CEDH · CASELAW;REPORTS;ENG — 19 octobre 1992

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                    EUROPEAN COMMISSION OF HUMAN RIGHTS                      Application No. 16632/90                           Richard COLMAN                               against                         the UNITED KINGDOM                      REPORT OF THE COMMISSION                     adopted on 19 October 1992   TABLE OF CONTENTS                                                             Page   I.    INTRODUCTION      (paras. 1 - 12). . . . . . . . . . . . . . . . . . .1 - 2        A.    The Application           (paras. 2 - 4). . . . . . . . . . . . . . . . . . .1        B.    The Proceedings           (paras. 5 - 7). . . . . . . . . . . . . . . . . . .1        C.    The Present Report           (paras. 8 - 12) . . . . . . . . . . . . . . . . . .2   II.   ESTABLISHMENT OF THE FACTS      (paras. 13 - 29) . . . . . . . . . . . . . . . . . 3 - 11        A.    The particular circumstances of the case           (paras. 13-26). . . . . . . . . . . . . . . . .3 - 8        B.    Relevant Domestic Law and Practice           (paras. 27-29). . . . . . . . . . . . . . . . 8 - 11   III. OPINION OF THE COMMISSION      (paras. 30 - 51) . . . . . . . . . . . . . . . . .12 - 16        A.    Complaints declared admissible           (para. 30). . . . . . . . . . . . . . . . . . . . 12        B.    Points at issue           (para. 31). . . . . . . . . . . . . . . . . . . . 12        C.    As regards Article 10 of the Convention           (paras. 32 - 41). . . . . . . . . . . . . . .12 - 14        D.    As regards Article 13 of the Convention           (paras. 42 - 49). . . . . . . . . . . . . . .14 - 15        E.    Recapitulation           (para. 50 - 51) . . . . . . . . . . . . . . . . . 16   Opinion dissidente de M. F. MARTINEZ, rejoint par MM. C.A. NØRGAARD, E. BUSUTTIL, A. WEITZEL, C.L. ROZAKIS et L.L. LOUCAIDES pour sa deuxième partie . . . . . . .17 - 19   Dissenting opinion of Mr. F. ERMACORA . . . . . . . . . . . 20   Dissenting opinion of Mrs. G.H. THUNE . . . . . . . . . . . 21   APPENDIX I      : HISTORY OF PROCEEDINGS . . . . . . . . . . 22   APPENDIX II     : DECISION ON ADMISSIBILITY                  OF THE APPLICATION . . . . . . . . . .23 - 30   I.    INTRODUCTION   1.    The following is an outline of the case, as submitted to the European Commission of Human Rights, and of the procedure before the Commission.   A.    The Application   2.    The applicant is a citizen of the United Kingdom born in 1949 and resident in York.   He is a doctor in private general practice with a particular interest in the holistic approach to health care.   He was represented before the Commission by Messrs. Bindman and Partners, Solicitors, London.   3.    The application is directed against the United Kingdom.   The respondent Government were represented by their Agent, Mrs. A. Glover, of the Foreign and Commonwealth Office.   4.    The case concerns restrictions placed on the applicant by his professional body, the General Medical Council, relating to the advertising of his medical practice.   It raises issues under Articles 10 and 13 of the Convention.   B.    The Proceedings   5.    The application was introduced on 11 May 1990 and registered on 30 May 1990.   After a preliminary examination of the case by the Rapporteur, the Commission considered the admissibility of the application on 7 September 1990.   It decided to give notice of the application to the respondent Government and to invite the parties to submit written observations on its admissibility and merits.   The Government's observations were submitted, after an extension of the time-limit, on 21 December 1990, to which the applicant replied on 12 February 1991.   6.    On 5 September 1991 the Commission declared the application admissible.   The text of the decision on admissibility was sent to the parties on 30 September 1991 and they were invited to submit such further evidence or additional observations as they wished.   No further observations were submitted by the parties.   7.    After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement.   In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.   C.    The Present Report   8.    The present Report has been drawn up by the Commission in pursuance of Article 31 para. 1 of the Convention and after deliberations and votes in plenary session, the following members being present:             MM.   C. A. NØRGAARD, President                S. TRECHSEL                F. ERMACORA                E. BUSUTTIL                G. JÖRUNDSSON                A. S. GÖZÜBÜYÜK                A. WEITZEL                J.-C. SOYER                H. G. SCHERMERS                H. DANELIUS           Mrs. G. H. THUNE           Sir   Basil HALL           MM.   F. MARTINEZ                C. L. ROZAKIS           Mrs. J. LIDDY           MM.   L. LOUCAIDES                J.-C. GEUS                M. P. PELLONPÄÄ                B. MARXER   9.    The text of this Report was adopted on 19 October 1992 and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   10.   The purpose of the Report, pursuant to Article 31 of the Convention is:        i)    to establish the facts, and        ii)   to state an opinion as to whether the facts found disclose           a breach by the State concerned of its obligations under           the Convention.   11.   