Definition and Legal Significance of Diary Entries
Diary entries are written or digital records of private thoughts, experiences, or information of a natural person, which are created regularly or on specific occasions. Legally, diary entries fall under various areas of protection, shaped in particular by personal rights, data protection law, copyright law, and procedural provisions.
Protection under General Personal Rights
Constitutional Framework
The general personal right, enshrined in Article 2(1) in conjunction with Article 1(1) of the Basic Law (GG), protects the privacy and personal development of individuals. Diary entries, which typically contain highly personal information, are comprehensively assigned to this area of protection. The Federal Constitutional Court has repeatedly determined that especially written expressions of private thoughts and feelings enjoy particularly high protection.
Consequences of Interferences and Publication
Intrusions into the confidentiality of diary entries, such as unauthorized reading, copying, or publishing such content, regularly constitute a serious violation of personal rights. Such actions may result in both civil claims for injunctive relief and damages, as well as criminal consequences.
Aspects of Data Protection Law
Protection within the GDPR Framework
As soon as diary entries contain personal data and are processed digitally, the General Data Protection Regulation (GDPR) applies. What matters here is both the identifiability of the individuals concerned and the form and purpose of processing. However, in a purely private context, the GDPR does not apply pursuant to Art. 2(2)(c). If the entries are stored online, shared, or published on platforms, extensive data protection obligations may arise.
Special Protection Mechanisms
The sharing, publication, or other processing of diary entries that concern third parties is also impermissible under national data protection law, such as the Federal Data Protection Act (BDSG), unless there is consent or a statutory legal basis.
Copyright Protection of Diary Entries
Works of Personal Intellectual Creation
Diary entries may be protected as literary works under the Copyright Act (UrhG) according to § 2(1) No. 1 UrhG, provided they constitute a personal intellectual creation. Protection arises regardless of publication and already from the creation of the work. However, non-literary, purely simple entries do not enjoy copyright protection.
Rights of the Author
The author has moral rights (including the right to recognition of authorship and the right of first publication) as well as exploitation rights (reproduction, distribution, publication). In cases of copyright infringement—such as unauthorized use or publication—the author is entitled to claims for injunctive relief, damages, and, where applicable, destruction of unauthorized copies.
Procedural Treatment of Diary Entries
Admissibility of Evidence in Civil and Criminal Proceedings
Diary entries may serve as evidence in civil or criminal proceedings under certain conditions. Admissibility largely depends on whether and to what extent protected personal areas are affected. The court must weigh in each individual case whether the interests of the party introducing the evidence in its use outweigh the right to personal protection, or vice versa.
Example: Civil Proceedings
In family law, diary entries may, for example, be submitted as evidence of circumstances such as unequal treatment, violence, or similar matters. However, their use is subject to strict requirements, particularly when the legitimate interests of third parties or minor participants are affected.
Example: Criminal Proceedings
In criminal proceedings, the admissibility of diary entries is also highly restricted. According to case law, in cases where diaries are seized without the knowledge or consent of the author, a particular balancing of interests is required. Disproportionate intrusions may result in a prohibition of evidence.
Protection in the Event of Theft, Loss, and Publication
Civil and Criminal Claims for Unauthorized Use
If a diary is stolen, lost, or published without permission, claims for return, injunctive relief, and damages may arise. According to § 202 StGB (Violation of the Most Personal Sphere of Life through Image Recordings and through Unauthorized Disclosure of Diary Entries), criminal liability may also exist.
Liability of Internet Platforms
If digital diary entries are unlawfully published on the internet, not only the direct publishers but also the operators of internet platforms may be held liable if they are aware of it. The key provisions here are those of the Telemedia Act (TMG) and the Network Enforcement Act (NetzDG).
Special Provisions and Practical Examples
Minors as Authors
Entries by minors are also fully protected by personal rights. Parents are generally not permitted to read their children’s private diaries unless there is an overriding educational interest, and the child’s age and personal maturity demand their own privacy.
Diary Entries of Deceased Persons
The protection of diary entries does not necessarily end with the death of the author. Relatives may, where applicable, take action against unauthorized use or publication via posthumous personal rights or copyright.
