With Gmail, Google becomes a gravedigger of literary heritage?

Héloïse Jouanard lost her father, Gil, on March 25, 2021. A poet, he had invested himself with passion for more than 30 years in cultural action which produced a lot of exchanges with authors and creators. He himself wrote, in addition to two novels – A homebody nomad (2003) and White Roses (2016) at Phébus –, a body of work comprising more than fifty works.

A few months ago, her daughter decided, with the help of a public library, to devote a fund to her. ” From the month of April, I decided – with the director of heritage of the establishment – ​​to make a donation of all its possessions (that is to say only books, archives, documents). And this, to create a dedicated fund in the said library “, she explains to us. The latter will bring together the books, the library and the personal archives of the writer.

It already lists hundreds of letters, handwritten, written by friends as memorable as René Char, Lacarrière, Bonnefoy, Jaccottet, Bergounioux, Réda, Macé, Goffette, Gracq, Janvier, Michon, Trassard. ” Currently, this represents more than 300 writers. »

It’s exciting. But for 20 years, his correspondence was done by email, like all of us», explains Héloïse Jouanard. ” And There you go. “Because a year after the death of Gil, access to his email box is still denied to his daughter. ” Google tells me that no, we will not recover anything, although I have provided all the documents they asked me for. »

Not for lack, however, of having communicated the official documents in a duly authenticated English translation, of the various necessary certificates and other supporting documents. “I was asked for the notarial deeds proving that I am entitled. Notarial time being different from ours, a year passes. As soon as I get the notarial deed that elevates me to the rank of beneficiary, I go back to Google, which asks me to have all the documents translated by an official translator. Until then, I find all the normal procedure: they want proof that I am entitled, respect for privacy, etc.. »

Condolences, but no.

An enterprise as painful as it is long, which will end up being completed in the space of a few hours. The file, communicated in its entirety on May 17, receives the sanction of the American giant on May 18. “We are sorry for this loss and thank you for your patience. We have reviewed your request to obtain account content. After verifying settings, attributes and other relevant account information, we are unable to provide you with the requested content“, slice an email from The Google Accounts Team.

And to argue that the decision rests “on a multitude of factors, including legal restrictions. To protect the privacy of people using Google services, we are unable to share more about the account or discuss our choice in more detail.“. In short: “thank you for your understanding», but do not insist.

And suddenly, twenty years of exchanges – some bearing perhaps on his last book at Verdier,Suchin 2015 or the publication, precisely, ofwhite roses— are engulfed in the entrails of Google. “Initially, I was angry for the fund dedicated to my father. But I tell myself that if Google grants itself the archives of all French writers, it is an attack on French cultural heritage, in our country which has carried the principle of cultural exception to the heart of Europe.“, entrusts us his daughter.

I don’t think it will be possible…

The Cnil, which presides over digital destiny in France, states that when a user dies, his online legacy is sealed: this applies to both social accounts and electronic messaging. The Data Protection Act also indicates that you can, during your lifetime, designate a contact – and many online tools now have this option. However, the latter can only obtain a right of access on condition that the consultation of the information serves “settlement of the estate of the deceased“, specifies the Cnil.

The second option is to submit an opposition resulting in the closure of said account. However, the secrecy of correspondence would obviously intervene, to protect access to the email box. Only total account locking can be obtained, to guarantee total secrecy.

In principle, all our online accounts are strictly personal“, abounds the Superior Council of Notaries. And if the deceased did not report a future for his data, he does not become “not possible for relatives to access it“. The heirs, and a fortiori the beneficiaries, can however recover photographs, writings – falling into the category of family memories.

However, in the absence of instructions, establishing a digital heir, the rights will be extremely limited.

The procedure proposed by Google ensures collaboration “with the immediate family and legal representatives of the deceased user in order to close his account“. And in certain circumstances, not detailed, “we can restore content from his account“. However, security and confidentiality remain paramount and no password or login information is communicated.

Google against the CPI

Master Magaly Lhotel, lawyer in intellectual property law and digital law, confirms the limitations that the heirs face. Even justifying their status as beneficiaries, in the absence of given instructions, article 85 of the Data Protection Act is very restrictive.

The Council of State had the opportunity to rule on this subject in a decision of June 8, 2016 (10th and 9th chambers combined, n° 386525), considering that the Data Protection Act only allows the communication of data to the sole person to whom this data relates, thus excluding the heirs of the person concerned“says the lawyer. In this specific case, it was a question of accessing the telephone records of the plaintiffs’ mother.

For its part, the GDPR (General Data Protection Regulation), which stems from a European will, does not provide for specific provisions.

So what? Do you agree with Google’s opinion? “One solution could be to consider that the correspondence of the deceased constitutes intellectual works protected by copyright. As such, the author’s heirs would have the rights, since case law has been able to consider that correspondence could be protected under copyright», Analyzes the lawyer. Being able to consult these exchanges, within the framework of inheritance operations, would then fall within the framework that the Cnil evokes, linked to the processing of inheritance.

Paradox, and not the least, to qualify these exchanges as works of the mind, it would be necessary to consult them, in order to demonstrate their originality. And without access…”To date, there is no case law on access to electronic messaging by heirs on the basis of copyright, so this case could set a case law.“, smiles Me Lhotel. “I know it contains some interesting things: emails had become a central element in his exchanges“, concludes Héloïse Jouanard.

Not really the first time that Google would have had trouble with the Intellectual Property Code… Contacted, the company’s press service has not yet responded to our requests.

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