A schedule setting out the history of the proceedings before the Commission is attached hereto as Appendix I and the Commission's decision on the admissibility of the application as Appendix II.   12.   The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.   ESTABLISHMENT OF THE FACTS        A.    The particular circumstances of the case   13.   The applicant has been a registered medical practitioner since 1975.   When working in the National Health Service (N.H.S.) his experience led him to hold opinions which accord with the "holistic" approach to health care.   This involves not just treating patients, but trying to help them to explore the cause of their problems and to take more responsibility for their remedy.   14.   In 1985 he established a practice in York named the "Holistic Counselling and Education Centre".   He took various measures to make available the information that this practice had been established, and to attract patients, namely:        (a)   In August 1985 writing to 140 general practitioners in and      about York.        (b)   In August 1985 leaving his business card and a letter of      explanation with the Family Practitioners Committee, the      Citizen's Advice Bureau, and the Central Library in York.        (c)   In May 1986 supplementing the information in (b) above      with a practice information sheet.        (d)   Attempting to place an entry in the "Yellow Pages"      telephone directory identifying himself as a private practitioner      (British Telecom refused, their policy being not to make a      distinction between private and N.H.S. practitioners).        (e)   In September 1985 being interviewed by the press, which      resulted in a rebuke from the chairman of the Local Medical      Committee.        (f)   In November 1985 requesting the chairman of the Local      Medical Committee to circulate to local practitioners      information about his practice, to which he received no reply.        (g)   Thereafter making other fruitless efforts to publicise      information, in particular by proposing, without success,      to give talks.   15.   He then considered the insertion of advertisements in local newspapers.   Recognising that this did not appear to accord with the Guidance issued by the General Medical Council (G.M.C.), he wrote on 30 March 1987 seeking its advice on the question of practice advertising and professional ethics.   He also requested it to review the existing rules.   He stated that he would like to advertise in the press, under the heading "General Medical Practice (Private)", his name, professional qualifications, the name of his Centre, its address, telephone number, the words "For information, Advice, Private Medical Care" and directions to telephone for a practice information sheet. The G.M.C. is the governing body of the medical profession.   16.   On 18 May 1987 the applicant was informed by the G.M.C. that it declined to review its recently amended guidance and that to advertise in the local press could lead to disciplinary action against him for the improper promotion of his practice.   However he was also informed that he could make available at public libraries and other information centres details about his practice, alongside that given by other doctors in the area.   17.   The press limitation on doctors' advertising did not extend, for example, to private hospitals, over which the G.M.C. has no control. Private clinics were thus entitled widely to publicise their services. Virtually all other professions in the United Kingdom, including dentists, had lifted such advertising restrictions on their members.   18.   On 10 August 1987 the applicant applied by way of judicial review for a declaration that the G.M.C.'s decision and policy on the dissemination of information by doctors was unlawful on the grounds, inter alia, that it was disproportionate for the following reasons:        a) it went much further than was required to secure the         legitimate protection of medical practitioners and         patients, and        b) it was unlawful because, inter alia, it was a restraint         on the applicant's freedom of expression contrary to         Article 10 of the Convention.   19.   In November 1987 the Secretaries of State for Social Services, Wales, Northern Ireland and Scotland presented to Parliament a White Paper proposing a loosening of the remaining restraints on doctors' rights to advertise their services.   20.   On 25 November 1988 the Divisional Court rejected the applicant's application, awarding costs against him.   It held that the G.M.C. had exercised its discretion reasonably.    It noted, inter alia, that the extent to which doctors should be permitted to advertise their services was a sensitive issue, about which there was professional and social controversy, and on which the courts should not intervene so as to substitute their view for that of the G.M.C., the professional body concerned.   To allow advertising might be harmful to patients and their families who may be vulnerable when they are ill.   Advertisements could be misleading, the best and wealthiest advertisers not necessarily being the best doctors.   The fact that the G.M.C. cannot control the advertisements of private clinics and hospitals, as it has no disciplinary jurisdiction over them, cannot of itself make the G.M.C.'s conduct irrational.   Nor was it irrational if the G.M.C., adhering at that stage to what it regarded as sound and well-tried values for the medical profession, was somewhat out of step with most other professions and several overseas medical professions, with the notable exceptions of Canada, Belgium, France, Greece and the Netherlands at the material time.   