JOINT DISSENTING OPINION OF JUDGES WOJTYCZEK AND KŪRIS

1 . This judgment has several major flaws. Firstly, the assurance that “ the rights guaranteed by [the] provisions [of Articles 8 and 10 of the Convention] deserve equal respect” (see paragraph 38 of the judgment), seems to be but a dead letter. The judgment is structured and reasoned in such a way that Article 10 is given pre-eminence over Article 8. Secondly, 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 emphasised. Thirdly, the reasoning is based on misrepresentation and misinterpretation of the facts. Some pertinent facts are passed over in silence, and certain important factual questions are not raised at all. Had they been raised explicitly and objectively, the overall finding could scarcely have been the same.

Combined together, these flaws have produced the most regrettable result – a one-sided, unbalanced and, it appears, fundamentally unjust judgment.

I

2 . As time goes by, there must be growing awareness of the increasingly pressing need to ensure more effective protection for personality rights, in particular privacy rights, vis-à-vis a progressively all-powerful media, acting under the aegis of “public interest” (often a simulated one), as well as vis ‑ Ã ‑ vis the impingement on individuals ’ privacy rights by those seeking to use the media as a tool for pursuing, to the detriment of privacy rights, whatever interests they may have. The Court should always be mindful of its mission to be at the forefront of raising and maintaining, through its case-law, this awareness. It should not depart from that task by becoming an uncritical protector of the “freedom to ... impart information” (Article 10), where the latter is defended as some “trump” freedom, to which many of the other rights and freedoms of men and women must give way.

3 . Very much in line with this mission of the Court is the recent Grand Chamber judgment in the landmark case B é dat v. Switzerland ([GC], no. 26925/08, 29 March 2016). It outlines and follows the Court ’ s earlier case-law (ibid., §§ 72 and 73). The judgment in B é dat was delivered only a few hours after the present case was deliberated in private by the Chamber; however, it was adopted more than two months prior to the deliberations in the present case (ibid., introductory section) and, as a Grand Chamber judgment in a resonant case, its contents were not unknown “inside” the Court at the time of these latter deliberations. Yet its findings were ignored.

In B é dat the Court defended, against the media, the personality rights of an individual who had allegedly not only committed an unlawful act which entailed serious consequences (including the loss of human life) and of which that person was accused in criminal proceedings, but who, at the time that act was committed, allegedly suffered mental-health problems which were aired to the public by a magazine. The distressing incident in which that person was involved had legitimately become the topic of a heated public debate even before an article which infringed upon the perpetrator ’ s privacy was published. In the present case, however, the applicant ’ s story was gratuitously trumpeted about in an article which implied that certain mental-health problems from which she had reportedly suffered in the distant past impeded her professional skills. As will be shown, there was no public debate at the material time regarding any decision which the applicant might have taken in her professional capacity or any other circumstance of her life, let alone any criminal investigation against her. In the B é dat case, Switzerland, by safeguarding the defendant ’ s rights under Article 8, had not violated the freedom of the media under Article 10. The present judgment is based on the idea that whatever rights the applicant might have had under Article 8 (related to her mental suffering when going through a difficult period of her life related to the alleged breach of promise of marriage) were superseded by the freedom of the media under Article 10, and that therefore the non-sanctioning of the latter by the Austrian courts was in line with Article 8. Thus, the Court ’ s attitude in the present case is in shockingly downright opposition to that in B é dat .

4 . How can the Court be so flagrantly ambiguous and simultaneously employ two competing axiologies and two incompatible lines of reasoning? This ambiguity is not a result of a gradual development of the Court ’ s case ‑ law, by which the Court reinterprets its case-law so that it is able to meet new challenges. It points to a much deeper problem, the task of looking into which (and of rectifying what is rectifiable) lies with the Grand Chamber.

5 . The present judgment is in stark opposition not only to B é dat (and the Court ’ s case-law upon which B é dat 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 B é dat v . Switzerland [GC], cited above, § 50, and the case-law 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 w hat 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 case-law, is to be considered not as a principle of the law of the Convention, but a mere decoration. Surprisingly, t he 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 non-commercial) 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. Germany , no. 59320/00, §§ 57, ECHR 2004 ‑ VI; Von Hannover (no. 2) , cited above, §§ 98; and S ö derman v. Sweden [GC], no. 5786/08 , §§ 78 et seq. , ECHR 2013). Moreover, Article 8 is not analysed almost anywhere else in the reasoning on the merits. Instead, the majority turns its attention to Article 10 immediately, stating that “[w]ith 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 protection granted by the State should be understood as one taking into consideratio n its obligations under Article 10”, and that “the protection of private life has to be balanced, among other things, against the freedom of e xpression guaranteed by Article 10” (see paragraphs 36 and 37 respectively).

