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15.07.2016

ECHR: Published psychological expertise lawfully

by Katrin Welker
On 17 May 2016, The European Court of Human Rights (ECtHR) decided that the publication of a psychological expertise from 1993 concerning a registered psychological expert for court proceedings is not a violation of art. 8 European Convention of Human Rights (ECHR, Applications no. 33677/10 and 52340/10).

The applicant is a psychiatrist and works as a registered psychological expert for court proceedings in custody and child abuse cases since 2000. After an article was published in an online and a printed version of a newspaper, containing excerpts of a psychological assessment of her mental health from the year 1993, she brought two actions the online publication and against the printed publication.

The applicant had sought damages under section 8a of the Media Act at the St. Pölten Regional Court on 14 January 2009 concerning the online publication. The Court allowed the applicants action and ordered the publisher to pay damages in the amount of 5,000 euro and bear the costs of the proceedings.

The publisher appealed against the decision.Thereupon, on 30 November 2009, the Vienna Court of Appeal set aside the judgment of the lower court, and dismissed the applicant’s action. The Court of Appeal stated that the content of the article was true, and that it only repeated true information that had not been disputed by the applicant. Therefore the publication was admissible.

In the meantime, the applicant brought an action with the Innsbruck Regional Court on 7 April 2009 concerning the printed publication. On 2 October 2009, the Court ordered the publisher to pay damages in the amount of 5,000 euro. The court found that the average reader would understand the article as stating that the applicant was incapable of being an expert in custody proceedings because of her own mental health impairments in 1993 and that this placed in question the quality of the applicant’s work so far. Again, the publisher appealed against the decision.

Thereupon, on 11 February 2010, the Innsbruck Court of Appeal granted the appeal, set aside the judgment of the lower court, and dismissed the applicant’s action. In contrast to the Regional Court it found that the article did not indicate that the applicant was not competent to exercise her profession as a psychological expert.

In her application to the ECtHR, she argued that the Austrian courts had violated their duty to protect her right to private life when dismissing her actions for compensation for the unlawful publication of matters relating to her private life. But, the ECtHR concluded that the publication of the articles did not violate art. 8 ECHR.

The ECtHR held that the article concerned an important element of the applicant’s private life and compromised her in public but dismissed the compensation claims because the published facts were true and had a direct connection to the public sphere. Furthermore, the content of the article was balanced, informing on facts and not only intended to satisfy public curiosity. It was clearly stated that the psychological assessment of the applicant dated back to 1993 and that the applicant’s integrity had not been questioned for more than a decade. Moreover, the applicant had never argued that the medical expert report at issue had been obtained illegally. The Court further notes that a serious debate on the mental health status of a registered psychological expert for court proceedings 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.

The Court stated that, when it comes to public criticism, members of the judiciary should not be treated on an equal footing with politicians, as they do not lay themselves open to close scrutiny of their every word and deed to the extent to which the latter do. Nonetheless, civil servants acting in an official capacity may be subject to wider limits of acceptable criticism than ordinary citizens.

Katrin Welker works as a scientific researcher at the Institute of European Media Law (EMR), Saarbrücken/Brüssel.

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The decision of the European Court of Human Rights is available here.

German version





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