It did not consider that the press advertising restriction was an undue restraint of trade, as such considerations (if relevant at all) should not be applied with the same rigour to a profession,   where its standards of professional conduct and ethics are in question, as they would to the normal business world.   21.   On the question of the applicability of Article 10 of the Convention the Divisional Court held as follows:        "Assuming that Article 10 protects an individual's right to      communicate professional and commercial information and that the      G.M.C.'s guidance interferes with that right, the question arises      whether, under the European Convention on Human Rights and      English law, the G.M.C. has to show that that interference was      necessary, that is whether there was a pressing social need for      it.   See the majority judgment in the 'Sunday Times' case, ECHR      judgment of October 27, 1978, series A, no. 30, (1979) EHRR 245;      Lingens v. Austria, (1986) 8 EHRR 407, and the Barthold case,      ECHR judgment of March 25, 1985, series A, no. 90.        However, it is by no means clear that the ECHR jurisprudence      would go so far as to require a professional body like the G.M.C.      to demonstrate a pressing social need for its guidance against      advertising in order to justify it as a protection of health or      morals or for the protection of the rights of other doctors and      patients under Article 10 (2).   The European Court of Human      Rights said in paragraph 59 of its majority judgment in the      Barthold case that the initial responsibility for securing      compliance with the Convention lies with the individual      Contracting States, and that Article 10 (2) leaves each of them      with a margin of discretion, albeit not an unlimited margin.        The extent to which that discretion is considered by the European      Court of Human Rights to be limited is illustrated in its      decision in that case.   It involved a challenge by a veterinary      surgeon of a decision of a German court that he had broken a rule      of professional conduct prohibiting advertising.   The nature of      his infringement had not been direct commercial advertising, as      proposed by Dr. Colman, but his involvement in the inclusion of      his name and details of his practice in a press article written      by a journalist.   In concluding that the rule infringed      Article 10, the court, by a majority, clearly took the view that      the advertising element in the article was secondary to the      principal purpose of the article, which was to deal with a matter      of public interest, the problem of a night veterinary service in      Hamburg.   The court's prime concern was to prevent the      application of a restriction which risked, in the words of the      judgment:        '...discouraging members of the liberal professions from      contributing to public debate on topics affecting the life      of the community if ever there is the slightest likelihood      of their utterances being treated as entailing, to some      degree, an advertising effect ...'        and which would        'hamper the press in the performance of its task of      purveyor of information and public watchdog.'        See paragraph 58 of the majority judgment.        Thus, the court did not decide that commercial or professional      advertising was protected by Article 10.   The concurring judgment      of Judge Pettiti (at pages 31-32 of the report) lamenting that      the court had not gone on to consider that issue merely      underlines the difficulty for this court in looking to the      Barthold case for guidance ...        ...(The) proper approach here ... is for the applicant to      establish that the G.M.C. has in its guidance to him unreasonably      interfered with his freedom of speech so as to render that      interference unlawful.   For the reasons (that have been) given,      the applicant has not established that unlawfulness either in the      form of Wednesbury unreasonableness or of unreasonableness in the      ordinary and natural meaning of that term."   22.   In the meantime on 24 May 1987 the G.M.C.'s rules on doctors' advertising were referred to the Monopolies and Mergers Commission (the M.M.C.).   In March 1989 the M.M.C.'s report, which concluded that the G.M.C.'s rules were not in the public interest, was presented to Parliament.   The M.M.C. recommended that the G.M.C. revise its guidance to permit advertising by general practitioners, subject to the two broad principles that such advertising should not be likely to bring the profession into disrepute or be such as to abuse the trust of patients or exploit their lack of knowledge.   The contents of advertisements should be limited to factual information and should not be published so frequently as to cause a nuisance to potential patients or put them under pressure.   The Secretary of State for Trade and Industry accepted the M.M.C.'s report and asked the Director General of Fair Trading to negotiate with the G.M.C. to implement the M.M.C.'s recommendation further to relax the restrictions on the publication of factual information about doctors.   23.   On 6 December 1989 the Court of Appeal dismissed the applicant's appeal against the decision of the Divisional Court, again awarding costs against the applicant.   