Herança digital e tutela póstuma de dados: uma análise da possibilidade da transmissibilidade dos bens digitais no ordenamento jurídico brasileiro

Abstract

This article aims to analyze the possibility of transmission of digital property when there is an absence of clear expression of intent by the de cujus through the perspective of posthumous data tutelage and the conflict between succession right and personality rights, while acknowledging the legislative gap in regards to this theme. Firstly, the concepts of heritage and personality rights will be analyzed in the Brazilian legal system. Secondly, the legal doctrines that discuss this theme will be examined as well as their application in the sphere of the Brazilian judiciary. Thirdly, a comparative study will be conducted between jurisprudence and doctrinal understandings of foreign law, especially German, Spanish, and American law, which will be followed by an analysis of law projects about this theme that are being discussed in the Brazilian legislative houses. Finally, the possibility of the digital heritage will be analyzed when there is an absence of expression of intent of the deceased and in what measure and circumstances it is possible to consider the transmission of digital property of the de cujus.