Term and Definition: Diary in the Legal Context
In general parlance, a diary describes a regularly maintained, written record of personal experiences, thoughts, or observations. From a legal perspective, the term includes both privately kept diaries and records kept in professional or official contexts. In a broader sense, the term also covers certain official and business journals that serve as evidence of specific transactions. The legal relevance of a diary particularly extends to issues regarding the protection of privacy, evidentiary function, copyright, as well as archiving and destruction.
Legal Protection of the Diary
Privacy and Personal Rights
The private diary falls under the protection of the general right of personality according to Article 2(1) in conjunction with Article 1(1) of the Basic Law (GG). Personal lifestyle and the development of one’s personality explicitly include the right to confidentiality of private records such as diaries. Unauthorized access, publication, or exploitation of private diaries may constitute an infringement of personal rights and trigger claims for injunction, removal, and possibly damages.
Prohibition of Publication without Consent
Pursuant to § 22 Copyright Act on Works of Art and Photography (KUG) as well as §§ 823, 1004 of the German Civil Code (BGB), publishing content from a private diary without the author’s consent is generally inadmissible. This also applies after their death, provided that protected interests prevail; see also protection of post-mortem personal rights.
Protection of the Diary under Criminal Law
Unauthorized access to a private diary may, under certain circumstances, constitute a criminal offense. These include:
- Violation of highly personal life sphere through the taking of pictures (§ 201a StGB): Although this provision primarily refers to images, the distribution of written content may be prosecuted analogously within the framework of the general right of personality.
- Violation of the confidentiality of the spoken word (§ 201 StGB): The publication of written communications can also constitute a criminal act if it is directed against the protection of secrets.
Civil Law Claims
Unauthorized access to a diary may give rise to claims for injunction and damages. This applies, for example, to the publication of diary excerpts without the consent of the affected person or their heirs. Court decisions regularly weigh the balance between public interests and the need to protect the affected individual.
Diary as Evidence
Evidentiary Function in Civil Proceedings
A diary may serve as evidence in judicial proceedings. Private records are, however, considered documents within the meaning of § 416 of the Code of Civil Procedure (ZPO) only if they originate from their author and contain a declaration of thought. They are assessed according to the principles of free evaluation of evidence (§ 286 ZPO). The court decides, based on the overall content, whether and to what extent it finds the diary credible.
Self-Disclosures as Party Pleadings
If it is a diary kept personally and not intended for third parties, its content can acquire special evidentiary value as a so-called self-disclosure. Nevertheless, it does not replace an examination of parties or witnesses.
Use in Criminal Proceedings
A diary may also serve as evidence in criminal proceedings, particularly as a document according to § 249 of the Code of Criminal Procedure (StPO). However, its assessment as credible evidence must be critically examined, taking into account any personal interests and the possibility of alterations to entries.
Seizure and Search
As part of criminal procedural measures, a diary may be seized or searched. However, this is restricted under § 97 StPO, especially if there is a special relationship of trust with a witness from a protected professional group (e.g., clergy, legal counsel). Generally, the search or securing of private diaries is only permissible if there is a particular public interest and the principle of proportionality is observed.
Copyright Protection of a Diary
A diary enjoys copyright protection as a literary work under § 2(1) No. 1 of the Copyright Act (UrhG) if it constitutes a personal intellectual creation. Simple everyday records may not be considered as works, whereas entries with literary design or reflection fall under the protection of the UrhG.
Rights of Use and Exploitation
The author, i.e., the writer of the diary, holds the exclusive rights of use to their work. Publication, reproduction, or editing generally require their consent. After their death, these rights transfer to the heirs.
Official and Business Diaries
Official Diaries and Protocols
In official and business contexts, records referred to as diaries (e.g., construction log, logbook) are kept to document events and measures in a verifiable way. Their legal requirements arise from internal regulations, special legislation, or industry-specific rules. Such records can serve as documents, business records, or evidence, with obligations regarding diligence, retention periods, and integrity requirements to be observed.
Retention, Archiving, and Destruction
Official or business diaries are subject, among others, to retention obligations pursuant to the Commercial Code (HGB), Fiscal Code (AO), or special statutory provisions. Violations of retention and archiving duties may constitute administrative offenses or criminal acts.
Particularities of Digital Diaries
Data Protection and Data Security
Electronically kept diaries are subject to specific requirements regarding data protection and data security. The processing of personal data requires a legal basis according to the General Data Protection Regulation (GDPR). Unauthorized access, storage, or processing of personal entries may give rise to claims under data protection law, particularly for erasure or information.
Evidentiary Security and Integrity
For digital diaries to be recognized as evidence, authenticity and integrity must be ensured, for example through time stamps, digital signatures, or other technical measures. Subsequent manipulations must be excluded to preserve evidentiary value in court.
