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… “[R]eputation has only been deemed to be an independent right sporadically and mostly when the factual allegations were of such a seriously offensive nature that their publication had an inevitable direct effect on the applicant’s private life” [and that] “the purported conflict between Articles 8 and 10 of the Convention, as argued by the applicant, in matters of protection of reputation, is one of appearance only. To hold otherwise would result in a situation where - if both reputation and freedom of expression are at stake - the outcome of the Court’s scrutiny would be determined by whichever of the supposedly competing provisions was invoked by an applicant.” However Polanco Torres, which was decided by a different Chamber than Karakó, attempts to connect the judgments in Chauvy and Others v. France (no. 64915/01, ECHR 2004-VI), Pfeifer v. Austria (no. 12556/03, 15 November 2007) and Karakó in a logical manner. Nonetheless, it then makes the bridge to Karakó by stating (in § 40): “However, the factual allegations must be sufficiently serious and their publication must directly affect the private life of the person concerned. In order for Article 8 to be engaged, a publication liable to tarnish a person’s reputation must constitute an interference with that individual’s private life of such gravity that his or her personal integrity is compromised.” The Court here introduces a threshold requirement for Article 8 to actually apply: Article 8 only comes into play if the publication constitutes a direct attack on a person’s private life of such gravity as to compromise his or her personal integrity. The crucial element here is the reference to personal integrity. In our opinion, it is clear that even by the lower criteria of personal integrity, the applicant’s right of reputation was not respected. In an era when the shift of medical records from paper to electronic formats has increased the potential for individuals to access, use, and disclose sensitive personal health data, it is important that the Court establish safeguards regarding the right to privacy. In this particular case it is clear to us that there was a disproportionate interference with the applicant’s right to privacy and, therefore, a violation of Article 8. [1] See B.M. Zupančič, On Rights and On Privileges, Boston University International Law Journal (to appear in 2016). BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII URL: http://www.bailii.org/eu/cases/ECHR/2016/431.html www.bailii.org/eu/cases/ECHR/2016/431.html 23/23