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… order to receive appropriate treatment and, even, from seeking such assistance, thereby endangering their own health and, in the case of transmissible diseases, that of the community”; and that “[t]he domestic law must therefore afford appropriate safeguards to prevent any such communication or disclosure of personal health data as may be inconsistent with the guarantees in Article 8” (see Z. v. Finland, no. 22009/93, § 95, Reports 1997-I; also see Armonienė v. Lithuania, no. 36919/02, § 40, 25 November 2008). One can hardly discern anything in these doctrinal statements which would allow them to be read as applicable only to persons not acting “in their official capacity”. The Court has also held that “[t]he above considerations are especially valid as regards protection of the confidentiality of information about a person’s HIV infection”; that “[t]he disclosure of such data may dramatically affect his or her private and family life, as well as social and employment situation, by exposing him or her to opprobrium and the risk of ostracism”; that “it may also discourage persons from seeking diagnosis or treatment and thus undermine any preventive efforts by the community to contain the pandemic”; that “[t]he interests in protecting the confidentiality of such information will therefore weigh heavily in the balance in determining whether the interference was proportionate to the legitimate aim pursued”; and that “[s]uch interference cannot be compatible with Article 8 ... unless it is justified by an overriding requirement in the public interest” (see Z. v. Finland, cited above, § 96). Save the hint of the menace of a pandemic, the remainder of the cited considerations (and others not cited here) do not apply only to persons suffering from HIV or other contagious diseases, whereas the considerations as to the “affect[ing one’s] private and family life, as well as social and employment situation” and the “expos[ure of a person concerned] to opprobrium and the risk of ostracism” are equally applicable to those who have a history of mental-health problems. 16. In such a doctrinal framework, it has been rather too easy to “prove” that the applicant’s rights were “not violated”, either by the media or by the courts which stood up for the defence of that media’s freedom. But this is not the correct framework. It is clearly not in line with the Court’s case-law. 17. Most importantly, such reasoning allows for the stigmatisation of individuals with a history of mental-health problems - something that this Court should prevent and never encourage. Through this judgment, the Court itself has placed a stigma on people with a history of mental-health problems. It also has expressed its belief that mental-health problems, whatever they may have been, are there forever. Incurable. The judgment panders to prejudice. 18. To sum up, the balancing exercise in this case has been limited to “proving” that: (i) issues raised by the applicant under Article 8 are to be examined from the standpoint of Article 10; (ii) an individual’s reputation has little autonomous value and is relevant only to the extent that the possibility of damaging it may not allow, under Article 10, certain information to be imparted; (iii) the Member States enjoy a wide margin of appreciation in determining what information about the health of a person who acts in an “official capacity” can be disclosed to the public by the media; (iv) given that the applicant was a “psychological expert”, disclosure of her mental-health history, by the very virtue of her occupation, contributes to a “debate of general interest” and is, therefore, protected by Article 10. We cannot agree with such reasoning and the finding based thereon. 19. None of the above arguments should be read as denying that under certain conditions certain information about the health of certain persons in an “official capacity” may be publicly disclosed by the media (and even by other sources). Moreover, there may be circumstances when such information has to be disclosed under the domestic legislation or even a Constitution (as, for example, in cases involving the health condition of a head of state or certain other senior officials), and the Convention erects no barrier against such disclosure. But if the indiscriminate, inflexible and non-nuanced approach such as that upon which the present judgment is based prevails, any discussion of these sophisticated, non-clear-cut distinctions between different situations becomes pointless. IV 20. As already mentioned, the Chamber has addressed the issue of “the way in which the information was obtained” by the media in a somewhat limited way, because “the applicant had never argued that the medical expert report at issue had been obtained illegally” (see paragraph 44 of the judgment and § 13 above). In all probability, it was indeed not obtained illegally. Turning to the www.bailii.org/eu/cases/ECHR/2016/431.html 18/23