The Court of Appeal held that the G.M.C. had not been unreasonable or disproportionate in the exercise of its discretion at the time.   It also rejected the applicant's arguments under Article 10 of the Convention as follows, in the judgment of Lord Justice Gibson:        "... it is a principle of construction of United Kingdom      statutes, now too well established to call for citation of      authority, that the words of a statute passed after the      treaty has been signed and dealing with the subject matter      of the international obligation of the United Kingdom, are      to be construed, if they are reasonably capable of bearing      such a meaning, as intended to carry out the obligation,      and not to be inconsistent with it ...        It is not clear ... that, in this case, there is, in the      same sense, any identifiable subject matter within section      35 of the (Medical Act 1983) which can properly for this purpose      be regarded as the subject matter of any international      obligation of the United Kingdom under the Convention.   In any      event, (to use that principle of construction) ... for the      purpose of construing primary legislation, where there is      ambiguity, is to do no more than to determine the meaning of the      legislation passed by Parliament.   That has always been the      proper task of the court.   To use that principle to justify the      reviewing by the court of the substantial validity of the action      or decision in question, which is otherwise lawful      as within the powers given, and to carry out that review      on the basis of the court's judgment as to what amounts      to 'conditions, restrictions or penalties as ... are      necessary in a democratic society ... for the protection      of health or morals ...' within Article 10 para. 2 is to      misapply it for a purpose for which it was ... plainly      not intended."   24.   The Court of Appeal refused to accept the notion of "proportionality" as a separate ground for seeking judicial review, rather than a facet of "irrationality", which, if found, would vitiate any administrative decision.   To accept it as a separate notion would quickly lead to courts forgetting their supervisory role and substituting their view of what was proportionate for that of the administrative decision-making body.   It concluded as follows, in the judgment of Lord Donaldson, MR:        "We live in a period of very rapid change in attitudes and      perception of where the balance of the public interest lies in      the context of advertising by members of professions.   Only a few      years ago any form of advertising, even if only informational in      content, would have been unthinkable.   Today it is widely      accepted, although still subject to some restrictions in addition      to the standards set by the British Code of Advertising Practice,      namely that advertising must be legal, decent, honest and      truthful.   It is certainly a tenable view that the medical      profession has more reason than most other professions to      restrict advertising because of the special relationship of trust      between doctor and patient which lies at the heart of any      effective system of health care and because of the vulnerability      of patients suffering ill health.   The problem is where the line      is to be drawn.        The General Medical Council (the G.M.C.) re-examined this      question in November 1986, only a few months before Dr Colman      sought the president's advice, and concluded that advertising by      doctors should be confined to factual information of a non-      promotional character and that it should be disseminated in ways      which would ensure that no one doctor obtained any promotional      advantage over other doctors practising in the same field of      medicine or geographical area.   The expectation was that this      would be achieved by all doctors making informational material      available at their surgeries and at local libraries and other      information centres.   Dr Colman is in the same position as other      doctors in relation to his surgery, but he has come up against      an obstacle in that local libraries and information centres will      not give out information about his practice unless all other      doctors in private, as contrasted with national health service,      practice are willing for similar information to be provided about      their practices.   This is a condition which cannot be met.   Hence      his application for special dispensation to allow him to place      a very modest advertisement in the local press, which was refused      in May 1987.        I make no secret of the fact that I have some sympathy for      Dr Colman.   There is no suggestion that he is a "quack" and,      whether rightly or wrongly, he genuinely believes that holist      medicine as practised by him provides a service to patients which      is different from and often better than, that provided by the      generality of medical practitioners.   In these circumstances it      is understandable that he should feel that the public interest      requires that, the normal channels for dissemination of factual      information about his services having broken down, he should be      allowed to use some other channel.   Against this has to be set      the old, but true, adage that hard cases make bad law.   