June 16, 2016
By Stijn Smet
In Fürst-Pfeifer v Austria, the majority of the Fourth Section of the ECtHR ruled that the applicant’s right to private life was outweighed by the freedom of expression of an online publication and offline newspaper. In one of the fiercest and most poignant dissenting opinions I have read to date, judges Wojtyczek and Kūris label the majority judgment as “a one-sided, unbalanced and … fundamentally unjust judgment” that “panders to prejudice” against persons, like the applicant, “with a history of mental-health problems”. In this post, I consider the majority judgment in Fürst-Pfeifer as symptomatic of a broader problem in the Court’s case law: one-sided balancing in the resolution of conflicts between human rights. I tackle this problem, along with others, in my forthcoming book Resolving Conflicts between Human Rights: The Judge’s Dilemma (Routledge, 2016).
The applicant in Fürst-Pfeifer, Ms Gabriele Fürst-Pfeifer, is a psychiatrist who also works as a court expert in custody and contact-rights-related disputes. She is specialised in the psychological examination of children and adolescents. In 2008, an article in an online publication and weekly regional newspaper disclosed details on Ms. Fürst-Pfeifer’s mental health history. The article mentioned her previous “[s]uffering from up-and-down mood swings, panic attacks, suicidal thoughts and hallucinations, together with paranoid ideas – but working as a court-appointed expert”.
The article was based on a psychological report drawn up fifteen years earlier, in the course of civil proceedings unrelated to Ms. Fürst-Pfeifer’s professional life. The article did not provide updated information on her mental health status. It did, however, include comments by a member of the Green Party, who had filed a criminal complaint against Ms. Fürst-Pfeifer after the psychological report had been disclosed.
Ms. Fürst-Pfeifer sued the newspaper and website, claiming damages for infringement of her intimate personal sphere. In two sets of proceedings, the Vienna and Innsbruck Court of Appeal found in favour of the website and newspaper, respectively. Ms. Fürst-Pfeifer then brought her case to Strasbourg, where the majority of the Fourth Section ruled against her.
One-Sided Balancing in Resolving Human Rights Conflicts
In its judgment, the majority of the Fourth Section reiterates the Court’s established principle that, where the right to private life and freedom of expression have to be balanced against each other, both rights in principle deserve equal respect. Yet, after stating the principle, the majority takes a somewhat bizarre turn in finding that “notwithstanding the fact that the applicant claims a violation of Article 8 … the Court has to determine whether the principles inherent to Article 10 were properly applied by the Austrian courts” (para. 42). Although the case was brought to Strasbourg under the right to private life, the majority would thus examine it from the viewpoint of freedom of expression. To the best of my knowledge, Fürst-Pfeifer is the second judgment in which the Court does this. The first was Karakó v Hungary. In both judgments, the ‘transformation’ of an Article 8 case into an Article 10 case was the precursor to a finding of no violation of the right to private life.
In Fürst-Pfeifer, three dissenting judges critique the majority’s construction of the balancing exercise. Judge Motoc is relatively kind. In her dissent, she notes that “[in the] balancing act between Articles 8 and 10 … the basic principles of Article 8 – and ultimately human dignity – tend to be forgotten”. Judges Wojtyczek and Kūris are less forgiving in their dissent. Right off the bat, they lament that “[t]his judgment has several major flaws … [which] have produced the most regrettable result – a one-sided, unbalanced and, it appears, fundamentally unjust judgment”. They go on to note that
The [majority] judgment is structured and reasoned in such a way that Article 10 is given pre-eminence over Article 8 … 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.
Here, the Polish and Lithuanian judge lay the finger on what is arguably a festering wound in the Court’s approach to balancing. In resolving conflicts between human rights, such as at issue in Fürst-Pfeifer, the Court tends to resort to open ended balancing. Although this grants the Court’s judges great flexibility in tailoring the balancing test to the particular circumstances of the case at hand, therein also lies the danger. Judges, as evidenced in the majority judgment in Fürst-Pfeifer, can more or less freely decide which factors they will include in the balancing exercise, and – equally importantly – which ones they will leave out.
There is a genuine threat, here, that the Court’s balancing exercise is constructed to suit judges’ subjective preferences on the outcome of the case at hand. Judges who favour free speech may be prone to construct the balancing exercise in its favour. Judges who favour the right to privacy, conversely, may be led to do the opposite. The result, in any event, is one-sided balancing. Which is not much of balancing at all.
