PUBLICATIONS
Implementation of the Directive on Consumer Rights | 2014
Type: Article
Published: 2014/2015 Juristische Ausbildung und Praxisvorbereitung (JAP) 40
Language: German
The article deals with the implementation of the EU Consumer Rights Directive and analyzes the amendments to the Consumer Protection Act, the Civil Code and the newly passed Act on Long-Distance Transactions.
The Right to One's Own Image After Death | 2014
Type: Article
Published: 2014 Österreichische Blätter für Gewerblichen Rechtschutz und Urheberrecht (ÖBl) 200
Language: German
The article deals with the post-mortem protection of one´s own image set out in section 78 Copyright Act and the first Supreme Court decision clarifying its application. The article argues that section 78 primarily serves to protect the interests of the deceased (preservation of memory and life image) and not the ones of the heirs.
Do Omitted Vaccinations Endanger the Best Interests of the Child? | 2015
Type: Article
Published: 2015 Zeitschrift für Familien- und Erbrecht (EF-Z) 101
Language: German
The increase in potentially fatal diseases such as measles has led to an emotionally charged debate between advocates and opponents of immunization. This article analyzes whether parents endanger the best interests of the child by refusing preventive measures such as vaccinations.
Supreme Court Decision 7 Ob 60/15x – Motion for Interim Judgment: Determination of Paternity | 2016
Type: Case Comment
Published: 2016 Evidenzblatt der Rechtsmittelentscheidungen in Österreichische Juristenzeitung (EvBl) 125
Language: German
Case comment on the possibility of a motion for interim judgment determining paternity as a preliminary question in the proceedings for recovery of paid child support by the alleged father.
Tort Liability for Post-Mortem Infringements of Personality Rights | 2017
Type: Article
Published: 2017 Juristische Blätter (JBl) 617
Language: German
The article sets out a dogmatic foundation for the post-mortem protection of personality rights and deals with the interpretation of ec. 77, 78 and 87 para 2 Copyright Act. It is argued that memory and life image left by the deceased are legally protected, so that third parties (chosen by the deceased or in default thereof the heirs themselves) can exercise the post-mortem protection in various ways.
Commentary on Sec. 552 to 572, 575 to 576 Civil Code | 2017
Type: Commentary/Chapter in Book
Published: in Großkommentar zum ABGB (Commentary on the Civil Code) (Attila Fenyves, Ferdinand Kerschner & Andreas Vonkilch eds., 3rd ed. complete rewrite, 2017) (together with Prof. Constanze Fischer-Czermak), 169 pages
Language: German
Commentary on provisions of the Civil Code on wills (characteristics, components, construction and interpretation, capacity, undue influence, mistake, validity). The commentary takes into account both the old and the new legal situation before and after the enactment of a major amendment in January 2017.
Supreme Court Decision 9 Ob 3/17g – Determination of Paternity After Death | 2017
Type: Case Comment
Published: 2017 Evidenzblatt der Rechtsmittelentscheidungen in Österreichische Juristenzeitung (EvBl) 915
Language: German
Case comment on the possibility of a determination of paternity after the death of the alleged father and the duty to co-operate of his relatives pursuant to sec. 85 of the Statute on Non-Adversarial Proceedings.
The Distinction Between Superaedificia and Standalone Components | 2018
Type: Article
Published: 2018 immolex 10 (together with Gernot Wilfling)
Language: German
The article analyzes the case law on the term “building” in the context of property law and so-called superaedificia (buildings on land owned by third parties). Another part is devoted to the question on how superaedifica can be used as a collateral.
Written Diploma Exam: Private Law | 2018
Type: Didactic Article
Published: 2017/2018 Juristische Ausbildung und Praxisvorbereitung (JAP) 171
Language: German
Written diploma exam on private law, held at the Faculty of Law of the University of Vienna in April 2016 with a focus on property and the law of succession including a sample solution.
