FOURTH SECTION
 
 
 
 
 
CASE OF FÜRST-PFEIFER v. AUSTRIA
 
(Applications nos. 33677/10 and 52340/10)
 
 
 
 
 
 
JUDGMENT
 
 
 
 
STRASBOURG
 
17 May 2016
 
 
 
FINAL
 
17/08/2016
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Fürst-Pfeifer v. Austria,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
 András Sajó, President,
 Boštjan M. Zupančič,
 Nona Tsotsoria,
 Krzysztof Wojtyczek,
 Egidijus Kūris,
 Iulia Antoanella Motoc,
 Gabriele Kucsko-Stadlmayer, judges,
and Marialena Tsirli, Section Registrar,
Having deliberated in private on 29 March 2016,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in two applications (nos. 33677/10 and 52340/10) against the Republic of Austria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Austrian national, Ms Gabriele Fürst‑Pfeifer, (“the applicant”), on 17 June 2010 and 9 September 2010 respectively. 2. The applicant was represented by Lansky, Ganzger & Partners, lawyers practising in Vienna. The Austrian Government (“the Government”) were represented by their Agent, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry for Europe, Integration and Foreign Affairs. 3. The applicant alleged that the Austrian courts had failed to protect her reputation against defamatory allegations made in a newspaper article. 4. On 9 October 2013 the applications were communicated to the Government. THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant, Ms Gabriele Fürst-Pfeifer, is an Austrian national who was born in 1964 and lives in Mödling. She is a psychiatrist and has been registered since the year 2000 as a psychological expert for court proceedings in custody and contact-rights-related disputes and decisions on public care as well as child abuse. Specialised in the psychological examination of children and adolescents, her focus is mainly on custody and contact-rights-related disputes. 6. The online publication “meinbezirk.at” was published and edited by the “Print” Multimedia Company GmbH, a private company which had its registered office in St. Pölten. 7. The regional weekly print publication Bezirksblatt, which was sent to every household of the district free, was published and edited by the “Print” Zeitungsverlag GmbH, a private company which had its registered office in Innsbruck. A. The published article
8. On 23 December 2008 an article was published in “meinbezirk.at” as well as in the print version of Bezirksblatt, which stated as follows:
“The quality of experts in the spotlight (Gutachterqualität im Visier)
Disclosed: Court Expert for custody proceedings a case for therapy
(Aufgedeckt: NÖ Sorgerechts-Sachverständige selbst ein Therapie-Fall)
Suffering from up-and-down mood swings, panic attacks, suicidal thoughts and hallucinations, together with paranoid ideas – but working as a court-appointed expert. In the last 12 years she has examined over 3.000 married couples in custody‑related disputes. Now it seems, it gets rough for [the applicant] as an expert report about her psychological condition has been disclosed ... A psychological expert report by Dr. M. was commissioned in 1993 in the course of civil proceedings (action because of an alleged breach of promise of marriage) which unearthed the deficiencies of [the applicant] described above. Moreover, Dr. M. came to the conclusion that the applicant’s impairments were hereditary, as the history of her family showed an accumulation of these impairments. Three years later, the applicant was introduced to the “expert community” at the Wiener Neustadt Regional Court, and her integrity was beyond reproach for a decade – until now.”
9. The passage was followed by comments by a member of the Green Party, who had made a criminal complaint against the applicant 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. At the end of the article it was mentioned that the applicant was no longer answering her phone and had withdrawn from all her cases. 10. As a result of the article the applicant was confronted with questions related to it from colleagues and patients, and proceedings were initiated at the Wiener Neustadt Regional Court to clarify whether she was still fit to work as a court-appointed expert. In the course of those proceedings the applicant’s mental status was also set to be examined. B. The proceedings against the “Print” Multimedia Company GmbH concerning the online publication
11. On 14 January 2009 the applicant lodged an action with the St. Pölten Regional Court. She sought damages under section 8a of the Media Act (Mediengesetz) and the publication of the judgment claiming that the article and in particular the passages dealing with the psychological expert report on the applicant had violated her intimate personal sphere and compromised her publicly. However, she did not argue that the expert report had been obtained unlawfully. 