In Fürst-Pfeifer, Judges Wojtyczek and Kūris identify the problem as follows:
Article 8 is not analysed almost anywhere … Instead, the majority turns its attention to Article 10 immediately … the majority is of the view that the circumstances of this case call for engagement in one-sided scrutiny … [But 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.
The Court, in part of its case law on human rights conflicts, has shown acute awareness of the risk that balancing exercises would be constructed in a one-sided manner. Cognizant of the risk, the Court’s Grand Chamber has infused balancing between Article 8 and Article 10 rights with some structure, by setting out a number of balancing criteria in Von Hannover v Germany (No. 2) and Axel Springer v Germany. Those balancing criteria are intended to ensure that both rights receive equal respect in balancing. Yet, in subsequent cases, including Fürst-Pfeifer, the Von Hannover and Axel Springer criteria are not applied consistently. This leads to incoherence in the Court’s case law.
Judges Wojtyczek and Kūris point towards such incoherence, when they lament the majority’s ignoring of Bédat v Switzerland:
The judgment in Bédat … was adopted more than two months prior to the deliberations in the present case … 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.
From the perspective of the dissenting judges, “the Court’s attitude in the present case is in shockingly downright opposition to that in Bédat”. Importantly, Bédat raised somewhat analogous issues to those at stake in Fürst-Pfeifer, with one key difference: the Grand Chamber had ruled against freedom of expression (for a critical view on Bédat, see this post by Dirk Voorhoof). A core element of the Court’s reasoning in Bédat was the concept of ‘responsible journalism’. “Surprisingly”, the dissenting judges in Fürst-Pfeifer find, “the notion of responsible journalism is not mentioned at all in the present judgment”.
The Polish and Lithuanian judge further point to a number of other balancing factors that were deemed relevant by the Court in previous judgments, but are disregarded by the majority in Fürst-Pfeifer. One such element is the centrality of the protection of health data to the right to private life. The dissenting judges find that “the selectivity and off-handedness of the majority’s employment of the Court’s case-law manifests itself again” when the majority in Fürst-Pfeifer fails to reference cases like Z v Finland and Armonienė v Lithuania, on the disclosure of persons’ HIV status.
The increased protection the Court offers to the right to private life of HIV-positive persons in those earlier judgments, the dissenters argue, does “not apply only to persons suffering from HIV or other contagious diseases [but is] equally applicable to those who have a history of mental-health problems”. In the eyes of the dissenting judges, by failing to adequately evaluate the impact on Ms. Fürst-Pfeifer’s right to private life of the public disclosure of health data contained in a 15-year old psychological report, the majority judgment “allows for the stigmatisation of individuals with a history of mental-health problems [and] panders to prejudice”. Underscoring their dismay at the majority’s judgment one final time, judges Wojtyczek and Kūris conclude their dissent on an eloquent, but fierce note:
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.
In writing this post, I have not been concerned – personally – with the correct outcome in Fürst-Pfeifer. Regardless of whether the majority reached the correct outcome or not, its judgment is symptomatic of how the Court keeps struggling to find a consistent and convincing approach to human rights conflicts. This general problem has been the focus of my research over the past years. In analysing the Court’s case law on human rights conflicts, I have identified four practical obstacles to the balancing of human rights: A) a threat of subjectivity, which is particularly prone to arise in open ended balancing; B) a risk that judges overzealously rely on their intuitions in balancing; C) lack of coherence within and across balancing decisions; and D) persistence of ‘preferential framing’ – or skewing – in the construction of balancing exercises.
The majority judgment in Fürst-Pfeifer, as judges Wojtyczek and Kūris point out, trips over at least three of those obstacles (A, C and D). This does not necessarily mean that the majority reached the wrong outcome. But it does mean that its reasoning fails to convince. The answer, I argue in Resolving Conflicts between Human Rights: The Judge’s Dilemma, lies in the introduction of a dedicated framework for the resolution of human rights conflicts. The framework I propose includes a structured balancing test, designed to overcome practical obstacles to balancing (as well as theoretical challenges to balancing). As such, it aims to assist judges the world over – not just those at the ECtHR – in tackling human rights conflicts.