Post-Mortem Protection of Personality Rights | 2018
Diese Monographie untersucht umfassend Rechtsfragen zum postmortalen Schutz von Persönlichkeitsrechten. Neben einem historischen Rückblick und der Analyse bisher dazu ergangener Entscheidungen werden Schutzzweck, dogmatische Begründung, Umfang, Aktivlegitimation, Schutzdauer und Rechtsfolgen behandelt. Ausgehend von den §§ 77,78 UrhG wird vertreten, dass Verstorbene ihr Lebensbild bzw Andenken als eigenes, geschütztes Rechtsgut hinterlassen. Der Verstorbene hat ein lebzeitiges, zukünftiges Interesse an dessen Schutz, den Dritte für ihn wahrnehmen können. Gleichzeitig haben dem Verstorbenen nahestehende Personen ein eigenes persönlichkeitsrechtlich geschütztes Interesse an der Bewahrung von dessen Andenken. Angehörige können daher auch Schadenersatzansprüche bei Verletzungen des Andenkens geltend machen. Fragen zum „digitalen Nachlass“, zB die Vererblichkeit von Facebook-Konten, werden ebenfalls behandelt.
Commentary on Sec. 81 to 85 AußStrG | 2019
Type: Commentary/Book Chapter
Published: in Kommentar zum AußStrG (Commentary on the AußStrG) (Birgit Schneider, Stephan Verweijen eds., 2019)
Language: German
Commentary on the procedural provisions of the law of descent in the AußStrG dealing with the acknowledgment of paternity, special procedural provisions, legal standing, reimbursement of costs, duties to cooperate, proof of paternity).
Authors’ Moral Rights after Death | 2019
Type: Article
Published: 2019 Gewerblicher Rechtsschutz und Urheberrecht (GRUR) 476
Language: German
Dealing with the monistic model of copyright in German law, Austrian law and the Revised Berne Convention, the article analyzes the consequences of the particularities of moral rights after the death of the author. It is argued that the legal successors of the author are bound by the interests of the deceased. In addition, it is shown that the protection of moral rights can be asserted during the entire term of copyright protection.
Authors’ Moral Rights after Death | 2019
Type: Article
Published: 2019 University of Vienna Law Review (VLR) 1
Language: English
Dealing with the monistic model of copyright in German law, Austrian law and the Revised Berne Convention, the article analyzes the consequences of the particularities of moral rights after the death of the author. It is argued that the legal successors of the author are bound by the interests of the deceased. In addition, it is shown that the protection of moral rights can be asserted during the entire term of copyright protection. This article is an extended version of publication no. 18. One of the additions includes a comparative view on the U.S. Visual Artists Rights Act.
Introduction to Private Law | 2019
Type: Chapter in Casebook
Published: Österreich Casebook (Austrian Casebook on Private Law) (Stefan Perner, Martin Spitzer & Georg Kodek eds., 2nd ed. complete rewrite, 2019)
Language: German
25 cases introducing students to private law (terms and definitions, methodology, private law subjects) including a sample solution and didactic comments based on recent decisions of the Supreme Court. The cases deal, among other things, with the distinction between private law and public law, the methods of statutory interpretation, personality rights and legal capacity.
Inheritability of Digital Content under Austrian Law | 2019
Type: Article
Published: 2019 European Review of Private Law (ERPL) 1115
Language: English
The German Supreme Court (Bundesgerichtshof) recently decided that a Facebook account is inheritable (BGH III ZR 183/17). This article examines how Austrian law would deal with this issue and concludes that the result would be identical. Social media or email accounts are inheritable since an heir can take the deceased’s place without changing the performance provided to the user. Telecommunications and data protection law does not prevent the heirs’ access either because they replace the deceased. Prior agreements between service providers and the deceased may also limit access and should be carefully scrutinized, but not hastily dismissed as void.
Reprinted from European Review of Private Law, volume no. 27, issue number 5, (2019), pp. 1115 – 1129, with permission of Kluwer Law International.
The Artist's Name | 2020
Type: Book Chapter
Published: in Handbuch Kunstrecht (Handbook on Art Law) 151 (Alexandra Pfeffer & Roman Alexander Rauter eds., 2020)
Language: German
The book chapter examines the legal nature of the artist’s name. It deals with its acquisition and loss, the rules of naming, various possibilities of use in a legal context and especially the protection of the artist’s name against unauthorized use as well as from the perspective of trademark, copyright, competition and unjust enrichment law.
