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… exists which would allow one to conclude from the statement that those “acting in their official capacity” are “subject to the wider limits of acceptable criticism” that they are accordingly subject to any sort of “criticism”, provided that that criticism does not resort to “offensive or abusive verbal attacks” and thus becomes “non-acceptable”, and then to apply this tenet indiscriminately to every situation where an individual claims that his or her privacy has been infringed upon. With regard to those “acting in their official capacity”, as with regard to all other persons, Article 8 requires much more than merely their protection against “offensive and abusive verbal attacks”. In a democracy, those “acting in their official capacity” are entrusted, under the law, with that “capacity” because the community believes that they can do more for the common good than those who are not entrusted with it. There are no grounds to assert that many of them in fact do not do more than the other members of the community. Maintaining that those not acting in any “official capacity” enjoy fullfledged protection of privacy under the Convention, whereas the privacy of those who “act in their official capacity” can be intruded upon by virtually anyone and in virtually any circumstances, provided that this intrusion is executed without “offensive and abusive verbal attacks”, is an awry interpretation of the very core of the idea of democratic government. Such an interpretation has no basis in the undisputed democratic requirement of citizens’ supervision of politicians and other officials. Indeed, it turns things inside out: the idea that those whom the community has entrusted with an official function should not be rewarded with privacy incommensurable with the attention which the public may legitimately pay to their activities and their persons is distorted and downgraded to a belief that persons in an “official capacity” must be subject to a form of retribution for taking up that function whereby they enjoy virtually no privacy at all, so long as they are not verbally attacked in an “offensive and abusive” manner. By reducing the protection of the applicant’s privacy (and, if this judgment is followed in hypothetical future cases, that of other applicants “acting in their official capacity”) from interference by the media to mere protection against “offensive or abusive verbal attacks”, this judgment does a major disservice to the interpretation of Article 8, and to the methodology of interpretation of the Convention in general. 15. Paragraph 43 makes brief reference to the fact that the information in question concerned the applicant’s health, which is “an important element of private life” (the Chamber refers to S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, § 66, ECHR 2008). Then, in paragraph 45, it is stated that “a serious debate on the mental health status of a psychological expert, evoked by reasoned suspicions, has to be seen as a debate of general interest, as an expert in court proceedings is required to meet standards of physical and psychological fitness”, and that “a courtcertified psychological expert, such as the applicant, plays an important and sometimes decisive role in the decision-making process in child-care proceedings and thus strongly influences not only the fate of families but also of individuals in an early and sensitive stage of personal development”; consequently, “[i]n the eyes of the parties to the proceedings and the general public there must not be any doubts as to the mental fitness of such an expert in order to maintain public trust in the judiciary”. Here, the selectivity and off-handedness of the majority’s employment of the Court’s case-law manifests itself again - with the direst results for the applicant in this case, but also for many applicants in future cases. Such reasoning raises two open questions: (i) what information about the health of an individual who is a “psychological expert” or acts in some other “official capacity” can be disclosed by the media to the public? (ii) what are the “official capacities��� whose holders do not (fully) enjoy, under the Convention, protection against disclosure by the media of information about their health? It appears that, in determining what information about an individual’s health can be lawfully disclosed, the Member States enjoy such a wide margin of appreciation that virtually any information about anything related to the health of a person in an “official capacity” can be made public by the media, provided that that information was not obtained illegally. However, the Court was not so lenient in earlier cases. For example, in cases which involved HIVinfected persons it has held that “the protection of personal data, not least medical data, is of fundamental importance to a person’s enjoyment of his or her right to respect for private and family life as guaranteed by Article 8”; that “[r]especting the confidentiality of health data is a vital principle in the legal systems of all the Contracting Parties”; that “[i]t is crucial not only to respect the sense of privacy of a patient but also to preserve his or her confidence in the medical profession and in the health services in general”; that “[w]ithout such protection, those in need of medical assistance may be deterred from revealing such information of a personal and intimate nature as may be necessary in www.bailii.org/eu/cases/ECHR/2016/431.html 17/23