Having thus paved the way for an examination under Article 10, the majority seems to ignore Article 8 as its own starting point. It goes on to deal with why this case, lodged as a “privacy case”, is primarily a “freedom of the media case”. An individual ’ s reputation, as something which is protected by the Convention, is mentioned twice in the judgment (in paragraphs 36 and 39), but not, however, as an autonomous value under Article 8 (compare, for example, Delfi AS v. Estonia [GC], no. 64569/09, § 137, ECHR 2015, and the case-law cited therein), but rather within the context of the second paragraph of Article 10. Thus, the reputation of the individual concerned is treated as something for which the media could not care less, unless there is (most likely ex ante ) “iron” evidence that an individual ’ s reputation will be unwarrantably damaged by a publication.

This reasoning culminates in the conclusion 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 paragraph 42). Paradoxically enough, the majority does not state that it sees the Court ’ s role also in determining whether the Austrian courts properly applied the principles inherent to Article 8, although even the cases referred to in paragraph 42 imply this (see Ruusunen v. Finland , no. 73579/10 , § 43, 14 January 2014, and Couderc and Hachette Filipacchi Associés v. France [GC], no. 40454/07 , § 93, ECHR 2015 ).

In a similar fashion, it is emphasised 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” and that “particularly strong reasons must be provided for any measure limiting access to information which the public has the right to receive” (see paragraph 39). Nowhere in the judgment will one find it affirmed that “the most careful of scrutiny” is required also in examining whether an individual ’ s privacy was infringed upon or that “particularly strong reasons” must be provided for interference with it. As to the first tenet, it is redundant to some extent, because in this case no sanction was imposed on the media.

Thus, the majority is of the view that the circumstances of this case call for engagement in one-sided scrutiny. Such is the methodological basis of the finding of no violation of Article 8.

11 . The Court has an abundant case-law requiring that examination of whether a given State complied with its positive obligation under Article 8 to protect an individual ’ s privacy receives the same diligence as that given to assessing whether freedom of expression under Article 10 allowed for a publication interfering with an individual ’ s reputation (see, for example, Ruusunen v. Finland , cited above , § 43, and B é dat v. Switzerland [GC], cited above, §§ 73 and 74, and the case-law cited therein ). However, one does not need to search for this case-law in order to state that such equal diligence is indispensable, because its obviousness commands no special argumentation. No balance between the rights protected under Article 8 and those protected under Article 10 is possible if only the latter are scrutinised and if only interference with the latter must be justified by “particularly strong reasons”, while the former are examined with less attention. There can be no fair balancing exercise if all the weight is placed on one side of the scales while the other is left almost unloaded, especially when the existing case-law contains many arguments in the latter ’ s favour.

III

12 . The balancing of rights under Articl e 8 against those under Article 10 necessarily involves the application of the so-called Von Hannover criteria (see, inter alia , Von Hannover (no. 2) [GC], cited above, §§ 109-13; Axel Springer AG v. Germany [GC], cited above, §§ 90 ‑ 95; and Couderc and Hachette Filipacchi Associ é s v. France [GC], cited above, §§ 90-93). These criteria are: contribution to a debate of public interest; the degree of notoriety of the person affected; the subject of the news report; the prior conduct of the person concerned; the content, form and consequences of the publication; and, where appropriate, the circumstances in which the photographs were taken (in the instant case this criterion is not relevant).

In the present judgment, these criteria have either not been applied (the degree of notoriety of the applicant; her prior conduct; the consequences of the publication) or been applied one-sidedly and superficially (the subject of the news report; the content and the form of the publication), thus limiting the Court ’ s scrutiny, in essence, to general considerations as to the analogy between the applicant, who at the material time was (and still is) a “psychological expert for court proceedings” (see paragraph 5), and “members of the judiciary” or “civil servants acting in an official capacity” (see paragraph 46).

13 . The Court has also stated that “where it examines an application lodged under Article 10, it will also examine the way in which the information was obtained and its veracity, and the gravity of the penalty imposed on the journalists or publishers” (see Couderc and Hachette Filipacchi Associ é s v. France [GC], cited above, § 93).

