DISSENTING OPINION OF JUDGE MOTOC

To my regret, I am unable to follow the opinion of the majority. I consider that there has been a breach of Article 8, and that this case raises concerns about the protection of health, especially where a balancing exercise must be carried out with regard to Article 10 of the Convention. Even if I acknowledge the difficulty of this balancing act between Articles 8 and 10, sometimes described as squaring the circle, my assessment is that the basic principles of Article 8 – and ultimately human dignity – tend to be forgotten in the process. In my opinion, the Court has also missed an opportunity to clarify the sensitive issue of the right to reputation in its case ‑ law.

To summarize the case: t he medical data concerning the applicant was published in a newspaper, and originated in an expert report that had been requested 15 years previously. The expert report in question was ordered in a civil case that had a public character. The impugned article went so far as to mention that the relevant Austrian authorities were aware of the problem and that they were in the process of analysing the medical report. The article also mentioned that there was nothing in the expert ’ s behaviour over a decade of professional activity that could call into question her excellent reputation.

Article 8 of the Convention protects the confidentiality of medical data as a fundamental part of the intimacy of a human being (see the Court ’ s leading judgments in the cases of Z. v. Finland , 25 February 1997, Reports of Judgments and Decisions 1997-I, and M. S. v. Sweden , 27 August 1997 , Reports, 1997-IV; see also the leading ECJ judgment of 5 October 1994, X. v. Commission , Case C-404/92 P). In S. and Marper v. the United Kingdom ([GC], nos. 30562/04 and 30566/04, ECHR 2008) , the Court referred to the importance of the protection of personal data, including as they concern matters of health.

The Court has stated that Article 8 only admits the disclosure of confidential medical data in exceptional cases, either on the basis of the patient ’ s free and informed consent or of a decision taken by the legally competent authority, when such a decision is proportionate and necessary in a democratic society. In Panteleyenko v. Ukraine (no. 11901/02, 29 June 2006) the Court found unacceptable the unnecessary disclosure at a court hearing of confidential information regarding the applicant ’ s mental state and psychiatric treatment (§ 61):

“[T]he Court notes that the details in issue being incapable of affecting the outcome of the litigation (i.e. the establishment of whether the alleged statement was made and the assessment whether it was libellous; compare and contrast, Z v. Finland , cited above, §§t 102 and 109), the [domestic] court ’ s request for information was redundant, as the information was not ‘ important for an inquiry, pre-trial investigation or trial ’ .”

In the present case the Court has also decided in contrast with United States v. Squillacote [2001]), where the U.S. Court of Appeals for the Fourth Circuit upheld Sqillacote ’ s convictions. The appeal court agreed that the intercepted telephone conversations with Squillacote ’ s psychotherapist were privileged under the U.S. Supreme Court ’ s 1996 decision in Jaffee v. Redmond (518 U.S. 1). In Jaffee , the Supreme Court held that “confidential communications between a licensed psychotherapist and her patients in the course of diagnosis or treatment are protected from compelled disclosure”.

The special character of health data is not sufficiently taken into account in this case. The Court failed to decide which safeguards should apply to mental-health data and if the protection of the ‘ public interest ’ and, more specifically, the interest of the children under the applicant ’ s expertise could have been protected in different way. It is not enough that a complaint was made (even a criminal one: a complaint against the applicant was lodged 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).

In a sense, a similar psychological portrait as for Squillacote is admitted by the Court in this case, but with the difference that in our case, at least in the opinion of the majority, no harm was done, on the contrary.

On 7 February 2012 the Grand Chamber of the Court handed down its opinion in Von Hannover v. Germany (no. 2) ([GC], nos. 40660/08 and 60641/08 , ECHR 2012) . It sets out the essential criteria for balancing the right to privacy versus the right to freedom of expression. The first essential criterion is the publication ’ s contribution to a public debate. Truth is normally irrelevant in this respect. Truth is a defence in libel, irrespective of the existence of a supporting public interest. The Court has criticized the domestic authorities for ignoring the public interest of a publication in Someşan and Butiuc v. Romania ( no. 45543/04 , 19 November 2013). The Van Hannover criteria were recently reiterated by the Grand Chamber in Couderc and Hachette Filipacchi Associés v. France ([GC], no. 40454/07, ECHR 2015 (extracts)) and Bédat v. Switzerland ([GC], no. 56925/08 , 2 9 March 2016).

