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… 5. The present judgment is in stark opposition not only to Bédat (and the Court’s case-law upon which Bédat is built) but also to what is increasingly in the air, in the face of an unprecedented escalation of all-permeating non-scrupulous information about individuals’ private lives. True, it is not for the courts to solve this multi-faceted social and cultural problem. But if a court turns a blind eye to it when dealing with a specific controversy, one can reasonably ask whether that court is performing a social function apart of that of formally settling the dispute at hand. 6. One of the responses by this Court to the challenge mentioned above has increasingly become the concept of responsible journalism (see Bédat v. Switzerland [GC], cited above, § 50, and the caselaw cited therein). One does not have to consult dictionaries to ascertain that the word “responsible” encompasses much more than a merely formalistic legal liability for violations of human rights by the media. This capacious notion relates to the media’s overall mission, on account of which it enjoys an exceptionally high degree of protection. The minimum level of this broader responsibility is somewhat similar to Hippocrates’s “thou shall do no harm” commandment to the medical profession: the media shall do no harm to the community’s general interest, as well as no gratuitous harm to the persons about whom it imparts information. Whereas at times it is not obvious how the first part of this commandment is to be fulfilled (because the general interest may not be understood by all in the same way), the second part is less contradictory: in ethical journalism it is undisputed that what the media publishes or broadcasts may be hurtful, and therefore it should constantly be aware of the impact of its words and images on the lives of others. If this precept is not respected, responsible journalism is an empty phrase. If it is ignored by the Court when examining a case where the freedom of the media comes up against personality rights, then responsible journalism, although often referred to in its caselaw, is to be considered not as a principle of the law of the Convention, but a mere decoration. Surprisingly, the notion of responsible journalism is not mentioned at all in the present judgment. 7. In the face of the ever-growing possibilities available to the (commercial, but at times also noncommercial) media to mushroom its intrusions into individuals’ privacy, many international and national courts have developed such concepts as, for example, the long-known “right to be left alone” or the more recent “right to be forgotten” (whatever the context and scope thereof). The present judgment, on the contrary, displays the attitude that the freedom of the media would be infringed upon almost every time that details of even the most intimate of an individual’s experiences are not allowed to be publicly known. II 8. The applicant complained about the violation of her privacy rights under Article 8. She claimed that the expert report regarding her private life was not related to her current professional skills and, thus, to any public interest, and that the only aim of the article reporting on her story was to damage her reputation. She did not deny that the media had a guaranteed right under Article 10 to discuss the performance of her professional duties or her personality, but maintained that the media and the Austrian courts which examined her case could not justify the publication in question by reliance on Article 10. In the Strasbourg argot, her case is an “Article 8 case”. 9. A case wherein an individual’s rights under Article 8 have to be balanced against the freedom of the media under Article 10 cannot be only an “Article 8 case”. In paragraph 38 of the present judgment, the Chamber, referring to Axel Springer AG v. Germany ([GC], no. 39954/08, § 87, 7 February 2012) and Von Hannover v. Germany (no. 2) ([GC], nos. 40660/08 and 60641/08, § 106, ECHR 2012), rightly reiterates that “the outcome of an application should not, in principle, vary according to whether it has been lodged ... under Article 10 ... by the publisher of an offending article or under Article 8 ... by the person who has been the subject of that article”. Nonetheless, the fact that issues under Articles 8 and 10 are intertwined is not an excuse for transforming an “Article 8 case” into an “Article 10 case” in such a way that the rights under Article 8 have only “secondary” significance. Yet this is precisely what we have at hand. 10. Although the applicant complains that the State has failed to fulfil its positive obligations under Article 8, in the Court’s assessment of the merits of the case (see paragraphs 35-49) only paragraph 35 deals with Article 8 proper and a “positive obligation” is mentioned in that paragraph only once. The judgment does not follow the Court’s approach in privacy cases (see, for example, Von Hannover v. www.bailii.org/eu/cases/ECHR/2016/431.html 14/23