Summary
Diary entries are comprehensively protected by various areas of law. They enjoy protection under personal rights, data protection regulations, copyright, and procedural rules. Unauthorized use or publication can have civil, criminal, and data protection consequences. The special need for protection of diary entries is recognized strictly by courts and is supported by specific statutory provisions.
Literature and Further References
- Federal Constitutional Court, Decision of 15.12.1999, Ref. 1 BvR 653/96
- §§ 823, 1004 BGB (Protection of Personal Rights)
- § 2 UrhG (Protection of Literary Works)
- Art. 2 para. 1, Art. 1 para. 1 GG (General Personal Rights)
- General Data Protection Regulation (GDPR)
- § 202 StGB (Violation of the Most Personal Sphere of Life)
Frequently Asked Questions
Are diary entries admissible as evidence in court?
Diary entries can generally be used as evidence in civil and criminal proceedings; however, their probative value and admissibility must be assessed on a case-by-case basis. Formally, they are classified as so-called ‘private documents.’ Under § 416 ZPO (Code of Civil Procedure), only proof is established that the entries were made by the issuer, not that their contents are true. In criminal proceedings, according to § 249 StPO (Criminal Procedure Code): Submitted diaries can be used as documentary evidence, as long as there are no legitimate objections to their use, such as rights to refuse testimony or general personal rights. Diary entries can also contribute to the acquittal or conviction of parties or defendants, but their objective evidential value must be critically reviewed on the basis of additional indications.
Who has access rights to another person’s diary in criminal investigations?
In criminal investigations, access rights to diaries in Germany are governed by the regulations on seizure and search. Diaries are fundamentally protected as personal records; however, they can be secured or seized by the police or public prosecutor (§§ 94 ff. StPO) if required as evidence for the investigation of crimes. Special protection applies to diaries entrusted to groups bound by confidentiality (e.g., doctors, psychologists). Furthermore, under certain conditions, an accused person may object to the seizure of their own diary entries if their evaluation would violate the right against self-incrimination.
Can diary entries be published under personal rights law?
Publishing someone else’s diary entries affects the right to informational self-determination and general personal rights pursuant to Art. 2 para. 1 in conjunction with Art. 1 para. 1 GG (German Basic Law). Therefore, publication is generally prohibited unless explicit, written consent of the author is obtained or there is an overriding public interest. An exception may only exist if publication is unavoidable to protect higher legal interests. Violations may result in civil and criminal consequences, such as injunctive relief, damages, or compensation for pain and suffering.
Are diary entries subject to special archiving requirements?
There is no general legal obligation to archive privately kept diary entries. The situation is different in business or official contexts (e.g., in therapy records or mandatory reporting), if the entries form part of business documents or medical records. In such cases, the relevant retention provisions apply (e.g. § 257 HGB, § 147 AO, § 630f BGB), which specify how long and in what form these documents must be retained.
What criminal consequences threaten in the case of theft or publication of someone else’s diary?
Unauthorized access to someone else’s diary fulfills the criminal offense of theft (§ 242 StGB) or, in the case of digital diaries, data handling or data espionage (§ 202a StGB). Unauthorized publication can also constitute a violation of the most personal sphere of life by images (§ 201a StGB), a violation of the confidentiality of the spoken word (§ 201 StGB), or a violation of the confidentiality of correspondence (§ 202 StGB). In addition to criminal sanctions, civil consequences may also ensue, such as claims for compensation for pain and suffering or injunctive relief.
Can heirs demand access to the diary entries of deceased persons?
Upon the death of the author, diary entries are transferred to the heirs as part of universal succession (§ 1922 BGB). Nevertheless, posthumous personal rights must be taken into account. This means that the heirs are fundamentally entitled to decide how to use the entries, but must respect the expressed or presumed wishes of the deceased. Publication without consideration for the deceased’s privacy may be impermissible even after death.
Are digital diary entries especially worthy of protection?
Digital diary entries are subject to the same legal protections as analog entries, but receive additional safeguarding through data protection law (especially the GDPR), provided that personal data are processed. Requirements for data security, purpose limitation, and rights such as the right to erasure apply. Access without consent or legal basis regularly constitutes a data protection violation and may result in fines or civil claims.