The Court has stated in the present judgment that a serious debate on the mental-health status of a psychological expert, evoked by reasoned suspicions, has to be considered as a debate of general interest, since an expert in court proceedings is required to meet standards of physical and psychological fitness.

Even if we agree with this affirmation, it is very difficult for us to understand how the disclosure of a medical condition, assessed 15 years previously, can contribute to any public debate. It is also in clear contradiction with the fact that nothing in the expert ’ s current behaviour required such a debate, because her “integrity was beyond reproach over a decade” (see paragraph 8 of the judgment); In fact, the contested article itself states that her integrity was beyond reproach “ until now” (emphasis added) .

The Court has let pass an opportunity to clarify the right to the protection of reputation under the Convention.

The Court links back to the arguments raised by the Chamber in Karakó v. Hungary (no. 39311/05, 28 April 2009), basing itself on that judgment ’ s finding (in § 22) that:

“Concerning the question whether or not the notion of ‘ private life ’ should be extended to include reputation as well, the Court notes that the references to personal integrity in the Von Hannover judgment reflect a clear distinction, ubiquitous in the private and constitutional law of several Member States, between personal integrity and reputation, the two being protected in different legal ways.”

If one takes Karakó and Polanco Torres and Movilla Polanco v. Spain (no. 34147/06, 21 September 2010) as an indication of the direction in which the Court is heading with regard to the right to reputation – which is far from obvious – the questions raised at the beginning of the above citation should be answered as follows: a right to reputation exists, but not in all circumstances. Only when the publication in question compromises the personal integrity of the person concerned. When exactly the latter threshold is met will have to be revealed in subsequent case-law. ( See George Letsas, E. Brems, J. Gerards, Shaping Rights in the ECHR, The Role of the ECHR in Determining the Scope of Human Rights , CUP, 2014, and S. Smet ’ s writings on the right to reputation under the Convention).

In Karakó v. Hungary (cited above, §§ 23 and 17), the Court established that:

“[R]eputation has only been deemed to be an independent right sporadically and mostly when the factual allegations were of such a seriously offensive nature that their publication had an inevitable direct effect on the applicant ’ s private life” [and that] “the purported conflict between Articles 8 and 10 of the Convention, as argued by the applicant, in matters of protection of reputation, is one of appearance only. To hold otherwise would result in a situation where – if both reputation and freedom of expression are at stake – the outcome of the Court ’ s scrutiny would be determined by whichever of the supposedly competing provisions was invoked by an applicant.”

However Polanco Torres , which was decided by a different Chamber than Karakó , attempts to connect the judgments in Chauvy and Others v. France (no. 64915/01, ECHR 2004 ‑ VI), Pfeifer v. Austria (no. 12556/03, 15 November 2007) and Karakó in a logical manner. Nonetheless, it then makes the bridge to Karakó by stating (in § 40):

“However, the factual allegations must be sufficiently serious and their publication must directly affect the private life of the person concerned. In order for Article 8 to be engaged, a publication liable to tarnish a person ’ s reputation must constitute an interference with that individual ’ s private life of such gravity that his or her personal integrity is compromised.”

The Court here introduces a threshold requirement for Article 8 to actually apply: Article 8 only comes into play if the publication constitutes a direct attack on a person ’ s private life of such gravity as to compromise his or her personal integrity. The crucial element here is the reference to personal integrity. In our opinion, it is clear that even by the lower criteria of personal integrity, the applicant ’ s right of reputation was not respected. In an era when the shift of medical records from paper to electronic formats has increased the potential for individuals to access, use, and disclose sensitive personal health data, it is important that the Court establish safeguards regarding the right to privacy. In this particular case it is clear to us that there was a disproportionate interference with the applicant ’ s right to privacy and, therefore, a violation of Article 8.

[1] See B.M . Zupančič, On Rights and On Privileges , Boston University International Law Journal ( to appear in 2016) .