Supreme Court Decision 5 Ob 145/19p – Land Register, Power of Attorney and Dementia | 2020
Type: Case Comment
Published: 2020 Evidenzblatt der Rechtsmittelentscheidungen in Österreichische Juristenzeitung (EvBl) 316
Language: German
Case comment on the Land Registry Court’s reservations regarding the legal capacity of the party granting a power of attorney due to the proximity of the establishment of the power of attorney to the occurrence of dementia (Sections 32, 94 Land Register Act; Section 865 Civil Code).
Law of Parentage | 2020
Type: Chapter in Book
Published: in Handbuch Familienrecht (Handbook on Family Law) 231-292 (Astrid Deixler-Hübner ed., 2nd edition 2020)
Language: German
Analysis and systematic illustration of the law of parentage of the Civil Code and related provisions. The revised, second edition, takes into account the latest legal developments, e.g. same-sex marriage.
Privacy and Inheritance Law | 2020
Type: Article
Published: 2020 Österreichische Notariatszeitung (NZ) 281
Language: German
Since inheritance law does not take into account the testators privacy, he or she must act in advance. The article examines the possibilites the law has to offer for protecting the testators privacy, even against his heirs. The article also deals with questions regarding the so-called “digital estate” and concludes that questions regarding digital assets, access to digital content, etc. are not to be treated differently.
The Cease-and-Desist Procedure of Section 549 ZPO | 2021
Type: Article
Published: 2021 Medien und Recht (MR) 27
Language: German
With Section 549 of the Code of Civil Procedure (ZPO), the legislator created a new procedural tool – a specifically tailored cease-and-desist procedure – for the rapid elimination of serious violations of personality rights in electronic communications networks, especially on the Internet. This article discusses the prerequisites for the applicability of the new procedure and for the non-appealable provisional enforceability of a cease-and-desist order. Furthermore, the procedural position of the parties, in particular their right to be heard, is discussed critically.
Limitations of Automated Enforcement of Personality Rights Violations | 2021
Type: Book Chapter
Published: in Intelligente Systeme – Intelligentes Recht (Intelligent Systems – Intelligent Law) 133-155 (Linda Kuschel, Sven Asmussen, Sebastian Golla eds., 2021)
Language: German
This chapter analyzes the decision C-18/18 of the ECJ and its impact on injunctions resulting from infringements of personality rights on the internet. I argue, for example, that the ECJ did not ban autonomous assessment with regard to Article 15 Directive on electronic commerce. The standard to be followed is “no general obligation to monitor” and not, like the decision might suggest, “no autonomous assessment”. One way to implement the ECJ´s decision is that content filtered by duplicate-detection and Boolean operators triggers a specific (and therefore permissible) obligation to monitor and review the filtered content once it surpasses a certain threshold. The problem here is not so much finding all of the illegal content, but the risk of overblocking at the expense of other platform users. In addition, Article 14 Directive on electronic commerce is to be understood to the effect that an immediate reaction by the host provider does not exclude an obligation to prevent future violations.
Risk Assessment in the Dissemination of Images and Information | 2021
Type: Article
Published: 2021 Medien und Recht (MR) 122
Language: German
The dissemination or publication of images or information about a person may result in danger to that person’s life, health or physical safety, or at least in the threat of serious harassment. An interest in security and anonymity can thus be a decisive factor in the balancing of interests under personality rights law. This article discusses the relevant criteria with regard to data protection law, media law and personality rights law.
Misnormer and the Corporation Trap | 2021
Type: Article
Published: 2021 Grauzonen – Unternehmen im Recht (GRAU) 94 (together with Wilhelm Milchrahm)
Language: German
Companies often refer to joint activities simply as “cooperation” or conclude a “cooperation agreement”, thereby unknowingly and unintentionally entering into a partnership agreement. Applicable then are a number of legal provisions which, in case of conflict, are not suitable for the specific constellations. The article shows strategies for avoiding such problems as well as how to deal with consequential problems.
