03/02/2020 FURST-PFEIFER v. AUSTRIA - 33677/10 (No violation of Article 8 - Right to respect for private and family life (Article 8-1 : Respect for priva… Germany, no. 59320/00, §§ 57, ECHR 2004-VI; Von Hannover (no. 2), cited above, §§ 98; and Söderman v. Sweden [GC], no. 5786/08, §§ 78 et seq., ECHR 2013). Moreover, Article 8 is not analysed almost anywhere else in the reasoning on the merits. Instead, the majority turns its attention to Article 10 immediately, stating that “[w]ith regard to cases in which a violation of the rights guaranteed under Article 8 is asserted and the alleged interference with those rights originates in an expression, ... the protection granted by the State should be understood as one taking into consideration its obligations under Article 10”, and that “the protection of private life has to be balanced, among other things, against the freedom of expression guaranteed by Article 10” (see paragraphs 36 and 37 respectively). Having thus paved the way for an examination under Article 10, the majority seems to ignore Article 8 as its own starting point. It goes on to deal with why this case, lodged as a “privacy case”, is primarily a “freedom of the media case”. An individual’s reputation, as something which is protected by the Convention, is mentioned twice in the judgment (in paragraphs 36 and 39), but not, however, as an autonomous value under Article 8 (compare, for example, Delfi AS v. Estonia [GC], no. 64569/09, § 137, ECHR 2015, and the case-law cited therein), but rather within the context of the second paragraph of Article 10. Thus, the reputation of the individual concerned is treated as something for which the media could not care less, unless there is (most likely ex ante) “iron” evidence that an individual’s reputation will be unwarrantably damaged by a publication. This reasoning culminates in the conclusion that, “notwithstanding the fact that the applicant claims a violation of Article 8 of the Convention, the Court has to determine whether the principles inherent to Article 10 were properly applied by the Austrian courts when deciding the applicant’s actions” (see paragraph 42). Paradoxically enough, the majority does not state that it sees the Court’s role also in determining whether the Austrian courts properly applied the principles inherent to Article 8, although even the cases referred to in paragraph 42 imply this (see Ruusunen v. Finland, no. 73579/10, § 43, 14 January 2014, and Couderc and Hachette Filipacchi Associés v. France [GC], no. 40454/07, § 93, ECHR 2015). In a similar fashion, it is emphasised that “the most careful of scrutiny under Article 10 is required where measures or sanctions imposed on the press are capable of discouraging the participation of the press in debates on matters of legitimate public concern” and that “particularly strong reasons must be provided for any measure limiting access to information which the public has the right to receive” (see paragraph 39). Nowhere in the judgment will one find it affirmed that “the most careful of scrutiny” is required also in examining whether an individual’s privacy was infringed upon or that “particularly strong reasons” must be provided for interference with it. As to the first tenet, it is redundant to some extent, because in this case no sanction was imposed on the media. Thus, the majority is of the view that the circumstances of this case call for engagement in one-sided scrutiny. Such is the methodological basis of the finding of no violation of Article 8. 11. The Court has an abundant case-law requiring that examination of whether a given State complied with its positive obligation under Article 8 to protect an individual’s privacy receives the same diligence as that given to assessing whether freedom of expression under Article 10 allowed for a publication interfering with an individual’s reputation (see, for example, Ruusunen v. Finland, cited above, § 43, and Bédat v. Switzerland [GC], cited above, §§ 73 and 74, and the case-law cited therein). However, one does not need to search for this case-law in order to state that such equal diligence is indispensable, because its obviousness commands no special argumentation. No balance between the rights protected under Article 8 and those protected under Article 10 is possible if only the latter are scrutinised and if only interference with the latter must be justified by “particularly strong reasons”, while the former are examined with less attention. There can be no fair balancing exercise if all the weight is placed on one side of the scales while the other is left almost unloaded, especially when the existing case-law contains many arguments in the latter’s favour. III 12. The balancing of rights under Article 8 against those under Article 10 necessarily involves the application of the so-called Von Hannover criteria (see, inter alia, Von Hannover (no. 2) [GC], cited above, §§ 109-13; Axel Springer AG v. Germany [GC], cited above, §§ 90-95; and Couderc and Hachette Filipacchi Associés v. France [GC], cited above, §§ 90-93). These criteria are: contribution to www.bailii.org/eu/cases/ECHR/2016/431.html 15/23