30.07.2014
The Latin saying "De mortuis nil nisi bene" and morality dictate that one should not speak ill of the dead. Jurisprudence is now increasingly taking this idea into account. Close relatives have the opportunity to defend themselves against negative comments about the deceased. This is called post-mortem protection of personality. In the case of a detainee who dies in the course of an official act, the daughter has the opportunity to take action against newspaper reports in which the detainee was posthumously (inaccurately) portrayed as a drug dealer and criminal. In a decision concerning a former Carinthian governor, for example, the widow was granted standing to sue in proceedings to protect the honor and privacy of the deceased (4 Ob 112/10i). In another case, a father was able to take action against publications which claimed that his deceased son, who had previously worked as a lawyer, had "hung around" in the red-light district (4 Ob 203/13a).
Not only the honor, but also the image of the deceased is protected under Section 78 of the Copyright Act. This can be enforced by close relatives, usually the heirs. Section 77 of the Copyright Act provides information on who exactly is authorized to enforce the protection. The prerequisite for successful enforcement is that the presumed interest of the deceased in non-publication outweighs the interest of any other person in publication.