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… 1. This judgment has several major flaws. Firstly, the assurance that “the rights guaranteed by [the] provisions [of Articles 8 and 10 of the Convention] deserve equal respect” (see paragraph 38 of the judgment), seems to be but a dead letter. The judgment is structured and reasoned in such a way that Article 10 is given pre-eminence over Article 8. Secondly, the Court’s case-law is applied selectively and offhandedly. Important elements thereof, pertaining to the heart of respect for privacy, are suppressed, whereas those related to the freedom of the media are emphasised. Thirdly, the reasoning is based on misrepresentation and misinterpretation of the facts. Some pertinent facts are passed over in silence, and certain important factual questions are not raised at all. Had they been raised explicitly and objectively, the overall finding could scarcely have been the same. Combined together, these flaws have produced the most regrettable result - a one-sided, unbalanced and, it appears, fundamentally unjust judgment. I 2. As time goes by, there must be growing awareness of the increasingly pressing need to ensure more effective protection for personality rights, in particular privacy rights, vis-à-vis a progressively all-powerful media, acting under the aegis of “public interest” (often a simulated one), as well as vis-àvis the impingement on individuals’ privacy rights by those seeking to use the media as a tool for pursuing, to the detriment of privacy rights, whatever interests they may have. The Court should always be mindful of its mission to be at the forefront of raising and maintaining, through its case-law, this awareness. It should not depart from that task by becoming an uncritical protector of the “freedom to ... impart information” (Article 10), where the latter is defended as some “trump” freedom, to which many of the other rights and freedoms of men and women must give way. 3. Very much in line with this mission of the Court is the recent Grand Chamber judgment in the landmark case Bédat v. Switzerland ([GC], no. 26925/08, 29 March 2016). It outlines and follows the Court’s earlier case-law (ibid., §§ 72 and 73). The judgment in Bédat was delivered only a few hours after the present case was deliberated in private by the Chamber; however, it was adopted more than two months prior to the deliberations in the present case (ibid., introductory section) and, as a Grand Chamber judgment in a resonant case, its contents were not unknown “inside” the Court at the time of these latter deliberations. Yet its findings were ignored. In Bédat the Court defended, against the media, the personality rights of an individual who had allegedly not only committed an unlawful act which entailed serious consequences (including the loss of human life) and of which that person was accused in criminal proceedings, but who, at the time that act was committed, allegedly suffered mental-health problems which were aired to the public by a magazine. The distressing incident in which that person was involved had legitimately become the topic of a heated public debate even before an article which infringed upon the perpetrator’s privacy was published. In the present case, however, the applicant’s story was gratuitously trumpeted about in an article which implied that certain mental-health problems from which she had reportedly suffered in the distant past impeded her professional skills. As will be shown, there was no public debate at the material time regarding any decision which the applicant might have taken in her professional capacity or any other circumstance of her life, let alone any criminal investigation against her. In the Bédat case, Switzerland, by safeguarding the defendant’s rights under Article 8, had not violated the freedom of the media under Article 10. The present judgment is based on the idea that whatever rights the applicant might have had under Article 8 (related to her mental suffering when going through a difficult period of her life related to the alleged breach of promise of marriage) were superseded by the freedom of the media under Article 10, and that therefore the non-sanctioning of the latter by the Austrian courts was in line with Article 8. Thus, the Court’s attitude in the present case is in shockingly downright opposition to that in Bédat. 4. How can the Court be so flagrantly ambiguous and simultaneously employ two competing axiologies and two incompatible lines of reasoning? This ambiguity is not a result of a gradual development of the Court’s case-law, by which the Court reinterprets its case-law so that it is able to meet new challenges. It points to a much deeper problem, the task of looking into which (and of rectifying what is rectifiable) lies with the Grand Chamber. www.bailii.org/eu/cases/ECHR/2016/431.html 13/23