PARTLY CONCURRING OPINION OF JUDGE JOCIENE

1. I agree with the majority ’ s finding in this case that there has been no violation of Article 8 of the Convention and I voted to that effect . I also agree with the majority that paragraph 2 of Article 10 of the Convention refers to the reputation aspect and that freedom of expression and the right to protection of privacy, including reputation, should be carefully balanced. Nevertheless, I think that protection of reputation, as an aspect, indistinguishable from a person ’ s privacy (personal integrity) should be concentrated under and protected by Article 8 of the Convention. Paragraph 2 of Article 10 should be applicable only in cases where the balancing test must be carried out in order to establish the necessity and proportionality of an interference with freedom of expression.

2. With regard to the arguments used in the analysis, I note that in paragraph 21 of the j udgment, the majority , referring to the case of Von Hannover v. Germany (no. 59320/00, § 50, ECHR 2004-VI) , observed that the Convention, as interpreted in the Von Hannover judgment regarding an individual ’ s image, extends the protection of a person ’ s private life to the protection of personal integrity. However, the Court said at § 50 of that judgment that the concept of private life “extends to aspects relating to personal identity, such as a person ’ s name (see Burghartz v. Switzerland , judgment of 22 February 1994, Series A no. 280-B, p. 28, § 24), or a person ’ s picture (see Schüssel v. Austria ( dec .), no. 42409/98, 21 February 2002)”. This means, in my opinion, that the Court interpreted a person ’ s picture as part of a person ’ s private life relating to his personal identity (and not personal integrity). Furthermore, the Court held in the same § 50 of that judgment that “private life ... includes a person ’ s physical and psychological integrity [ ... ].”

3. In the case of Pfeifer v. Austria (no. 12556/03, §§ 33-34), with regard to the applicability of Article 8, the Court also reiterated that “private life” extends to the individual ’ s personal identity, such as a person ’ s name or picture , and, furthermore, includes a person ’ s physical and psychological integrity. In § 34 of the Pfeifer judgment, the Court found that the publication of a person ’ s photograph fell within the scope of his or her private life even where the person concerned was a public figure (see Schüssel v. Austria ( dec .), no. 42409/98, 21 February 2002, and Von Hannover , cited above, § 53). Therefore, in my opinion, and I conclude on this point, this protection of an individual ’ s image or photograph extended the guarantee of respect for private life to the protection of personal identity, but not personal integrity.

4. With regard to paragraphs 22 and 23 of the present judgment and especially the question (see paragraph 22), as to whether the notion of “private life” should be extended to include reputation as well, I think that such a question is unnecessary, because the jurisprudence of the Court has been clearly developed on this point. In the said Pfeifer v. Austria case the Court stated: “It has already been accepted in the Convention organs ’ case-law that a person ’ s right to protection of his or her reputation is encompassed by Article 8 as being part of the right to respect for private life”.

In another case, Chauvy and Others v. France (no. 64915/01, § 70, ECHR 2004-VI), concerning a complaint under Article 10, the Court found that a person ’ s reputation, which was affected by the publication of a book, was protected by Article 8 as part of the right to respect for private life and had to be balanced against the right to freedom of expression. This approach was followed in Abeberry v. France (( dec .), no. 58729/00, 21 September 2004) and Leempoel & S.A. ED. Ciné Revue v. Belgium (no. 64772/01, § 67, 9 November 2006). I agree that the right to the protection of a person ’ s reputation and honour, as such, was left open in Gunnarsson v. Iceland ( ( dec .), no. 4591/04, 20 October 2005). However, in the Pfeifer case ( § 35), the Court came to the conclusion that a person ’ s reputation , even if that person is criticised in the context of a public debate, forms part of his or her personal identity and psychological integrity and therefore also falls within the scope of his or her “private life”, and Article 8 therefore applies.

5. The same approach was followed in the mo re recent judgment of Petrina v. Romania (no. 78060/01, judgment of 14 October 2008, §§ 28-29), to which the majority make no reference, but where the Court confirmed that a person ’ s reputation is protected by Article 8 of the Convention as an integral part of his or her private life.

Therefore, I think that the question in paragraph 22 of the present judgment is not needed for the reasons explained above. Furthermore, I cannot agree with the majority ’ s position in paragraph 23 that a person ’ s reputation has been deemed to be an independent right only sporadically, or mostly when the factual allegations were of a serious nature. In my opinion, it is clear from the jurisprudence of the Court which I have cited above that a person ’ s reputation falls within the scope of “private life” and attracts the protection of Article 8, not only sporadically but whenever it is justified according to the circumstances of the concrete case.

6. I am not sure that the reference at paragraph 23 of the present judgment to the case of Armonienė v. Lithuania (no. 36919/02, 25 November 2008) is needed, for the very simple reason that, like the case of Biriuk v. Lithuania (no. 23373/03, 25 November 2008), that applicant was not complaining about a loss of reputation, or any related aspect, due to the impugned publications. Ms Armonienė complained about a breach of privacy under Article 8 (in general), relying on the fact that the State had failed to secure her family ’ s right to respect for their private life as a result of the derisory award for non-pecuniary damages to her late husband, even though the domestic courts had found that a serious violation of his privacy had been committed by the newspaper Lietuvos Rytas . This was not therefore a question of reputation, but a question of statutory ceilings which restricted the compensation obtainable to a very limited amount.

7. Lastly, taking into account the fact that, in my opinion, the Court ’ s jurisprudence is not clear enough to answer the question whether reputation, as a part of the notion of “private life” and protected under Article 8 of the Convention (which is a clear from our jurisprudence), is protected as a separate aspect or is included in the protection of personal identity, distinguishable from personal integrity (as the majority propose in paragraphs 22 and 23 above), that matter should be left open for the time being and, in my view, needs careful future consideration.