16 - Case 13: Brigitte's diaries

Summary

Case

Jonathan, a house owner, found some diaries in his attic belonging to Brigitte who had been living there twenty years before. Jonathan became the owner of the books and published the diaries. Does Brigitte have any claim against Jonathan? Would it make a difference if Jonathan made some effort to contact Brigitte before the publication?

Discussions

Austria

Operative rules

If Brigitte's legitimate interests are injured by the publication, she can request forbearance and publication of the judgment. Apart from this, she can recover damages for economic and non-economic loss.

Descriptive formants

It is irrelevant that Jonathan became the owner of the diaries. The property right according to § 354 ABGB has to be strictly segregated from copyright and personality rights.

If the diaries can be seen as a specific intellectual creation in terms of § 1 UrhG, Brigitte obtains protection as an author. Indeed, this would not make a big difference, since, generally speaking, the legal consequences for infringements of her copyright are the same as for violations of § 77 UrhG.

As already mentioned in Case 12, the protection of diaries, letters and similar confidential records under civil law is anchored in § 77 UrhG, which only prohibits the dissemination of such records if the ‘legitimate interests of the writer are injured’ (the field of these interests includes, inter alia, facts from private life). Brigitte can only take legal measures if this precondition is fulfilled.