This chapter introduces the reader to the handbook with a particular focus on the methodology employed by contributors to the book. Drawing on the various contributions, the chapter presents a brief comparative overview of the right to freedom of thought before offering some reflections on the scope of the right.

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’.

Case

After a famous statesman's retreat from politics, his former secretary published a biography revealing many details about his family life. Can the statesman sue the author and the publisher for damages and injunction?

Discussions

Austria

Operative rules

Whether the statesman is entitled to sue his former secretary and the publisher of the book for damages depends on particular circumstances.

Descriptive formants

In general, § 7 MedienG, which protects the right of ‘utmost intimacy’ (‘höchstpersönlicher Lebensbereich’), for example family life, health and sexual life, corresponds with Art. 8 ECHR. In principle, all persons – including politicians, statesmen and other ‘public figures’ – are protected against unlawful public exposure through media reports, books, etc.

If the allegations made are true, under § 7, subs. 2(2) MedienG, it is of central importance whether the published facts relating to the claimant's private life are strongly connected with his/her public life. In addition, the particular behaviour and intention of the party infringing the privacy of the claimant is relevant.

Austrian courts and scholars combine these elements in a flexible way: the less the private details (e.g. conjugal disputes between the statesman and his wife) are connected with the claimant's public life and the more malicious their description, the more plausible a claim for damages even if the story is true.