12. On 3 April 2009 the St. Pölten Regional Court (Landesgericht St. Pölten) allowed the applicant’s action, ordered the publisher to pay damages in the amount of 5,000 euros (EUR) and the operative part of the judgment to be published. Furthermore, the publisher was to bear the costs of the proceedings. The court found that an average reader would understand the article as putting the expert opinion from 1993 in direct relation to the applicant’s work as an expert now, thus questioning the quality of her work. The article, that also featured the applicant’s full name and the description of her psychological impairment, touched her intimate personal sphere, since it created a link between her mental state and the quality of her work. However, the information itself did not allow for such a link, especially since the expert opinion dated from 1993 and dealt only with a very specific question in the context of civil proceedings at the time. The incomplete and manipulative content of the article was not able to meet the standards of reporting on matters of fact. Furthermore, the court did not consider that there was a direct link between the contents of the article and the applicant’s public position, given that she mainly worked as an expert in custody cases, which were not usually heard in public. Furthermore, it could be assumed that the applicant, a psychiatrist herself and a medical doctor, was managing her illness well and was able to do her work without any impairments. 13. The publisher appealed on points of law and fact, as well as against the sentence (Berufung wegen Nichtigkeit, Schuld und Strafe). 14. Thereupon, on 30 November 2009, the Vienna Court of Appeal (Oberlandesgericht Wien) heard the appeal, set aside the judgment of the lower court, and dismissed the applicant’s action. The Court of Appeal confirmed that the article and the impugned passages giving opinions on the applicant’s mental state affected her intimate personal sphere and were capable of compromising her. However, the content of the article was true, as it only repeated true information that had not been disputed by the applicant. Furthermore, the court did not find the article to be incomplete or manipulative, but sufficiently well-balanced and faithful to the different sides of the story in that it also referred to the fact that the applicant’s integrity had never been questioned in ten years; the court also asked for statements from the Vice-President of the Wiener Neustadt Regional Court, a member of the Green Party, and the Youth Advocate of the Regional Government of Lower Austria. 15. The Court of Appeal further found that the publication in issue was directly linked to the applicant’s public status. She had been included in the list of experts to be appointed by the courts since the year 2000 and had been appointed in several cases. This regular work as an expert in court proceedings belongs beyond doubt to the public sphere (“...ist zweifellos dem öffentlichen Leben zuzuordnen...”) as she took part in association with the State-organised judiciary and held an important position in connection with the decision-making process of judges. Even though the impugned expert opinion dated from 1993 and concerned a period in the applicant’s life prior even to that date, the reporting in question touched sufficiently upon the present public activities of the applicant. Considering the importance and sensitivity of the area of custody proceedings and the dominant role of experts in the field, the psychological integrity of an expert assigned to those cases had to be beyond doubt. Any reservation in relation to the mental health of experts – if based on sufficient reasons – had to be met with a thorough investigation in the interest of good conduct of the administration of justice, which was what had happened as the next step in the present case. According to the Court of Appeal, the article took up doubts arising from the neurologist opinion in 1993 without denying the applicant’s abilities as an expert in the area. The truthful information in the article and the public interest in the subject matter justified the article’s critical questioning of exactly those abilities. 16. That judgment was served on the applicant’s representative on 17 December 2009. C. The proceedings against the “Print” Zeitungsverlag GmbH concerning the printed publication
17. In the meantime the applicant lodged an action with the Innsbruck Regional Court on 7 April 2009. She sought damages under section 8a of the Media Act (Mediengesetz) and publication of the judgment claiming that the article, and in particular the passages dealing with the psychological expert report on her, violated her intimate personal sphere and compromised her publicly. 