It appears that the transformation of th e present case from an “Article 8 case” into an “Article 10 case” allowed the majority to attach special weight to “the way in which the information was obtained and its veracity” (although the quoted excerpt from Couderc and Hachette Filipacchi Associés is not reproduced verbatim in the judgment). However, in the present case the scrutiny of “the way in which the information was obtained” is limited to ascertaining whether that information was obtained lawfully. The related question as to why it surfaced at all is not raised (see also §§ 20, 22-24 below).

Thus, the majority has given particular prominence to the fact that “the particular information on the applicant ’ s mental health ste mmed from the report of a court ‑ appointed expert acting in public proceedings before a civil court” and that “the published facts were true” (see paragraph 43), as well to the fact that “the applicant had never argued that the medical expert report at issue had been obtained illegally” and that “the truth of the content of the article ... was undisputed [by her] in the whole proceedings” (see paragraph 44; see also paragraph 33). But the applicant did not complain that the report cited in the article was untrue. Nor did she complain about the way in which the information was obtained. What she complained about was that the Austrian courts did not secure her right of privacy, which had been breached by the publication of the relevant report in an article which suggested that her mental suffering during a difficult period of her life (which, at the time of publication was already 15 years in the past, at the time of the last domestic court judgment – 17 years in the past and today – 23 years in the past) impeded her professional skills and which was aimed at damaging her reputation . This case is not about the “truth” but about the consequences entailed by reporting of that “truth”. In such circumstances exceptio veritatis appears of little, if any, relevance for the assessment of whether a fair balance has been struck between the rights protected under Articles 8 and 10.

14 . The majority has also attached particular weight to another criterion in balancing Article 10 rights against those protected under Article 8. It is not a Von Hanover criterion proper, but is an important one in cases where the impugned publication allegedly includes offensive and abusive attacks against the person concerned, such as hate speech or incitement to violence. However, this criterion is discussed in the context of the case-law dealing with criticism of politicians, civil servants and other persons “acting in their official capacity”, who are “subject to the wider limits of acceptable criticism”. The Chamber refers (in paragraph 46 ) to July and SARL Libération v. France (no. 20893/03 , § 74, ECHR 2008 (extracts)) and (in paragraph 47) to Janowski v. Poland ([GC], no. 25716/94, § 33, ECHR 1999 ‑ I). Having done so, it concludes that “[i]n the present case ... there is no need to weigh the requirements of ... protection [of the applicant, who acted in an official capacity, from offensive and abusive verbal attacks] 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” (see paragraph 47).

This reasoning is not supported either by the case-law cited or by any other part of the Court ’ s case-law. Nowhere in Janowski or July and SARL Libération , and nowhere else in the Court ’ s case-law, is it suggested that those “acting in their official capacity” are protected against infringement of their right of privacy only if the criticism of their activities or personalities involves “offensive or abusive verbal attacks”. Nowhere . Were such a c ase ‑ law in place, it would be most reprehensible. But no case-law exists which would allow one to conclude from the statement that those “acting in their official capacity” are “subject to the wider limits of acceptable criticism” that they are accordingly subject to any sort of “criticism”, provided that that criticism does not resort to “offensive or abusive verbal attacks” and thus becomes “non-acceptable”, and then to apply this tenet indiscriminately to every situation where an individual claims that his or her privacy has been infringed upon.

With regard to those “acting in their official capacity”, as with regard to all other persons, Article 8 requires much more than merely their protection against “offensive and abusive verbal attacks”. In a democracy, those “acting in their official capacity” are entrusted, under the law, with that “capacity” because the community believes that they can do more for the common good than those who are not entrusted with it. There are no grounds to assert that many of them in fact do not do more than the other members of the community. Maintaining that those not acting in any “official capacity” enjoy full-fledged protection of privacy under the Convention, whereas the privacy of those who “act in their official capacity” can be intruded upon by virtually anyone and in virtually any circumstances, provided that this intrusion is executed without “offensive and abusive verbal attacks”, is an awry interpretation of the very core of the idea of democratic government. Such an interpretation has no basis in the undisputed democratic requirement of citizens ’ supervision of politicians and other officials. Indeed, it turns things inside out: the idea that those whom the community has entrusted with an official function should not be rewarded with privacy incommensurable with the attention which the public may legitimately pay to their activities and their persons is distorted and downgraded to a belief that persons in an “official capacity” must be subject to a form of retribution for taking up that function whereby they enjoy virtually no privacy at all, so long as they are not verbally attacked in an “offensive and abusive” manner. By reducing the protection of the applicant ’ s privacy (and, if this judgment is followed in hypothetical future cases, that of other applicants “acting in their official capacity”) from interference by the media to mere protection against “offensive or abusive verbal attacks”, this judgment does a major disservice to the interpretation of Article 8, and to the methodology of interpretation of the Convention in general.

