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… her which could legitimately call for the media’s attention towards her (see §§ 20 and 22 above respectively), argue for the contrary conclusion. 29. Judges should not speculate as to what really prompted the media to delve into the archives for materials on a civil case about a matter which occurred fifteen years previously and was not destined to be reopened. Still, given that the Austrian courts did not look into this matter, there remain grounds for conspiracy theories (professional market competition? personal revenge? creating a basis for reexamining one of the 3,000 cases? etc.) which cannot be rejected outright. *** 30. In the Court’s case-law the media is often described as a “public watchdog”. This judgment blurs the difference between a watchdog and a hound dog. For a court of human rights, the prey should also matter. DISSENTING OPINION OF JUDGE MOTOC To my regret, I am unable to follow the opinion of the majority. I consider that there has been a breach of Article 8, and that this case raises concerns about the protection of health, especially where a balancing exercise must be carried out with regard to Article 10 of the Convention. Even if I acknowledge the difficulty of this balancing act between Articles 8 and 10, sometimes described as squaring the circle, my assessment is that the basic principles of Article 8 - and ultimately human dignity - tend to be forgotten in the process. In my opinion, the Court has also missed an opportunity to clarify the sensitive issue of the right to reputation in its case-law. To summarize the case: the medical data concerning the applicant was published in a newspaper, and originated in an expert report that had been requested 15 years previously. The expert report in question was ordered in a civil case that had a public character. The impugned article went so far as to mention that the relevant Austrian authorities were aware of the problem and that they were in the process of analysing the medical report. The article also mentioned that there was nothing in the expert’s behaviour over a decade of professional activity that could call into question her excellent reputation. Article 8 of the Convention protects the confidentiality of medical data as a fundamental part of the intimacy of a human being (see the Court’s leading judgments in the cases of Z. v. Finland, 25 February 1997, Reports of Judgments and Decisions 1997-I, and M. S. v. Sweden, 27 August 1997, Reports, 1997-IV; see also the leading ECJ judgment of 5 October 1994, X. v. Commission, Case C-404/92 P). In S. and Marper v. the United Kingdom ([GC], nos. 30562/04 and 30566/04, ECHR 2008), the Court referred to the importance of the protection of personal data, including as they concern matters of health. The Court has stated that Article 8 only admits the disclosure of confidential medical data in exceptional cases, either on the basis of the patient’s free and informed consent or of a decision taken by the legally competent authority, when such a decision is proportionate and necessary in a democratic society. In Panteleyenko v. Ukraine (no. 11901/02, 29 June 2006) the Court found unacceptable the unnecessary disclosure at a court hearing of confidential information regarding the applicant’s mental state and psychiatric treatment (§ 61): “[T]he Court notes that the details in issue being incapable of affecting the outcome of the litigation (i.e. the establishment of whether the alleged statement was made and the assessment whether it was libellous; compare and contrast, Z v. Finland, cited above, §§t102 and 109), the [domestic] court’s request for information was redundant, as the information was not ‘important for an inquiry, pre-trial investigation or trial’.” www.bailii.org/eu/cases/ECHR/2016/431.html 21/23