18. On 2 October 2009 the Innsbruck Regional Court (Landesgericht Innsbruck) granted the applicant’s action, ordered the publisher to pay damages in the amount of 5,000 euros (EUR) and the publication of the operative part of the judgment. Furthermore, costs were awarded against the publisher. The court found that the average reader would understand the article as stating that the applicant was incapable of being an expert in custody proceedings because of her own mental health impairments in 1993 and that this placed in question the quality of the applicant’s work so far. That the applicant’s psychological illness was directly linked to the intimate personal sphere was beyond doubt. The present article not only mentioned the applicant’s mental health status, but also grossly exaggerated individual symptoms, which was also capable of compromising her. The article was so incomplete and distorted that it could not be considered a report of matters of fact. The Regional Court in particular noted that the article did not mention that the period of examination was even earlier than 1993 and that only certain aspects of the expert opinion had been published, while others had not. Scandalously the article created the impression that the applicant had rendered decisive opinions in custody proceedings for over a decade while herself suffering from the symptoms described above. Furthermore, the publication was not linked in any way to the applicant’s public status (“...steht [...] in keinem unmittelbaren Zusammenhang mit dem öffentlichen Leben der Antragstellerin”). There was no connection between the applicant’s work at present and her mental health status years ago. Her work in the context of custody proceedings was also not conducted in public. 19. The publisher appealed on points of law and fact, as well as against the sentence (Berufung wegen Nichtigkeit, Schuld und Strafe). 20. Thereupon, on 11 February 2010, the Innsbruck Court of Appeal (Oberlandesgericht Innsbruck) granted the appeal, set aside the judgment of the lower court, and dismissed the applicant’s action. In contrast to the Regional Court it found that the average reader would understand from the article at issue that in 1993 an expert opinion was rendered in respect of the applicant that showed the above-mentioned psychological impairments. However, the article also stated that the applicant’s integrity had not been questioned for over a decade. The article, while focusing on the applicant’s work in custody proceedings, gave space to comments from the Youth Advocate of the Regional Government of Lower Austria, a member of the Green Party, and the Vice-President of the Wiener Neustadt Regional Court. The article did not indicate however that the applicant was not competent to exercise her profession as a psychological expert. Furthermore, the published information was true. The fact that only parts of the expert opinion were repeated in the article did not render the article distortive, nor the relevant information untrue. 21. As regards the connection to the public sphere and public interest, the Court of Appeal found that the State administration, together with the administration of justice, belonged to the public sphere. The applicant had been included in the list of court-commissioned experts since the year 2000, and her repeated work as an expert in court proceedings must be considered as belonging to the public sphere. The activity was closely linked to the administration of justice, and had a considerable influence on judges’ decision-making processes. The impugned article concerned the applicant’s activity as an expert in custody proceedings. Considering the importance and sensitivity of the area of custody proceedings and the dominant role of experts in the field, the psychological integrity of an expert assigned to those cases had to be beyond doubt. Any reservation in relation to the mental health of experts – if based on sufficient reasons – had to be met with a thorough investigation in the interest of the proper administration of justice, which had happened as a next step in the present case. Insofar, a truthful report linked to a person’s public status, which also contained information belonging to the intimate personal sphere must be permitted to be published. The Court of Appeal concluded that the article, by way of an appropriate commentary, critically examined a matter of public interest and therefore exercised its role as a “public watchdog”. 22. That judgment was served on the applicant’s representative on 11 March 2010. II. RELEVANT DOMESTIC LAW
23. Section 7 of the Media Act, which has the title “Interference with a person’s most intimate personal sphere” (Verletzung des höchstpersönlichen Lebensbereiches), reads as follows:
“(1) If the strictly personal sphere of an individual’s life is discussed or portrayed in the media in a way liable to publicly undermine the individual concerned, he or she shall have the right to claim compensation for the damage sustained from the media proprietor (publisher). The amount of compensation may not exceed 20.000 euros ... (2) The right referred to in paragraph 1 above shall not apply where:
(i) the statements comprise an accurate account of a debate held during a public sitting of the National Council, the Federal Council, the Federal Assembly, a regional parliament or a committee of one of these general representative bodies;
(ii) the statements published are true and are directly related to public life;
(iii) it can be assumed from the circumstances that the person concerned had agreed to publication, or
(iv) the statements were made during a live broadcast, and no employee or representative of the broadcaster failed to exercise proper journalistic care.”