15 . P aragraph 43 makes brief reference to the fact that the information in question concerned the applicant ’ s health, which is “an important element of private life” (the Chamber refers to S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, § 66, ECHR 2008). Then, in paragraph 45, it is stated 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”, and that “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”; consequently, “[i]n 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”.

Here, the selectivity and off-handedness of the majority ’ s employment of the Court ’ s case-law manifests itself again – with the direst results for the applicant in this case, but also for many applicants in future cases. Such reasoning raises two open questions: (i) what information about the health of an individual who is a “psychological expert” or acts in some other “official capacity” can be disclosed by the media to the public? (ii) what are the “official capacities” whose holders do not (fully) enjoy, under the Convention, protection against disclosure by the media of information about their health? It appears that, in determining what information about an individual ’ s health can be lawfully disclosed, the Member States enjoy such a wide margin of appreciation that virtually any information about anything related to the health of a person in an “official capacity” can be made public by the media, provided that that information was not obtained illegally.

However, the Court was not so lenient in earlier cases. For example, in cases which involved HIV-infected persons it has held that “the protection of personal data, not least medical data, is of fundamental importance to a person ’ s enjoyment of his or her right to respect for private and family life as guaranteed by Article 8”; that “[r]especting the confidentiality of health data is a vital principle in the legal systems of all the Contracting Parties”; that “[i]t is crucial not only to respect the sense of privacy of a patient but also to preserve his or her confidence in the medical profession and in the health services in general”; that “[w]ithout such protection, those in need of medical assistance may be deterred from revealing such information of a personal and intimate nature as may be necessary in order to receive appropriate treatment and, even, from seeking such assistance, thereby endangering their own health and, in the case of transmissible diseases, that of the community”; and that “[t]he domestic law must therefore afford appropriate safeguards to prevent any such communication or disclosure of personal health data as may be inconsistent with the guarantees in Article 8” (see Z. v. Finland , no. 22009/93, § 95, Reports 1997-I; also see Armonienė v. Lithuania , no. 36919/02, § 40, 25 November 2008). One can hardly discern anything in these doctrinal statements which would allow them to be read as applicable only to persons not acting “in their official capacity”.

The Court has also held that “[t]he above considerations are especially valid as regards protection of the confidentiality of information about a person ’ s HIV infection”; that “[t]he disclosure of such data may dramatically affect his or her private and family life, as well as social and employment situation, by exposing him or her to opprobrium and the risk of ostracism”; that “it may also discourage persons from seeking diagnosis or treatment and thus undermine any preventive efforts by the community to contain the pandemic”; that “[t]he interests in protecting the confidentiality of such information will therefore weigh heavily in the balance in determining whether the interference was proportionate to the legitimate aim pursued”; and that “[s]uch interference cannot be compatible with Article 8 ... unless it is justified by an overriding requirement in the public interest” (see Z. v. Finland , cited above, § 96). Save the hint of the menace of a pandemic, the remainder of the cited considerations (and others not cited here) do not apply only to persons suffering from HIV or other contagious diseases, whereas the considerations as to the “affect[ing one ’ s] private and family life, as well as social and employment situation” and the “expos[ure of a person concerned] to opprobrium and the risk of ostracism” are equally applicable to those who have a history of mental-health problems .

16 . In such a doctrinal framework, it has been rather too easy to “prove” that the applicant ’ s rights were “not violated”, either by the media or by the courts which stood up for the defence of that media ’ s freedom. But this is not the correct framework. It is clearly not in line with the Court ’ s case-law.

17 . Most importantly, such reasoning allows for the stigmatisation of individuals with a history of mental-health problems – something that this Court should prevent and never encourage. Through this judgment, the Court itself has placed a stigma on people with a history of mental-health problems. It also has expressed its belief that mental-health problems, whatever they may have been, are there forever. Incurable. The judgment panders to prejudice.

