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… “B. Relevant international law and practice 37. In its Resolution 1729 (2010) on the protection of “whistle-blowers” the Parliamentary Assembly of the Council of Europe stressed the importance of “whistle-blowing” - concerned individuals sounding the alarm in order to stop wrongdoings that place fellow human beings at risk - as an opportunity to strengthen accountability, and bolster the fight against corruption and mismanagement, both in the public and private sectors. It invited all member States to review their legislation concerning the protection of “whistle-blowers”, keeping in mind the following guiding principles: 6.1.1. the definition of protected disclosures shall include all bona fide warnings against various types of unlawful acts, including all serious human rights violations which affect or threaten the life, health, liberty and any other legitimate interests of individuals as subjects of public administration or taxpayers, or as shareholders, employees or customers of private companies; ... 6.2.4. Any whistle-blower shall be considered as having acted in good faith provided he or she had reasonable grounds to believe that the information disclosed was true, even if it later turns out that this was not the case, and provided he or she did not pursue any unlawful or unethical objectives.” (emphasis added.)” 7. Austria does not have specific legislation concerning “whistle-blowers”. Nonetheless, the situation in the case at hand is perfectly subsumable to the following provision in the above-cited softlaw recommendations: “6.2.3. Where internal channels either do not exist, have not functioned properly or could reasonably be expected not to function properly given the nature of the problem raised by the whistle-blower, external whistle-blowing, including through the media, should likewise be protected.” 8. For analogous reasons, section 7 (2) (ii) of the Media Act provides that a plaintiff’s claim for compensation for the damage sustained from the actions of a media proprietor (publisher) cannot be granted where “the statements published are true and are directly related to public life...” 9. This is the well-known exception where a defendant may show, through the test of veracity, that what he or she was publishing is related to public life and that it is true. Yet the purpose of this provision, as pointed out above, is exactly the same as the proviso excepting “whistle-blowers” from various sanctions - on the ground of undisputed public interest. Again, since “whistle-blower” legislation does not exist in Austria, the above citation from section 7 of the Media Act provides a direct path to a similar outcome. The application of this section 7 (2) (ii) Media Act test is therefore acceptable. 10. The next question refers to the applicant’s affirmation that the publication of a 17-year-old expert report on her mental health was outdated and of no relevance in assessing her current professional skills. Consequently, the aim of the publication was not to inform the public but only to damage her reputation. Moreover, she claimed that, for these reasons, the publishers could not rely on their rights under Article 10, given that she was not a public figure. 11. To be a court-appointed expert is obviously to be a public figure. Further, in view of the wellbalanced text in question, the aim of publication was certainly not to damage the applicant’s reputation. Moreover, in the Continental legal systems experts are appointed by the court: in other words, they are not chosen by the parties. Where a judge does not have the requisite specialised knowledge, in this case psychological knowledge concerning, inter alia, custody cases, he or she will appoint an expert from the roster. An expert witness does not testify only to the facts, as is the case with ordinary witnesses. He or she testifies about the facts, as he or she has established them, and is also bound to give his or her opinion on the same facts. Given that those facts and that opinion overlap to the point of being consubstantial, a judge is rarely in a position to question the expertise of the court-appointed expert. Consequently, a case will often depend primarily on the expert’s opinion. 12. The remaining issue in this context is whether or not a 17-year-old expert report is relevant. In the case of Scozzari and Giunta v. Italy ([GC], nos. 39221/98 and 41963/98, ECHR 2000-VIII) the Court took the position that the children should not have been entrusted to foster care in the “Fortetto” home near Florence on account of the fact that one of the managers of that foster home had previously been diagnosed as a paedophile. The whole case hinged on this established fact, yet the diagnosis of paedophilia was at that time already 20 years old. For this reason, one cannot a priori maintain that a long-standing psychiatric diagnosis was not relevant. Of course, much depends on the nature of the www.bailii.org/eu/cases/ECHR/2016/431.html 11/23