24. If the public prosecutor does not file a bill of indictment, the person who claims to be the victim of an interference with his or her intimate personal sphere may request the opening of criminal proceedings. According to Section 8a § 1 of the Media Act, this person has the legal rights and abilities of a private prosecutor (Privatankläger). 25. According to the Federal Act on the Certifying and Declaration on Oath of Experts and Interpreters, Federal Law Gazette No. 137/1975 (Bundesgesetz über die allgemein beeideten und gerichtlich zertifizierten Sachverständigen und Dolmetscher; Sachverständigen- und Dolmetschergesetz, BGBl. 137/1975) authorities shall normally choose an expert from a register held by the President of the Regional Court. According to section 2 § 2 of this law, to be enlisted as an expert for a specific scientific area, one, inter alia, has to be physically and psychologically fit. THE LAW
I. JOINDER OF THE APPLICATIONS
26. Given that the two applications concern the same press article, once published on the Internet and once in print by two different companies, and that they share a legal basis, the Court decides to join them (Rule 42 § 1 of the Rules of Court). II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
27. The applicant complained that the authorities had failed to protect her rights under Article 8 of the Convention, as they had dismissed her actions with the courts to be compensated for alleged unlawful publication of facts of her private life. Article 8, in so far as relevant, provides as follows:
“1. Everyone has the right to respect for his private ... life... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
28. The Government contested that argument. A. Admissibility
29. The Government requested the Court to declare the application inadmissible in accordance with Article 35 of the Convention as the applicant had not lodged a request for retrial under Article 363a of the Code of Criminal Proceedings to redress the alleged breach. Article 363a of the Code of Criminal Proceedings would provide for a retrial in criminal proceedings if the European Court of Human Rights had found a violation of the Convention. The Supreme Court had extended this remedy by analogy, stating that a judgement by the European Court of Human Rights was not a necessary prerequisite for a retrial in criminal proceedings (Supreme Court, judgment of 1 August 2007, no. 13Os135/06m). It was thus possible to challenge a violation of the rights under the Convention in the context of criminal proceedings at the domestic level by applying for a retrial on the basis of Article 363a of the Code of Criminal Proceedings directly to the Supreme Court. 30. The applicant contested this argument. 31. The Court observes that in the case of ATV Privatfernseh-GmbH v. Austria ((dec.) no. 58842/09, 6 October 2015, § 32) it has examined in detail the question whether Article 363a of the Code of Criminal Proceedings was a remedy readily available and sufficient to afford redress in respect of an alleged breach of rights under Article 10 of the Convention in proceedings for compensation under section 7 of the Media Act. It found that a request under Article 363a of the Code of Criminal Proceedings constituted, in the circumstances of the case, an effective and sufficient remedy an applicant would be obliged to use. However, it transpires from the Supreme Court’s case-law (quoted in ATV Privatfernseh-GmbH (dec.), cited above, § 22), that victims of crimes and private prosecutors, as well as public prosecutors, are not entitled to this remedy. The Government has not provided evidence which would show that the availability of this remedy also extended to this group of persons. It follows that the Government’s objection with regard to the non-exhaustion of domestic remedies has to be dismissed. 32. The Court notes that the applications are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that the applications are not inadmissible on any other grounds. They must therefore be declared admissible. B. Merits
1. The parties’ submissions
33. The applicant submitted that the Austrian courts had violated their duty to protect her right to private life when dismissing her actions for compensation for the unlawful publication of matters relating to her private life. The content of an expert report about her psyche was part of her private life and not related to any public interest. The Vienna Court of Appeal as well as the Innsbruck Court of Appeal had not taken into account that the publication of a 17-year-old expert report would not fulfil a pressing social need and was of no relevance when assessing her present professional skills. The publication’s aim was not to inform the public but only to damage her reputation. Under these circumstances the publishers could not rely on their rights under Article 10 as she was not a public figure. The applicant did not argue that the expert report had been obtained unlawfully. 