18 . To sum up, the balancing exercise in this case has been limited to “proving” that: (i) issues raised by the applicant under Article 8 are to be examined from the standpoint of Article 10; (ii) an individual ’ s reputation has little autonomous value and is relevant only to the extent that the possibility of damaging it may not allow, under Article 10, certain information to be imparted; (iii) the Member States enjoy a wide margin of appreciation in determining what information about the health of a person who acts in an “official capacity” can be disclosed to the public by the media; (iv) given that the applicant was a “psychological expert”, disclosure of her mental-health history, by the very virtue of her occupation, contributes to a “debate of general interest” and is, therefore, protected by Article 10.

We cannot agree with such reasoning and the finding based thereon.

19 . None of the above arguments should be read as denying that under certain conditions certain information about the health of certain persons in an “official capacity” may be publicly disclosed by the media (and even by other sources). Moreover, there may be circumstances when such information has to be disclosed under the domestic legislation or even a Constitution (as, for example, in cases involving the health condition of a head of state or certain other senior officials), and the Convention erects no barrier against such disclosure. But if the indiscriminate, inflexible and non ‑ nuanced approach such as that upon which the present judgment is based prevails, any discussion of these sophisticated, non-clear-cut distinctions between different situations becomes pointless.

IV

20 . As already mentioned, the Chamber has addressed the issue of “the way in which the information was obtained” by the media in a somewhat limited way , because “the applicant had never argued that the medical expert report at issue had been obtained illegally” (see paragraph 44 of the judgment and § 13 above). In all probability, it was indeed not obtained illegally. Turning to the misrepresentation and misinterpretation of facts in this case, one cannot but note that the Government argued that the “[i]nformation 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” (see paragraph 34). The Chamber went further: it concluded that “as can be seen from the persons quoted in the article at issue and their respective statements ... , the authors of the article reported that the medical report had already provoked political reactions and thus participated in an ongoing public debate” and 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” (see paragraphs 43 and 45 respectively).

This is not true. It is as plain and simple as that. At the time of publication there was no public debate on the issue. The article did not contribute to an “ongoing” debate, because nothing of the sort was “ongoing” at the relevant time. On the contrary, it was intended to initiate a debate – not on the topic of “general and public interest” but, as will be shown, on the applicant ’ s personality.

That there was no “ongoing public debate” is obvious from the explicit statement in the article in question that “the integrity of the applicant was not debated upon for more than a decade – until now” ( Ihre integrit ä t stand ü ber eine Dekade nicht zur Debatte – bis jetzt ). This fragment has been omitted in paragraph 8, where the excerpt from the article is provided, but – speaking on its own behalf – the Chamber refers to it in paragraph 44: “[i]t was clearly stated that ... that the applicant ’ s integrity had not been questioned for more than a decade”. For the presumption of an “ongoing debate”, the words “not questioned” are far more comfortable than the words “not debated upon”. But they are not correct.

21 . The “member of the Green Party” quoted in the article (and referred to in paragraph 9) had acknowledged that the information about the expert report was provided to him “a few days ago” ( Mir wurde F ü rst-Pfeifers Gutachten vor wenigen Tagen zugespielt ), and that he immediately ( sofort ) filed a criminal complaint against the applicant. The Austrian courts did not bother at all to establish who had “provided” the information. Nor has the Chamber.

In such circumstances it is not unreasonable to presume that the “member of the Green Party” received the information from the journalists or publishers – in the same way as the information seems to have been provided by the latter to other persons (also mentioned in paragraph 9) who were asked to give their comments on the matter. This is only one version, a guess, but it is no less plausible than its alternatives: had the “member of the Green Party” received the information from other sources and shared it with the media, this would most probably have been mentioned in the article.

22 . Furthermore, there is no evidence that the applicant had herself provoked or otherwise attracted the attention of the media in any way. Although she has reportedly “examined over 3,000 married couples in custody-related disputes” (see paragraph 8), no information was provided to the Court to the effect that any one of those examinations was challenged, let alone that it gave rise to a “public debate”, to say nothing of a “serious” one. Even if some people discussed or otherwise exchanged opinions about the expert decisions made by the applicant (which would not be in the least surprising, given that over 3,000 married couples in custody-related disputes were concerned by these decisions, not to mention the professional community which may also have had an interest in these decisions), this does not amount to an “ongoing public debate”.

The judgment also speculates that “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”, and therefore, “[i]n 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” (see paragraph 45). But there is no indication that any of the decisions in which the applicant could have played a “decisive role” ever prompted any of the “parties to the proceedings [or] the general public [to express doubt] as to [her] mental fitness”.

