Case

The politicians Smith and Jones exchanged emails in which they discussed a planned tax increase and agreed that this plan should be kept secret until after the election. An unknown person at the internet company which ‘delivered’ the emails copied them and sent the copies to a newspaper. The newspaper informs Smith that it plans to publish the emails.

1. (a) Is Smith entitled to an injunction against the imminent publication of the emails?

2. (b) Would it make a difference if the conduct of the unknown person constitutes a criminal offence?

Discussions

Austria

Operative rules

Smith cannot initiate any legal proceedings.

Descriptive formants

§ 77 UrhG provides for the protection of letters, diaries and similar confidential records against public reading and publication. Arguably, an email may be regarded as a similar confidential document, like a letter, since it serves the same purpose.

Only documents in written form are protected by § 77 UrhG. An email fulfils this criterion. Although its content is saved, transmitted and presented electronically, it can still be read from the monitor. As a consequence, § 77 UrhG is directly applicable.

§ 77 UrhG only prohibits the dissemination of confidential documents if the ‘legitimate interests of the writer are affected’ (cf. § 78 UrhG and Cases 7 and 10). The honour and privacy of an individual are undoubtedly ‘legitimate interests’.