If the      G.M.C. authorised departure from the normal rule in Dr Colman's      case, how many other cases would also have to be treated      exceptionally, where would the line be redrawn and, indeed, could      the line be held at all?        Parliament has entrusted the resolution of these competing      considerations to the G.M.C. and not to the courts.   Accordingly,      it is quite beside the point to consider whether I would have      reached the same conclusion.   It is even possible that the      president of the G.M.C. might not do so today, when he has the      benefit of the recommendations of the Monopolies and Mergers      Commission report 'Services of Medical Practitioners' (Cm 582      (1989)), which must cause the G.M.C. to re-examine the guidance      contained in the Blue Book, although it need not necessarily      cause it to change its mind.   However, that is beside the point      for present purposes.   What matters is whether the advice given      in May 1987 was irrational.   Despite the fact that the guidance      given in the Blue Book failed to prevent some of the anomalies      to which counsel for Dr Colman drew attention, for example the      'glossy' promotional advertising by private hospitals and clinics      over which the G.M.C. has little or no control, I cannot regard      the guidance contained in the Blue Book as irrational.   Nor can      I so regard the decision of the president to refuse to make an      exception in the case of Dr Colman."   25.   On 4 January 1990 the applicant lodged a petition with the House of Lords for leave to appeal.   It was rejected on 26 February 1990.   26.   In the same month as the introduction of the application to the Commission, in May 1990, the G.M.C. revised its advertising rules to allow, inter alia, the publication in the press of factual information about doctors' services.        B.   Relevant domestic law and practice   27.   The G.M.C. is a statutory body, presently governed by the Medical Act 1983, with powers under section 35 of that Act to assist doctors in matters of professional conduct and discipline.   It maintains a register of medical practitioners who are entitled to practise in the United Kingdom.   It exercises disciplinary functions over registered practitioners and may ultimately remove a practitioner from the register for serious professional misconduct. It is thus responsible for ensuring that standards of professional conduct are maintained.   28.   In November 1986, after 15 months of consultations with many interested and influential bodies in the medical profession and outside, the G.M.C. had proposed new guidance, in a document called the Blue Book, partially relaxing previous rules on advertising.   While accepting that the public should have access to information about doctors and their services, the guidance indicated that self-promotion or canvassing by doctors by advertising in the press or otherwise could amount to serious professional misconduct attracting disciplinary proceedings.   The material passages in Part II of the Blue Book were as follows:        "58.   Patients are entitled to protection from misleading      promotional advertising or similarly improper competitive      activities among doctors ...        "59.   Good communication between doctor and patients ... is      fundamental to the provision of good patient care, and the      ethical dissemination of relevant factual information about      doctors and their services is strongly to be encouraged.      This facilitates an informed choice by patients seeking      medical care ...        "60.   The provision of information about medical services      provided by a doctor is nevertheless a sensitive matter, in      relation to which the conduct of the doctor may be      questioned either on ethical grounds or on the grounds that      it is incompatible with the principles which govern      relationships between members of a profession.   The      paragraphs below outline three particular areas where such      problems may arise.        'The use of promotional material      61.   The medical profession in this country has long      accepted the convention that doctors should refrain from      self-promotion, not least because the doctor who is most      successful at achieving publicity may not be the most      appropriate for a patient to consult.   Furthermore, people      seeking medical attention, and their families, are often      particularly vulnerable to persuasive influence.   In such      circumstances, the use of promotional advertising is not      only a breach of professional etiquette but could be a      source of danger to the public, in extreme cases raising      illusory hopes of a cure.        62.   Doctors have a duty to be satisfied, if they are aware      that material about them is to be published, that it will      conform, both in its content and in the manner of its      presentation, with the standards set out in this pamphlet.      A professional offence may arise from the publication in      any form of material commending the professional      attainments or personal qualities of a particular doctor,      or improperly drawing attention to his practice, if that      doctor has either personally arranged for such publication      or has instigated, sanctioned or acquiesced in its      publication by others.   