34. The Government argued that the Austrian courts had struck a fair balance between the competing interests under Articles 8 and 10 of the Convention within the margin of appreciation granted by the Convention. Information about the mental state of health of a court-certified expert who worked in sensitive proceedings in custody issues was a contribution to a debate of general and public interest. Issues concerning the functioning of the justice system would constitute questions of public interest and it would be the duty of the press to impart information on matters relating to the functioning of the judiciary. Because of the special role of experts in the Austrian judicial system and their influence on the courts’ decisions, not only would the activities of judges, public prosecutors or registrars constitute an issue of public life, but so would those of court-certified experts. As regards the contents of the article, its truth remained undisputed. Both Courts of Appeal had reached the conclusion that it was neither incomplete nor manipulative, but rather well-balanced, taking various aspects and views into account. Not only did the article reproduce statements and comments of representatives of public life, it also mentioned the fact that the applicant’s professional integrity had not been questioned during ten years of practice. 2. The court’s assessment
35. The Court reiterates that according to its case-law the right to reputation is an independent right guaranteed by Article 8 of the Convention which the State has a positive obligation to protect (see Karakó v. Hungary, no. 39311/05, § 18, 28 April 2009). 36. With regard to cases in which a violation of the rights guaranteed under Article 8 is asserted and the alleged interference with those rights originates in an expression, the Court has already found that the protection granted by the State should be understood as one taking into consideration its obligations under Article 10 of the Convention. It is the latter provision which has been specifically designed by the drafters of the Convention to provide guidance concerning freedom of speech – also a core issue in the present application. Paragraph 2 of Article 10 recognises that freedom of speech may be restricted in order to protect reputation. In other words, the Convention itself announces that restrictions on freedom of expression are to be determined within the framework of Article 10 enshrining freedom of speech (see Karakó, cited above, § 20-21). 37. In particular, in cases concerning newspaper publications, the Court has previously held that the protection of private life has to be balanced, among other things, against the freedom of expression guaranteed by Article 10 of the Convention (see, with further references, Węgrzynowski and Smolczewski v. Poland, no. 33846/07, § 56-58, 16 July 2013). 38. The Court has further found that, as a matter of principle, the rights guaranteed by these provisions deserve equal respect and the outcome of an application should not, in principle, vary according to whether it has been lodged with the Court under Article 10 of the Convention by the publisher of an offending article or under Article 8 of the Convention by the person who has been the subject of that article. Accordingly, the margin of appreciation should in principle be the same in both (see 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). 39. The Court has also observed that the most careful of scrutiny under Article 10 is required where measures or sanctions imposed on the press are capable of discouraging the participation of the press in debates on matters of legitimate public concern. Furthermore, particularly strong reasons must be provided for any measure limiting access to information which the public has the right to receive. The Court has also observed that the press must not overstep certain bounds, particularly as regards the reputation and rights of others (for many examples see Węgrzynowski and Smolczewski, cited above, § 56-58). 40. Where a balancing exercise between those two rights has been undertaken by the national authorities in conformity with the criteria laid down in the Court’s case-law, the Court would require strong reasons to substitute its view for that of the domestic courts. In other words, there will usually be a wide margin afforded by the Court if the State is required to strike a balance between competing private interests or competing Convention rights (see, with further references, Delfi AS v. Estonia [GC], no. 64569/09, § 139, 16 June 2015). 41. The Court reiterates that, in matters of freedom of expression, its task in exercising its supervisory jurisdiction is not to take the place of the competent national authorities but rather to review under Article 10 the decisions they delivered pursuant to their power of appreciation. The Court will look at the interference complained of in the light of the case as a whole and determine whether the reasons adduced by the national authorities to justify it are “relevant and sufficient” and whether they were “proportionate to the legitimate aim pursued”. In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they relied on an acceptable assessment of the relevant facts (see, among many other authorities, Cojocaru v. Romania, no. 32104/06, § 21, 10 February 2015). 