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… Criminal Proceedings was a remedy readily available and sufficient to afford redress in respect of an alleged breach of rights under Article 10 of the Convention in proceedings for compensation under section 7 of the Media Act. It found that a request under Article 363a of the Code of Criminal Proceedings constituted, in the circumstances of the case, an effective and sufficient remedy an applicant would be obliged to use. However, it transpires from the Supreme Court’s case-law (quoted in ATV Privatfernseh-GmbH (dec.), cited above, § 22), that victims of crimes and private prosecutors, as well as public prosecutors, are not entitled to this remedy. The Government has not provided evidence which would show that the availability of this remedy also extended to this group of persons. It follows that the Government’s objection with regard to the non-exhaustion of domestic remedies has to be dismissed. 32. The Court notes that the applications are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that the applications are not inadmissible on any other grounds. They must therefore be declared admissible. B. Merits 1. The parties’ submissions 33. The applicant submitted that the Austrian courts had violated their duty to protect her right to private life when dismissing her actions for compensation for the unlawful publication of matters relating to her private life. The content of an expert report about her psyche was part of her private life and not related to any public interest. The Vienna Court of Appeal as well as the Innsbruck Court of Appeal had not taken into account that the publication of a 17-year-old expert report would not fulfil a pressing social need and was of no relevance when assessing her present professional skills. The publication’s aim was not to inform the public but only to damage her reputation. Under these circumstances the publishers could not rely on their rights under Article 10 as she was not a public figure. The applicant did not argue that the expert report had been obtained unlawfully. 34. The Government argued that the Austrian courts had struck a fair balance between the competing interests under Articles 8 and 10 of the Convention within the margin of appreciation granted by the Convention. Information about the mental state of health of a court-certified expert who worked in sensitive proceedings in custody issues was a contribution to a debate of general and public interest. Issues concerning the functioning of the justice system would constitute questions of public interest and it would be the duty of the press to impart information on matters relating to the functioning of the judiciary. Because of the special role of experts in the Austrian judicial system and their influence on the courts’ decisions, not only would the activities of judges, public prosecutors or registrars constitute an issue of public life, but so would those of court-certified experts. As regards the contents of the article, its truth remained undisputed. Both Courts of Appeal had reached the conclusion that it was neither incomplete nor manipulative, but rather well-balanced, taking various aspects and views into account. Not only did the article reproduce statements and comments of representatives of public life, it also mentioned the fact that the applicant’s professional integrity had not been questioned during ten years of practice. 2. The court’s assessment 35. The Court reiterates that according to its case-law the right to reputation is an independent right guaranteed by Article 8 of the Convention which the State has a positive obligation to protect (see Karakó v. Hungary, no. 39311/05, § 18, 28 April 2009). 36. With 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 Court has already found that the protection granted by the State should be understood as one taking into consideration its obligations under Article 10 of the Convention. It is the latter provision which has been specifically designed by the drafters of the Convention to provide guidance concerning freedom of speech - also a core issue in the present application. Paragraph 2 of Article 10 recognises that freedom of speech may be restricted in order to protect reputation. In other words, the Convention itself announces that restrictions on freedom of expression are to be determined within the framework of Article 10 enshrining freedom of speech (see Karakó, cited above, § 20-21). www.bailii.org/eu/cases/ECHR/2016/431.html 7/23