The decision whether publication of      this kind of material amounts to serious professional      misconduct will take account of the motive of the doctor      concerned in arranging for or agreeing to publication, and      also of the other circumstances of each case such as:        (a) the nature, content and presentation of the material;      (b) whether the material seeks to suggest that the doctor      has particular abilities as compared with other doctors;      (c) whether the material is published in a manner likely to      attract patients to, or to promote professional advantage      or financial benefit of the doctor ...        Canvassing and other improper arrangements to extend a      doctor's practice      63 ... The distribution of advertising material to members      of the public, or advertising in the press or other media,      with the intention of attracting prospective patients to a      particular doctor or service, may be construed as      canvassing on the part of the doctor ...'"   29.   Some of the same ground was covered in Part III of the Blue Book which gave guidance on standards of professional conduct and on medical ethics.   The following guidance was given under the heading "Self-promotion: circumstances in which difficulties most commonly arise":        "92.   Paragraphs 58-62 ... draw a distinction between the      proper provision of factual information about doctor's services,      to which no exception can be taken, and activities amounting      to self-promotion, which may raise a question of serious professional misconduct.   The following paragraphs discuss various circumstances in which difficulties may arise if a distinction is not carefully observed.             Notices or announcements by or about doctors      93.   In order to make an informed choice of general      practitioner, prospective patients need to have ready      access to accurate, comprehensive and well-presented      information about the doctors practising in their area.      Lists of such practitioners including factual information      about the practitioners and their qualifications, the      facilities available and practice arrangements in each      case, should be distributed widely for the benefit of      members of the public, making full use of public libraries,      community health councils and other centres of local      information.   Any such material should however be published      by an impartial body which stands to gain no financial      advantage.   As far as is practicable, material published in      this way should provide the same items of information about      each doctor and practice and, where the material is      published by a body other than a Family Practitioner      Committee or Primary Care Division or a Health Board, every      general practitioner in the relevant area, whether      practising in the National Health Service or independently,      should be eligible for inclusion in such a list.        Notices or announcements displayed, circulated or otherwise      made public by or on behalf of a doctor in connection with      his professional practice must be confined to factual      information of a non-promotional nature... It is acceptable      for general practitioners to inform patients of their      services and practice arrangements, provided that the      material circulated makes no claim as to the quality of the      service or the doctor's personal qualities or level of      performance.   Such material may be available at doctor's      surgeries, local libraries and to the information centres,      for issue individually to a doctor's existing patients or      to persons inquiring about the doctor's practice or the      services available, but should not be distributed to other      persons or be released in bulk to inquirers.   Any attempt      by a doctor or his agent to use the circulation of such      material to gain an advantage over local colleagues, or to      canvass their patients may well raise a question of serious      professional misconduct ..."   III. OPINION OF THE COMMISSION   A.    Complaints declared admissible   30.   The Commission has declared admissible the applicant's complaints that the G.M.C.'s policy, before May 1990, about advertising in the medical profession, as it affected him, was in breach of Articles 10 and 13 (Art. 10, 13) of the Convention.   B.    Points at issue   31.   The following are the points at issue in the present application:   -     whether the advertising restrictions to which the applicant was      subject by the G.M.C. were in violation of his freedom of      expression ensured by Article 10 (Art. 10) of the Convention;   -     whether the applicant had effective remedies, pursuant to      Article 13 (Art. 13) of the Convention, under English law for his      Article 10 (Art. 10) claim.   C.    As regards Article 10 (Art. 10) of the Convention   32.   The relevant part of Article 10 (Art. 10) of the Convention reads as follows:        "1.   Everyone has the right to freedom of expression.   This      right shall include freedom to hold opinions and to receive      and impart information and ideas without interference by      public authority and regardless of frontiers ..."        2.    The exercise of these freedoms, since it carries with      it duties and responsibilities, may be subject to such      formalities, conditions, restrictions or penalties as are      prescribed by law and are necessary in a democratic      society, ...   for the protection of health or morals, (or)      for the protection of the reputation or rights of others      ..."   