FIRST SECTION

Application no. 33677/10 Gabriele FÃœRST-PFEIFER against Austria lodged on 17 June 2010

STATEMENT OF FACTS

The applicant, Ms Gabriele Fürst-Pfeifer , is an Austrian national, who was born in 1964 and lives in Mödling . She is represented before the Court by Mr G. Lansky , a lawyer practising in Vienna .

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant is a psychiatrist and has been working since the year 2000 as a psychological expert in court proceedings, mainly within the framework of custody related disputes.

On 23 December 2008 an article appeared in the online publication “ meinbezirk.at ”, published and edited by the “Print” Multimedia Company ltd. that reported on a psychological expert opinion concerning the applicant herself, dating from 1993.

The article bore the headline “The quality of experts in the spotlight” (“ Gutachterqualit ä t im Visier ”) and explained that a psychological expert opinion had been commissioned examining the mental status of the applicant in the course of civil proceedings dealing with the breach of promise of marriage. That expert opinion by a Viennese neurologist dating from 1993 had described “psychological deficits”, such as pronounced up and down mood swings, panic attacks, suicidal thoughts and optical illusions together with paranoid ideas. The expert at the time had concluded that the applicant ’ s impairments were hereditary. The article went on stating that three years later, the applicant had been introduced to the “scene of experts” at the Wiener Neustadt Regional Court, and that her integrity had been beyond reproach for a decade. It followed comments by a member of the Green Party, 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.

As a result of the reporting the applicant was faced with related questions from colleagues and patients, and proceedings were initiated at the Wiener Neustadt Regional Court concerning her ability to work as a court-commissioned expert. In the course of those proceedings the applicant ’ s mental status was also to be examined.

On 14 January 2009 the applicant lodged an action with the courts requesting damages under the Media Act ( Mediengesetz ) and publication of the judgment. She claimed that the article and in particular the passages dealing with the psychological expert opinion of the applicant violated her intimate personal sphere and compromised her publicly.

On 3 April 2009 the St. P ö lten Regional Court ( Landesgericht St. P ö lten ) followed the applicant ’ s motions, 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, the publisher had 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 a direct context with the applicant ’ s work as an expert at present and 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 status 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 the reporting of true factual statements. Furthermore, the court did not discern a connection of the content of the article with the applicant ’ s public status in view of the fact that the applicant mainly worked as an expert in custody cases that were usually not public. Furthermore, it could be assumed that the applicant, a psychiatrist herself and a medical doctor, managed her illness well and was able to exercise her work without any impairments.

The publisher filed an appeal on points of law and fact, as well as against the sentence ( Berufung wegen Nichtigkeit , Schuld und Strafe ) .

Thereupon, on 30 November 2009, the Vienna Court of Appeal ( Oberlandes ­ gericht Wien ) followed the appeal, set aside the judgment of the first instance and dismissed the applicant ’ s motions. The Court of Appeal confirmed that the article and the impugned passages concerning the opinion on the applicant ’ s mental status 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 opposed 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 was never questioned in the course of ten years and requesting statements of 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.

The Court of Appeal further established that the publication was directly linked to the applicant ’ s public status since she was included in the list of experts to be appointed by the courts and in that her repeated work as an expert in court proceedings must be seen as being a part of public life. Her work in this context was exercised within the framework of state- organised judiciary and important for the decision-making process of judges. Even though the impugned expert opinion dated from 1993 and concerned a period in the applicant ’ s life even before that date, the reporting in question sufficiently touched upon 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 a good-working administration of justice, which was what had happened as a next step in the present case. According to the Court of Appeal, the article simply referred to the problem areas raised by the neurologist in 1993 without denying the applicant ’ s abilities as an expert in the area. The truthful information of the article and the public interest in the subject matter justified the article ’ s critically putting exactly those abilities into question.

That judgment was served on the applicant ’ s representative on 17 December 2009.

B. Relevant domestic law

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 a person ’ s strictly private life is discussed or presented in the media in a manner which is apt to compromise this person in public, the person concerned may claim compensation from the owner of the media for the injury suffered. The amount of compensation shall not exceed EUR 20,000 ...

(2) No compensation claim under paragraph 1 exists if

1. the publication at issue is based on a truthful report on a public session of the National Council or the Federal Council, the Federal Assembly, a regional diet or a committee of one of these general representative bodies;

2. the publication is true and has a direct connection to public life;

3. in the circumstances it could have been assumed that the person concerned had agreed to the publication;

4. it is a direct broadcast on radio or television (live programme ) and the employees or contractors of the radio or television station have not neglected the principles of journalistic diligence;

5. the information has been published on a retrievable website and the owner of the media or its employees or contractors have not neglected the principles of journalistic diligence.”

COMPLAINT

The applicant complains under Article 8 of the Convention that the appeal decision by the Court of Appeal violated her right to respect for her private life.

QUESTION TO THE PARTIES

Has there been a violation of the applicant ’ s right to respect for her private life contrary to Article 8 of the Convention?