O.G. and Others v. Greece: Disproportionate Disclosure of Medical Data

by

 Dimitrios Papantoniou

CyJurII Overseer

Citation Number: (applications nos. 71555/12 and 48256/13)

The case of O.G. and Others v. Greece, decided by the European Court of Human Rights (ECtHR) on January 23, 2024, is a pivotal judgment concerning the right to respect for private life under Article 8 of the European Convention on Human Rights (ECHR) and the sensitive issue of public health measures intersecting with data protection.

The core of the case stemmed from actions taken by Greek authorities in 2012. Following the emergence of an alleged HIV epidemic, the Deputy Prosecutor of the Athens First Instance Court issued a directive to the police and the Hellenic Center for Disease Control and Prevention (HCDCP). This directive ordered the compulsory testing and subsequent publication of data, including full names, photographs, residential addresses, and medical status (HIV-positive), of individuals, primarily female sex workers, who had tested positive for HIV. The stated aim of this extraordinary measure was to protect the "rights and freedoms of others," specifically public health, amidst the perceived epidemic.

The Applicants and the Interference

The four applicants, identified by the initials O.G. and others, were among the individuals whose highly sensitive personal data was publicly disclosed. This disclosure was made via a press conference and subsequently through a prominent display on the HCDCP website. The legal basis cited by the Greek authorities for this interference was Article 2 and Article 3 of Law no. 2472/1997, which concerns the protection of individuals with regard to the processing of personal data.

The ECtHR unequivocally considered the public disclosure of an individual's HIV status, along with identifying information and photographs, to constitute an extremely serious interference with their private life under Article 8. Medical data, due to its intensely personal and confidential nature, is afforded high protection by the Convention. Disclosing such information can lead to severe social stigma, discrimination, and psychological harm, especially when associated with vulnerable groups like sex workers.

The Court's Assessment of Article 8

For an interference with Article 8 to be compatible with the Convention, it must satisfy three criteria:

•     It must be in accordance with the law (have a domestic legal basis).

•     It must pursue one or more of the legitimate aims listed in paragraph 2 of Article 8 (e.g., the protection of health or the rights and freedoms of others).

•     It must be necessary in a democratic society (be proportionate to the legitimate aim pursued).

While the Court accepted that the measure had a legal basis (Law no. 2472/1997) and pursued a legitimate aim (protection of public health), the central issue was the necessity and proportionality of the action.

Disproportionate Nature of the Disclosure

The ECtHR heavily scrutinized the proportionality of the measure, particularly the method and extent of the public disclosure. The Court held that the Greek authorities had failed to strike a fair balance between the public interest in protecting health and the applicants' fundamental right to respect for their private lives.

•     Excessive Nature of Disclosure: The authorities disclosed not only the medical diagnosis but also highly specific identifying data, including photographs and addresses. The Court found that there was no compelling public health necessity that could justify such a far-reaching and destructive disclosure of all this information. Less intrusive measures, such as anonymous contact tracing, targeted warnings, or public health campaigns emphasizing safe practices, were available and should have been prioritized.

•     Stigmatization and Discrimination: The action not only breached the applicants' privacy but also led to their public shaming, ostracization, and severe damage to their professional and personal lives. The Court recognized the prejudicial association between the HIV-positive status, sex work, and the sensationalist coverage the case received, which compounded the harm.

Conclusion and Finding of Violation

The European Court of Human Rights ultimately concluded that the public disclosure of the applicants' medical information and identity details pursuant to the prosecutor’s directive amounted to a disproportionate interference with their right to respect for their private life. Consequently, the ECtHR found that Greece had violated Article 8 of the ECHR.

The judgment serves as a critical affirmation of the principle that even in the face of public health concerns, state actions must adhere strictly to the principle of proportionality. It underscores the paramount importance of medical confidentiality and sets a high bar for any state seeking to publicly override an individual’s privacy rights, especially in relation to highly sensitive health information like HIV status.