33.   The Commission found in its decision on admissibility of 5 September 1991 that the advertising restrictions placed by the G.M.C. upon the applicant constituted an interference with his freedom of expression by a public authority (Appendix II p. 23 below).   The parties do not dispute that the interference was lawful and that, in principle, it pursued legitimate aims, namely the protection of the health of patients and the rights of others, namely other doctors.   The key question in the case is whether the interference was necessary in a democratic society within the meaning of Article 10 para. 2 (Art. 10-2) of the Convention.        Necessary in a democratic society   34.   The applicant accepts that the protection of patients from misleading or manipulative advertising is a pressing social need which comes within the protection of health referred to in Article 10 para. 2 (Art. 10-2).   He also accepts that a certain measure of protection should be afforded to doctors from unfair competition from their professional colleagues, such safeguards being necessary for the protection of the rights of others, also envisaged by Article 10 para. 2 (Art. 10-2).   However, in his view, the protection afforded by the G.M.C.'s advertising rules before May 1990 was wholly disproportionate, imposing a blanket and indiscriminate ban on all announcements of the kind sought by the applicant.   He contends, therefore, that the interference with his freedom of expression by the G.M.C.'s guidance on advertising was not necessary and was in breach of Article 10 (Art. 10) of the Convention.   35.   The Government deny that the case discloses any violation of Article 10 (Art. 10) of the Convention and, in any event, they point out that between November 1987 and May 1990 they consistently moved towards, and succeeded in securing, a relaxation of the G.M.C.'s advertising restrictions.   36.   The Commission refers to the constant case-law of the European Court of Human Rights "that the Contracting States have a certain margin of appreciation in assessing the existence and extent of the necessity of an interference, but this margin is subject to a European supervision" (Eur. Court H.R., Markt Intern Verlag GmbH and Klaus Beermann judgment of 20 November 1989, Series A no. 165, pp. 19-20, para. 33).   The Markt Intern case concerned unfair competition in trade matters and the Court commented that such a margin of appreciation is all the more important in commercial matters and that the Convention organs must confine their review "to the question whether the measures taken on a national level are justifiable in principle and proportionate" (ibid. p. 20, para. 33).   37.   The Commission notes that in the Barthold case the Court also implicitly recognised that some limitations on advertising for the liberal professions, such as veterinary surgeons, may be justified to protect the rights of other practitioners, although that was not the real issue in the case, which concerned Mr. Barthold's professional contribution in a newspaper interview to a matter of public interest and which only had the secondary effect of giving publicity to his own practice (Eur. Court H.R. , Barthold judgment of 25 March 1985, Series A no. 90, p. 26, para. 58).   38.   The Commission has regard to the particular facts of the present case:    the applicant was seeking to attract patients.   His concern was therefore one of advertisement of his professional activity, a clearly commercial matter.   There was not a blanket restriction on doctors' advertising at the material time.   He was affected only by the prohibition on advertising in newspapers. From 1987 the matter was under active review by the Government,   the M.M.C. and subsequently the G.M.C..    As the Court of Appeal observed in this case, the question of advertising in the liberal professions has undergone significant developments recently:   "Only a few years ago any form of advertising, even if only informative in content, would have been unthinkable.   Today it is widely accepted, although still subject to some restrictions ...".    Moreover, at the material time, other High Contracting Parties to the Convention maintained similar restrictions over such advertising (p. 4, para. 20 above.   Cf. also No. 14622/89, Hempfing v. Germany, Dec. 7.3.91, to be published in D.R. 69).   39.   In the light of these considerations, and having regard to the duties and responsibilities attaching to the freedoms guaranteed by Article 10 (Art. 10) of the Convention, the Commission finds that it cannot be said that the advertising policy of the G.M.C. went beyond the margin of appreciation left to national authorities.   It is obvious that views may differ as to whether an earlier relaxation on press advertising for the medical profession would have been appropriate. However, the Convention organs should not substitute their own evaluation for that of the competent medical authorities in the present case where those authorities, on reasonable grounds, had considered the restriction to be necessary at the material time (mutatis mutandis Eur. Court. H.R., Markt Intern Verlag GmbH and Klaus Beermann judgment of 29 November 1989, Series A no. 165, p. 21, para. 37).   40.   The Commission is therefore satisfied that the G.M.C.'s professional guidance preventing the applicant from advertising his private medical practice in the press was not disproportionate to the legitimate aims of protecting patients' health, as well as the righ