scientific articles, scientific journals, reports and bills on the subject. To achieve the objective of this research, it was also necessary to analyze some situations arising from the contractual relationship between digital platform and user and their post mortem legal effects. Considering that the bills in progress in the National Congress do not solve, in an exhaustive manner, the problems arising from the post mortem transmissibility of digital assets, the text proposes parameters, with different solutions, for the patrimonial content and the existential content of the hybrid digital asset resulting from the contractual legal relationship between digital platform and user. Thus, the patrimonial digital assets and the patrimonial aspect of the hybrid digital asset are subject to the causa mortis succession, since they reflect economic interest, and consequently are part of the so-called digital heritage. As for the existential digital assets and the existential aspect of the hybrid digital asset, the rule, in these cases, is the non-transferability causa mortis, except in cases where the user has left a last will disposition to the contrary or an heir contact with the digital platform. And, in cases where the deceased did not dispose of his existential digital assets during his lifetime, it is understandable that the heirs have the right to access photos and videos published in the feed of the holder's profile or channel, as well as to download them, through judicial authorization, as a way to honor the memory of the deceased loved one. Regarding private messages, the judge must analyze the specific case to find a constitutionally adequate solution to a possible collision between fundamental rights.