42. It follows that, notwithstanding the fact that the applicant claims a violation of Article 8 of the Convention, the Court has to determine whether the principles inherent to Article 10 were properly applied by the Austrian courts when deciding the applicant’s actions (see for many, Ruusunen v. Finland, no. 73579/10, § 43, 14 January 2014; Couderc and Hachette Filipacchi Associés v. France [GC], no. 40454/07, § 93, 10 November 2015). 43. In previous case-law, the Court has emphasised that information about a person’s health is an important element of private life (see, S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, § 66, ECHR 2008). Both Courts of Appeal noted that the article concerned an important element of the applicant’s private life and compromised her in public but dismissed the compensation claims because the published facts were true and had a direct connection to the public sphere. However, the particular information on the applicant’s mental health stemmed from the report of a court‑appointed expert acting in public proceedings before a civil court. Moreover, as can be seen from the persons quoted in the article at issue and their respective statements (see above paragraph 9), the authors of the article reported that the medical report had already provoked political reactions and thus participated in an ongoing public debate. 44. The Court notes that the article under consideration did not contain a reference to ongoing or recently ended court proceedings but a dispute if the applicant’s psychological condition as described by an expert report in 1993 would contravene her appointment as expert. As to the method of obtaining the information employed the Court observes that the applicant had never argued that the medical expert report at issue had been obtained illegally. As to the veracity of the information, the truth of the content of the article under consideration was undisputed in the whole proceedings. Furthermore, the content of the article was balanced, informing on facts and not only intended to satisfy public curiosity. Beside a catchy sub-headline only facts and comments by third persons, clearly distinguished by quotation marks, were included. It was clearly stated that the expert report dated back to court proceedings in 1993 and that the applicant’s integrity had not been questioned for more than a decade. These facts were set out without any negative comment by the author. 45. The Court further notes that a serious debate on the mental health status of a psychological expert, evoked by reasoned suspicions, has to be seen as a debate of general interest, as an expert in court proceedings is required to meet standards of physical and psychological fitness. This is all the more important as a court certified psychological expert, such as the applicant, plays an important and sometimes decisive role in the decision making process in child care proceedings and thus strongly influences not only the fate of families but also of individuals in an early and sensitive stage of personal development. In the eyes of the parties to the proceedings and the general public there must not be any doubts as to the mental fitness of such an expert in order to maintain public trust in the judiciary. 46. The Court has already stated that, when it comes to the criticism of their actions, members of the judiciary should not be treated on an equal footing with politicians, as they do not lay themselves open to close scrutiny of their every word and deed to the extent to which the latter do. Nonetheless, civil servants acting in an official capacity may nevertheless be subject to wider limits of acceptable criticism than ordinary citizens (see with further references, July and SARL Libération v. France, no. 20893/03, § 74, ECHR 2008 (extracts)). The Courts of Appeal have based their decisions on the finding that the applicant, as a frequently appointed expert in court proceedings in the very sensitive field of child psychology and fosterage should be treated similarly to civil servants acting in an official capacity when it comes to examining whether a careful balance has been struck between the competing public and private interests. The Court does not see strong reasons to substitute its view for that of the domestic courts in regard to this finding. 47. Nonetheless the Court observes that those who act in an official capacity must enjoy public confidence in conditions free of undue perturbation if they are to be successful in performing their tasks and it may therefore prove necessary to protect them from offensive and abusive verbal attacks when on duty (see Janowski v. Poland [GC], no. 25716/94, § 33, ECHR 1999‑I). In the present case however, there is no need to weigh the requirements of such protection against the interests of the freedom of the press or of open discussion of matters of public concern, since the article under consideration did not contain offensive or abusive verbal attacks. 48. On these grounds, the Court is satisfied that the decisions of the Vienna Court of Appeal and of the Innsbruck Court of Appeal struck a fair balance between the competing interests in the present case.
49.

Article of the Convention at issue: Article 8
Outcome: no_violation