Case Summary and Outcome

The European Court of Human Rights held that a psychiatrist’s privacy rights had not been violated when her mental health information was published in an article online and in print. The article mentioned that she had suffered from mental problems while working as a court-appointed expert. The European Court of Human Rights declared that the health status of a physiological expert is a debate of general interest. Further, the Court held that court appointed civil servants are subject to wider criticism than ordinary citizens. Dissenting judges argued that the majority failed to balance competing privacy and freedom of expression rights, as their analysis focuses solely on freedom expression guaranteed by Article 10 of the European Convention on Human Rights.

Facts

The applicant, Ms. Gabriele Fürst-Pfeifer, is a psychiatrist who also works as a psychological expert for court proceedings in custody, public care, child abuse and contact-rights-related disputes. In 2008, and online publication meinbezirk.at and a weekly print publication Bezirksblatt, published an article including a psychological report detailing her own mental health history.

The article mentioned that she had previously suffered from mood swings, panic attacks, suicidal thoughts and hallucinations, and paranoid ideas while working as a court-appointed expert. After publication, a member of the Austrian Green Party filed a criminal complaint against her. Her colleagues and patients also questioned her, which resulted in proceedings being initiated in court to clarify her fitness to continue as a court-appointed expert.

Ms. Fürst-Pfeifer sued the newspaper and the website, claiming damages under section 8a of Austria’s Media Act for the infringement of her intimate personal sphere. The Regional court ruled in her favor finding that, the article, by creating a link between her mental state and the quality of her work, touched upon her intimate personal sphere. In addition, the content of the article was incomplete, manipulative and did not meet the standards of reporting on matters of fact.

The Innsbruck Court of Appeal however, reversed this ruling and found in favor of the website and the newspaper. The Court of Appeal held that while the article did give opinions on Fürst-Pfeifer’s mental state affecting her personal sphere, the content of the article was true, undisputed by the applicant, not manipulative and incomplete, but sufficiently well balanced and faithful to all sides of the story as it mentioned that her integrity had not been questioned in more than a decade.

Ms. Fürst-Pfeifer then appealed the case to the European Court of Human Rights (ECtHR). She complained to the Court of a violation under Article 8 of the European Convention on Human Rights (ECHR) violation.

Decision Overview

Judges András Sajó, Boštjan M. Zupančič, Nona Tsotsoria, and Gabriele Kucsko-Stadlmayer delivered the majority judgement, and Judges Krzysztof Wojtyczek, Egidijus Kūris, Iulia Antoanella Motoc dissented.

The Court reiterated that when balancing privacy and freedom of expression have both rights deserve equal respect. Notwithstanding the fact that the applicant claimed a violation of Article 8, the Court held that it had to determine whether the principles inherent to Article 10 were properly applied by the Austrian courts. The Court pointed-out that previous case law had determined that information about a person’s health is an important element of private life. However, in this case the particular information about the applicants health came from a report that was used in public proceeding before a civil court, which the authors of the article pointed out had already provoked political reactions and was part of ongoing public debate.

The Court highlighted that the applicant had not argued that the information had been obtained illegally nor disputed the veracity of the information. Furthermore, the article’s content was balanced as it informed on the facts and intended to satisfy the public’s curiosity. It clearly stated that the report was from proceedings that took place 15 years earlier and that the applicant’s integrity had not been questioned for over a decade. The mental health status of a physiological expert is a debate of general interest as experts are required to meet certain standards particularly if they are court certified. Further, the Court stressed that court appointed civil servants are subject to wider criticism than ordinary citizens.

The Court held that it did not see any strong reasons to substitute the Austrian Court of Appeal’s decision which was based on finding that the applicant as a frequently appointed expert in the sensitive field of child psychology and fosterage should be subject to same criticism as other civil servants in official capacity when considering whether an appropriate balance between competing public and private interests has been struck. The Court acknowledged that those acting in official capacities should be free of unnecessary abusive and offensive verbal attacks to successfully perform their duties. However, in the present case such protection could not come into play as the article did not contain any such attacks. Therefore, it was held that there had been no Article 8 violation.

In a joint dissenting judgment, Judges Wojtyczek and Kūris stated that the majority judgment had several major flaws. Article 8 was not analyzed and instead the majority focused on Article 10 immediately. The dissenters held that this created a one-sided scrutiny and therefore was not a fair balancing exercise: “… 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 emphasized.” [Dissent – para. 1]

Further, the dissenting judges pointed out that majority ignored the precedent in Bédat v Switzerland which had raised somewhat analogous issues but in which the Court had ruled against freedom of expression. The Court in Bédat had reasoned according to the concept of responsible journalism (“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”) which was not mentioned at all in the present judgment. [Dissent – para. 6]

The dissenting judges also found the failure to reference cases like Z v Finland and Armonienė v Lithuania, on the disclosure of persons’ HIV status to be a major flaw. Those cases found HIV status to be protected by privacy rights and the dissenters argued this protection does “not apply only to persons suffering from HIV or other contagious diseases [but is] equally applicable to those who have a history of mental-health problems”. [Dissent – para. 15]

The dissenting judges felt that the failure to adequately evaluate the impact on Ms. Fürst-Pfeifer’s right to private life of the public disclosure of the health data in the majority judgment “allows for the stigmatisation of individuals with a history of mental-health problems [and] panders to prejudice.” [Dissent – para. 17]

Judge Motoc, in a separate dissenting judgment, also noted that in the balancing act performed by the majority the basic principles of Article 8 and ultimately human dignity have been forgotten.