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… In the present case the Court has also decided in contrast with United States v. Squillacote [2001]), where the U.S. Court of Appeals for the Fourth Circuit upheld Sqillacote’s convictions. The appeal court agreed that the intercepted telephone conversations with Squillacote’s psychotherapist were privileged under the U.S. Supreme Court’s 1996 decision in Jaffee v. Redmond (518 U.S. 1). In Jaffee, the Supreme Court held that “confidential communications between a licensed psychotherapist and her patients in the course of diagnosis or treatment are protected from compelled disclosure”. The special character of health data is not sufficiently taken into account in this case. The Court failed to decide which safeguards should apply to mental-health data and if the protection of the ‘public interest’ and, more specifically, the interest of the children under the applicant’s expertise could have been protected in different way. It is not enough that a complaint was made (even a criminal one: a complaint against the applicant was lodged with the Public Prosecutor’s office, the Youth Advocate at the Regional Government of Lower Austria, and the Vice-President of the Wiener Neustadt Regional Court, who was responsible for managing the list of experts at the court). In a sense, a similar psychological portrait as for Squillacote is admitted by the Court in this case, but with the difference that in our case, at least in the opinion of the majority, no harm was done, on the contrary. On 7 February 2012 the Grand Chamber of the Court handed down its opinion in Von Hannover v. Germany (no. 2) ([GC], nos. 40660/08 and 60641/08, ECHR 2012). It sets out the essential criteria for balancing the right to privacy versus the right to freedom of expression. The first essential criterion is the publication’s contribution to a public debate. Truth is normally irrelevant in this respect. Truth is a defence in libel, irrespective of the existence of a supporting public interest. The Court has criticized the domestic authorities for ignoring the public interest of a publication in Someşan and Butiuc v. Romania (no. 45543/04, 19 November 2013). The Van Hannover criteria were recently reiterated by the Grand Chamber in Couderc and Hachette Filipacchi Associés v. France ([GC], no. 40454/07, ECHR 2015 (extracts)) and Bédat v. Switzerland ([GC], no. 56925/08, 29 March 2016). The Court has stated in the present judgment that a serious debate on the mental-health status of a psychological expert, evoked by reasoned suspicions, has to be considered as a debate of general interest, since an expert in court proceedings is required to meet standards of physical and psychological fitness. Even if we agree with this affirmation, it is very difficult for us to understand how the disclosure of a medical condition, assessed 15 years previously, can contribute to any public debate. It is also in clear contradiction with the fact that nothing in the expert’s current behaviour required such a debate, because her “integrity was beyond reproach over a decade” (see paragraph 8 of the judgment); In fact, the contested article itself states that her integrity was beyond reproach “until now” (emphasis added). The Court has let pass an opportunity to clarify the right to the protection of reputation under the Convention. The Court links back to the arguments raised by the Chamber in Karakó v. Hungary (no. 39311/05, 28 April 2009), basing itself on that judgment’s finding (in § 22) that: “Concerning the question whether or not the notion of ‘private life’ should be extended to include reputation as well, the Court notes that the references to personal integrity in the Von Hannover judgment reflect a clear distinction, ubiquitous in the private and constitutional law of several Member States, between personal integrity and reputation, the two being protected in different legal ways.” If one takes Karakó and Polanco Torres and Movilla Polanco v. Spain (no. 34147/06, 21 September 2010) as an indication of the direction in which the Court is heading with regard to the right to reputation - which is far from obvious - the questions raised at the beginning of the above citation should be answered as follows: a right to reputation exists, but not in all circumstances. Only when the publication in question compromises the personal integrity of the person concerned. When exactly the latter threshold is met will have to be revealed in subsequent case-law. (See George Letsas, E. Brems, J. Gerards, Shaping Rights in the ECHR, The Role of the ECHR in Determining the Scope of Human Rights, CUP, 2014, and S. Smet’s writings on the right to reputation under the Convention). In Karakó v. Hungary (cited above, §§ 23 and 17), the Court established that: www.bailii.org/eu/cases/ECHR/2016/431.html 22/23