The perpetuity of the person on social networks in the face of the regulation of Digital Law in the Civil Code
Marketing platforms specializing in Instagram estimate that the amount paid to an influencer for a publication varies according to the number of followers.
The amounts can vary from R$500 to R$2,500 for those with up to 10,000 followers, while the increase is absurdly exponential for those with over 1 million fans, for whom the revenue from a single post can start at R$50,000 and can reach over R$2 million.
The engagement power of influencers is the biggest attraction for brands, which have long since put traditional media to one side, investing increasingly in Instagram accounts, which reach consumers more effectively.
There is no doubt, therefore, that the Instagram profile of these influencers is an asset that can and should have an estimated economic value.
To this extent, companies specializing in valuation estimate that the Instagram of a personality with 20 million followers, taking into account the regressive engagement over 20 years and other factors such as taxes and other costs, could be worth more than 100 million Reais.
With the eventual death of the influencer, the questions that arise are:
Is a social media profile an asset?
If so, where will these assets go?
In the absence of any discipline under Brazilian law, the Draft Civil Code currently before the National Congress answers these questions, providing that yes, all intangible and immaterial assets with an estimated or estimable economic value are considered to be a person’s digital heritage and will therefore be subject to inheritance, either through probate or through a will.
It will be up to the profile holder to decide clearly, unequivocally and expressly on the fate of the account, with the option of deleting it, maintaining it or converting it into a memorial, in which case the account subsists but remains inactive, allowing visits but no new posts.
In the absence of a will from the deceased, the maintenance of the Instagram account will be forbidden to the heirs, who will have to choose between deletion and the transformation of the profile into a memorial.
I believe that the discipline of the matter, as proposed, stops the discussion on the ethics of the use of the image, name and other personality rights of the influencer after death, as recently debated when Volkswagen advertised the use of the image of singer Elis Regina through the use of Artificial Intelligence tools.
The regulation, as proposed in the Draft CC, is in line with the provisions of the Brazilian LGPD, which guarantees that the processing of personal data can only be carried out with the consent of the data subject.
This consent, as we have seen, if given in a will, must be provided in writing, in a clause that stands out from the rest, and the holder of the Instagram account can refer to specific purposes, stipulating what they can and cannot do from the administration of their profile, as well as who the administrator will be.
In any case, I believe that the discussion on the Draft, which includes the Book of Digital Civil Law, is very welcome. It aims at regulating the bases, principles, foundations and concepts of Digital Law, which will govern legal relationships in the virtual environment, providing legal relationships with security and transparency.
Philosophical debates aside, the lege ferenda treatment of the issue, by the civil law, promises the perpetuity of the person, at least in the digital environment, allowing, depending on the will of the absentee, the continuity of their legacy, including its economic exploitation.
This is exemplified by Belchior’s phrase in Sujeito de Sorte (Lucky Guy): LAST YEAR I DIED, BUT THIS YEAR I WON’T.
Autor: Maurício Aude • email: mauricio.aude@ernetoborges.com.br • Tel.: + 5565 99981 0853