Inheritance and Estate
A diary may become part of an estate. In principle, copyright usage rights and ownership of the physical diary pass to the heirs upon inheritance. Nevertheless, when publishing, particular attention must be paid to the post-mortem personal rights of the deceased and the legitimate interests of third parties.
Bibliography and Further Regulations
- Basic Law for the Federal Republic of Germany (GG)
- German Civil Code (BGB)
- Criminal Code (StGB)
- Copyright Act on Works of Art and Photography (KUG)
- Code of Civil Procedure (ZPO)
- Code of Criminal Procedure (StPO)
- Copyright Act (UrhG)
- Commercial Code (HGB)
- Fiscal Code (AO)
- General Data Protection Regulation (GDPR)
In summary the diary is a largely protected, personal document with a wide range of legal implications. The legal framework extends from the protection of privacy to copyright and data protection, as well as evidentiary value and obligations in business or official contexts. A comprehensive understanding of the respective legal dimension is essential for handling and evaluating a diary.
Frequently Asked Questions
Who legally owns a diary?
A diary privately written by an individual is legally considered their personal property. The content of the diary is protected by copyright as a “personal intellectual creation” (§ 2(1) UrhG), provided it meets certain requirements of originality and individuality. This copyright belongs exclusively to the author. In physical terms (that is, the book itself), the diary belongs to the person who purchased it or otherwise lawfully acquired it, unless there is evidence of a different transfer of ownership. Under German law, it should be noted for minors that parents or guardians have certain supervisory and inspection rights, which are, however, severely restricted by the right to informational self-determination (Art. 2 GG in conjunction with Art. 1 GG) and postal secrecy.
May another person read a diary without permission?
The unauthorized reading of a diary fundamentally constitutes an infringement of the author’s general right of personality and their right to informational self-determination. Under § 202 StGB, the unauthorized obtaining of “data not intended for knowledge” is also a criminal offense (“data espionage”), provided the diary is protected by access controls (a lock, etc.). Even without additional security measures, unauthorized reading may result in civil claims for injunction and possibly damages. In particularly serious cases (e.g., publication of content), claims for non-material damages or compensation for pain and suffering may also arise.
How are diary entries to be treated from a legal perspective in a case of inheritance?
In the event of death, both ownership of the diary and the copyright usage rights generally pass to the heirs (§ 1922 BGB). The heirs may theoretically dispose of the diary. However, this often conflicts with post-mortem personality rights, especially regarding the publication of intimate diary entries. Post-mortem personality rights also protect the honor and personal dignity of the author after death. Therefore, publication by heirs is only permissible if these rights are not infringed or there is explicit consent (e.g., in a will).
Can the content of a diary be used as evidence in court?
Diary entries can, in principle, serve as evidence, particularly as private documents pursuant to § 416 ZPO. However, they are subject to strict scrutiny with regard to authenticity and evidentiary value. Accordingly, entries — provided they are personally written and dated — may provide circumstantial evidence for specific events but are not absolute proof. Furthermore, personal and intimate entries are especially to be considered under the general right of personality, necessitating a balancing of interests in court proceedings. The protection of private data (e.g., § 203 StGB regarding professional secrecy) and the right to refuse testimony can also restrict their use.
Is it legally permissible to publish excerpts from someone else’s diary?
The publication of third-party diary entries is fundamentally unlawful without the explicit consent of the author (§ 12 UrhG). Such publications violate copyright and personal rights regulations. They may also give rise to claims for injunction, removal, and damages under §§ 823, 1004 BGB as well as criminal law protection under §§ 201, 202 StGB. An exception only exists if the author consents or the copyright protection period has expired (70 years after the author’s death, § 64 UrhG). Even in such cases, the personal rights of depicted persons must still be observed.
What rights do parents have over the diaries of their minor children?
Within the scope of parental custody (§§ 1626 et seq. BGB), parents are generally entitled to access their child’s personal belongings, but a diary concerns a particularly protected area of privacy. The Federal Constitutional Court has held that diaries fall under the secrecy of correspondence and telecommunications, and thus may only be read in exceptional circumstances. The protection of the child’s personality and the right to personal development generally outweigh parental rights of control, so access is normally permissible only when there is a concrete suspicion of danger.
Can the contents of a diary be permanently deleted or destroyed?
The decision to destroy a diary or its contents is reserved exclusively for the author or owner. After the author’s death, this right passes to the heirs. Destruction by third parties without the consent of the entitled person may constitute a violation of property and personal rights and may result in liability for damages under § 823 BGB. Public archives handle the destruction of personal estates according to the principles of archival law, whereby permanent archiving is usually reserved for the public interest and deletion must comply with the rights holder’s wishes.