23 . Another telling fact is that neither the name of the court where the applicant was certified as an expert nor the name of the individual about whom the article was published was anonymised. It is not the person concerned but the author of the article whose name was withheld (see also § 25 below). Had the article been intended to trigger a public discussion on a broader problem, such as what criteria of “mental fitness” must be applied to courts ’ “psychological experts” or as to whether this function can be entrusted to someone who has had mental-health problems in the past, anonymising the person concerned would not have impaired a “general” debate.

24 . No less telling is the fact that the article appeared not only on the Internet but also in the weekly newspaper “which was sent to every household of the district free” (see paragraph 7). The M ö lding district, where the applicant lives (see paragraph 5) and practices her profession (as her own webpage indicates), has twenty thousand inhabitants. This does not seem a very large market for someone who is probably not the only psychologist in the area.

25 . The Chamber is satisfied that “[b]eside a catchy sub-headline only facts and comments by third persons, clearly distinguished by quotation marks, were included” in the article and that “[t]hese facts were set out without any negative comment by the author” (see paragraph 44).

We respectfully disagree. First of all, the “author” of the article (at least in its Internet version) was not indicated. In this respect it was an editorial. Further, direct negative comments (such as “offensive and abusive verbal attacks”) were not required in order to do damage to the applicant ’ s reputation, because all of the information provided in the article about the applicant was negative. Nothing positive was written about her. The “catchy” headline invited the reader to a totality of information which depicted the applicant exclusively in negative terms . Had the “author” of the publication been guided by a more humane aim than stigmatising the applicant, an objective article would have included at least faint consideration of the possibility that the mental condition of a court-certified expert whose professional performance and integrity had not been “debated upon for more than a decade” may be not the same as it was fifteen years previously, when she was going through a difficult period in her life. Equally, the argument that the facts “were set out without any negative comment by the author” proves nothing: such comments were indeed there , uttered not “by the author” but by the other persons who had been asked to comment on the matter. Thus, the “member of the Green Party” rhetorically ratiocinated (this comment too has been omitted in paragraph 8): “In what country do we live, where people with a clearly dubious personality structure can decide the fate of thousands of parents and children” ( I n welchem Land leben wir, wenn Menschen mit einem offenbar zweifelhaftem Persönlichkeitsbild über die Schicksale von zigtausend Eltern und Kinder entscheiden können ). It makes no difference that this comment was not provided “by the author”.

26 . In the judgment, some factual information is nipped in the bud, after it has served to create a context unfavourable to the applicant. Here are few examples of such half-truths.

It is mentioned that the “member of the Green Party” had filed a criminal complaint against the applicant (see paragraph 9). What was the outcome of this initiative? It appears that it was nil, as both the applicant ’ s own webpage and that of the professional association of court experts continue to indicate her as a court-certified expert.

It is mentioned that “proceedings were initiated at the [regional court] to clarify whether the applicant was still fit to work as a court-appointed expert”, and that her “mental status was also set to be examined” (see paragraph 10). What were the results of these procedures? Again, nil.

And what about the “serious” public debate on the “general and public interest” to which the article had “contributed”? Has it brought about any tangible results? Have any changes been introduced in the courts ’ certification procedure for psychological experts? Do candidates for certification now have to “confess” their medical history (which was not the case when the applicant was certified), and if so, how much of it? The Government have not provided information on this matter. This proves, albeit indirectly, that the positive value of the media ’ s “contribution” to the alleged “serious debate” was zilch.

27 . In the face of these factual circumstances, the impugned article has to be seen not as a “contribution to a debate of general and public interest” but as a gratuitous attack on the reputation of the applicant.

28 . Even so, this would not necessarily have amounted to a violation of the applicant ’ s rights under Article 8 had there been a pressing social need to raise publicly the issue of her professional skills. But the absence of any “ongoing public debate” regarding the applicant, as well as of any complaint against her which could legitimately call for the media ’ s attention towards her ( see §§ 20 and 22 above respectively), argue for the contrary conclusion.

29 . Judges should not speculate as to what really prompted the media to delve into the archives for materials on a civil case about a matter which occurred fifteen years previously and was not destined to be reopened. Still, given that the Austrian courts did not look into this matter, there remain grounds for conspiracy theories (professional market competition? personal revenge? creating a basis for re-examining one of the 3,000 cases? etc.) which cannot be rejected outright.

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30 . In the Court ’ s case-law the media is often described as a “public watchdog”. This judgment blurs the difference between a watchdog and a hound dog.

For a court of human rights, the prey should also matter.