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… a debate of public interest; the degree of notoriety of the person affected; the subject of the news report; the prior conduct of the person concerned; the content, form and consequences of the publication; and, where appropriate, the circumstances in which the photographs were taken (in the instant case this criterion is not relevant). In the present judgment, these criteria have either not been applied (the degree of notoriety of the applicant; her prior conduct; the consequences of the publication) or been applied one-sidedly and superficially (the subject of the news report; the content and the form of the publication), thus limiting the Court’s scrutiny, in essence, to general considerations as to the analogy between the applicant, who at the material time was (and still is) a “psychological expert for court proceedings” (see paragraph 5), and “members of the judiciary” or “civil servants acting in an official capacity” (see paragraph 46). 13. The Court has also stated that “where it examines an application lodged under Article 10, it will also examine the way in which the information was obtained and its veracity, and the gravity of the penalty imposed on the journalists or publishers” (see Couderc and Hachette Filipacchi Associés v. France [GC], cited above, § 93). It appears that the transformation of the present case from an “Article 8 case” into an “Article 10 case” allowed the majority to attach special weight to “the way in which the information was obtained and its veracity��� (although the quoted excerpt from Couderc and Hachette Filipacchi Associés is not reproduced verbatim in the judgment). However, in the present case the scrutiny of “the way in which the information was obtained” is limited to ascertaining whether that information was obtained lawfully. The related question as to why it surfaced at all is not raised (see also §§ 20, 22-24 below). Thus, the majority has given particular prominence to the fact that “the particular information on the applicant’s mental health stemmed from the report of a court-appointed expert acting in public proceedings before a civil court” and that “the published facts were true” (see paragraph 43), as well to the fact that “the applicant had never argued that the medical expert report at issue had been obtained illegally” and that “the truth of the content of the article ... was undisputed [by her] in the whole proceedings” (see paragraph 44; see also paragraph 33). But the applicant did not complain that the report cited in the article was untrue. Nor did she complain about the way in which the information was obtained. What she complained about was that the Austrian courts did not secure her right of privacy, which had been breached by the publication of the relevant report in an article which suggested that her mental suffering during a difficult period of her life (which, at the time of publication was already 15 years in the past, at the time of the last domestic court judgment - 17 years in the past and today - 23 years in the past) impeded her professional skills and which was aimed at damaging her reputation. This case is not about the “truth” but about the consequences entailed by reporting of that “truth”. In such circumstances exceptio veritatis appears of little, if any, relevance for the assessment of whether a fair balance has been struck between the rights protected under Articles 8 and 10. 14. The majority has also attached particular weight to another criterion in balancing Article 10 rights against those protected under Article 8. It is not a Von Hanover criterion proper, but is an important one in cases where the impugned publication allegedly includes offensive and abusive attacks against the person concerned, such as hate speech or incitement to violence. However, this criterion is discussed in the context of the case-law dealing with criticism of politicians, civil servants and other persons “acting in their official capacity”, who are “subject to the wider limits of acceptable criticism”. The Chamber refers (in paragraph 46) to July and SARL Libération v. France (no. 20893/03, § 74, ECHR 2008 (extracts)) and (in paragraph 47) to Janowski v. Poland ([GC], no. 25716/94, § 33, ECHR 1999-I). Having done so, it concludes that “[i]n the present case ... there is no need to weigh the requirements of ... protection [of the applicant, who acted in an official capacity, from offensive and abusive verbal attacks] against the interests of the freedom of the press or of open discussion of matters of public concern, since the article under consideration did not contain offensive or abusive verbal attacks” (see paragraph 47). This reasoning is not supported either by the case-law cited or by any other part of the Court’s caselaw. Nowhere in Janowski or July and SARL Libération, and nowhere else in the Court’s case-law, is it suggested that those “acting in their official capacity” are protected against infringement of their right of privacy only if the criticism of their activities or personalities involves “offensive or abusive verbal attacks”. Nowhere. Were such a case-law in place, it would be most reprehensible. But no case-law www.bailii.org/eu/cases/ECHR/2016/431.html 16/23