Standing to be Sued - Violations of Personality Rights on the Internet | 2021
Type: Article
Published: 2021 Zeitschrift für Informationsrecht (ZIIR) 292
Language: German
This article discusses the persons liable for violations of personality rights on the Internet and their obligations to cooperate in the investigation of unknown perpetrators. It is argued that, unlike in the past, IP addresses must also be handed over for the purpose of investigation.
Commentary on Sec. 81 to 131 Marriage Act | 2021
Type: Commentary/Chapter in Book
Published: in Kommentar zum ABGB (Commentary on the Civil Code) (Peter Rummel, Meinhard Lukas eds., 4th ed., 2021) (together with Johannes Stabentheiner), 153 pages (extensive revision and expansion of the previous edition, which was authored solely by Johannes Stabentheiner, by about 80 pages)
Language: German
Commentary on Sec. 81 et seq. Marriage Act on the division of marital property and marital savings after divorce or annulment of marriage. In addition to a comprehensive and critical analysis of case law and doctrine, the commentary also offers new solutions to problems arising from pre- and post-nuptial agreements (sec. 97) as well as comments on legal policy.
COVID-19 Vaccination of Minors | 2022
Type: Article
Published: 2022 Zeitschrift für Familien- und Erbrecht (EF-Z) 5
Language: German
Since the approval of the first vaccine against COVID-19 for children aged five years and older, the question has arisen as to what rights and obligations parents have. Disagreement about the vaccination leads to conflicts within the family, especially in the case of separated parents. The article discusses the legal situation and substantiates the partly very general provisions of the law of parent and child.
The Right of Reply - Foundations and Digitization | 2022
Type: Article
Published: 2022 Juristische Blätter (JBl) 702 (part 1); 788 (part 2)
Language: German
Two-part article on the right of reply, ranging from 19th-century foundations to current issues of digitization. The article discusses case law and essential concepts of the right of reply, addresses technical evasion attempts, and finally proposes a new instrument to increase the effectiveness of protection with the so-called principle of proximity.
The Investment of Wards' Money - Need for Reform | 2023
Type: Article
Published: 2023 BankArchiv (ÖBA) 255
Language: German
Although Sections 215 et. seq. ABGB (Civil Code) contain a catalog of forms suitable for the investment of wards‘ money, the legal mandate to invest wards‘ money securely and as fruitfully as possible can only be fulfilled with difficulty or not at all. Contrary to the legislator‘s intentions, legal options that would expand the guardian‘s leeway are not used at all. This article discusses the genesis, status quo and need for reform of the regulation of ward‘s money.
Unjust Enrichment and Personality Rights | 2023
This book looks at unjust enrichment law from a personality rights perspective for the first time and also addresses general questions regarding the interpretation of Sec. 1041 ABGB, particularly with regard to the treatment of disingenuous acts. The character of personality rights (right of publicity) as property rights and their use within the meaning of Section 1041 ABGB are discussed on almost 170 pages. It is highlighted that any unlawful interference with personality rights triggers a claim pursuant to Section 1041 ABGB if this results in a benefit that can be measured in money. Disingenuous actors not only have to pay an appropriate usage fee, but also has to hand over the profits.
Introduction to Private Law | 2023
Type: Chapter in Casebook
Published: Österreich Casebook (Austrian Casebook on Private Law) (Stefan Perner, Martin Spitzer & Georg Kodek eds., 3rd ed., 2023)
Language: German
31 cases introducing students to private law (terms and definitions, methodology, private law subjects) including a sample solution and didactic comments based on recent decisions of the Supreme Court. The cases deal, among other things, with the distinction between private law and public law, the methods of statutory interpretation, personality rights and legal capacity.
Ambiguity in Law Teaching | 2023
Type: Book Chapter
Published in: Exzellenz in Rechtswissenschaft und Rechtsdidaktik (Excellence in Jurisprudence and Legal Teaching) 133-155 (Patrick Warto, Ines Deibl, Hermann Astleitner, Jörg Zumbach eds., 2023)
Language: German
This book chapter introduces a concept in law education that aims to train students in how to deal with ambiguity and strengthen their reasoning skills. The concept consciously moves away from dichotomy between right and wrong solutions and uses real case templates to focus on the justifiability of the argument from different perspectives.