CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 2 mai 2000

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text-indent:14.2pt } .s145CCEB3 { margin-top:12pt; margin-bottom:36pt; text-indent:14.2pt } .s6E97E8AF { margin-top:12pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt } .s583D00FA { margin-top:0pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt } .s26FF04E7 { margin-top:0pt; margin-left:17.3pt; margin-bottom:0pt } .s5D08A2D6 { margin-top:0pt; margin-left:34.6pt; margin-bottom:0pt } .s8DCCCE3B { margin-top:0pt; margin-left:17pt; margin-bottom:12pt; text-indent:-17pt } .sA918FEC8 { margin-top:12pt; margin-bottom:12pt; text-indent:14.4pt } .s4B9804AC { margin-top:12pt; margin-bottom:0pt; text-align:left } .s20D584F3 { width:28.88pt; display:inline-block } .sBED625AF { width:257.63pt; display:inline-block } .sF9961500 { width:22.22pt; display:inline-block } .sDC60C15D { width:243.95pt; display:inline-block } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s3133A7C8 { font-family:Arial; color:#0069d6 }     THIRD SECTION     CASE OF BERGENS TIDENDE AND OTHERS v. NORWAY     (Application no. 26132/95)     JUDGMENT     STRASBOURG     2 May 2000       FINAL     02/08/2000         In the case of Bergens Tidende and Others v. Norway, The European Court of Human Rights (Third Section), sitting as a Chamber composed of:   Sir   Nicolas Bratza , President ,   Mr   J.-P. Costa ,   Mrs   F. Tulkens ,   Mr   W. Fuhrmann ,   Mr   K. Jungwiert ,   Mr   K. Traja , judges ,   Mr   S. Evju , ad hoc judge , and   Mrs   S. Dollé , Section Registrar , Having deliberated in private on 9 November 1999 and 6 April 2000, Delivers the following judgment, which was adopted on the last ‑ mentioned date: PROCEDURE 1.     The case originated in an application (no. 26132/95) against the Kingdom of Norway lodged on 13 September 1994 with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Bergens Tidende , a Norwegian newspaper and two Norwegian nationals, Mr Einar Eriksen, the newspaper's former editor-in-chief, and Mrs Berit Kvalheim, a journalist employed by the paper (“the applicants”). The applicants complained that a judgment by the Norwegian Supreme Court in defamation proceedings instituted by a cosmetic surgeon, requiring them to pay him approximately 4,700,000 Norwegian kroner damages and costs (plus interest), had unjustifiably interfered with their right to freedom of expression under Article 10 of the Convention. 2.     On 16 October 1996 the Commission (Second Chamber) decided to give notice of the application to the Norwegian Government (“the Government”) and invited them to submit their observations on its admissibility and merits. The Government submitted their observations on 20 December 1996 and 16 June 1997, to which the applicants replied on 21   March and 22 August 1997 respectively. 3.     Following the entry into force of Protocol No. 11 to the Convention on 1   November   1998 and in accordance with the provisions of Article 5 § 2 thereof, the application was examined by the Court. 4.     The application was allocated to the Third Section of the Court (Rule   52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1. Mrs H.S. Greve, the judge elected in respect of Norway, withdrew from sitting in the case (Rule 28). The Government accordingly appointed Mr S. Evju to sit as an ad hoc judge (Article 27 § 2 of the Convention and Rule 29 § 1). 5.     By a decision of 29 June 1999 the Chamber declared the application admissible [1] . Furthermore, the Chamber decided to hold a hearing in accordance with Rule 59 § 2. 6.     The Registrar received the applicants' claim for just satisfaction on 23   September 1999 and the Government's comments on 18 October 1999. On 27 and 28 October 1999 respectively she received the Government's and the applicants' pre-hearing briefs. 7.     The hearing took place in the public in the Human Rights Building, Strasbourg, on 9 November 1999.   There appeared before the Court: (a)     for the Government Mr   F. Elgesem , Attorney, Attorney-General's Office     (Civil Matters),   Agent , Mr   K. Kallerud , Senior Public Prosecutor,     Office of the Director of Public Prosecutions, Mr   M. Goller , Attorney, Attorney-General's Office     (Civil Matters),   Advisers ; (b)     for the applicants Mr   A.C.S. Ryssdal , Advokat , Mr   P.W. Lorentzen , Advokat .   Counsel .   The Court heard addresses by Mr Ryssdal and Mr Lorentzen for the applicants and Mr Elgesem for the Government, and also their replies to questions put by the Court and by several of its members individually. 8.     On 11 and 17 November 1999, the Government and the applicants variously produced additional observations and documents in response to certain questions put at the hearing. Moreover, on 14 and 15 December 1999, the applicants and the Government filed additional observations in the light of the Court's judgment in another case. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE A.     Background to the case 9.     The first applicant, Bergens Tidende, is a daily newspaper published in Bergen and is the largest regional newspaper of the Norwegian west coast. The second applicant, Mr Einar Eriksen, is its former editor ‑ in ‑ chief and the third applicant, Mrs Berit Kvalheim, is a journalist employed by the newspaper. They were born in 1933 and 1945 respectively and both live in Bergen. 10.     Dr R. is a specialist in cosmetic surgery and received his training at Haukeland Hospital in Bergen in the 1970s. As from 1975 he worked in this field from his privately owned practice in Bergen. 11.     On 5 March 1986, following the opening of a new clinic by Dr R., Bergens Tidende published an article, prepared by the third applicant, which described Dr R.'s work and the advantages of cosmetic surgery. Subsequently, the newspaper was contacted by a number of women who had undergone such operations by Dr R. and who were dissatisfied with the treatment received. B.     Publications giving rise to the defamation proceedings against the applicants 12.     On 2 May 1986, Bergens Tidende published on its front page a text entitled “Beautification resulted in disfigurement”, which included the following passage: “   'We paid thousands of [Norwegian] kroner [NOK] and the only thing we've achieved is to be disfigured and ruined for life.' Bergens Tidende has spoken with three women who have an almost identical story to tell about their experiences at a cosmetic surgery clinic in Bergen. All three underwent breast surgery at the clinic, and the results were extremely bad. They are warning other women.” The caption under a photograph of a woman's bust read: “This woman was tormented by her large breasts. Surgery resulted in disfiguring scars and a disproportionate bust.” The inside of the paper contained, together with a large colour photograph showing a woman's breasts with disfiguring scars, the following article: “ Women ruined for life after 'cosmetic surgery'         'I paid NOK 6,000 and all I achieved was disfigurement.'         'To say that I bitterly regret it is an understatement. I've been ruined for life and I'll never be “my old self” again.'         'The pain was unbearable. I was transformed into an anxious, trembling nervous wreck in the course of a few days, and I thought I was going to die.' These are the statements of three different women interviewed by Bergens Tidende . All of them, aged between 25 and 40 and resident in Bergen, share in common the fact that they have undergone cosmetic breast surgery, performed by Dr R., one of two specialists in plastic surgery with a private practice in Bergen. The three women – who wish to remain anonymous – describe their ordeal as nightmarish. They all have internal and external scarring which they will have to live with for the rest of their lives.         'I was operated on in May 1984, following a long period of great psychological problems due to a small and sagging bust after I had had several children', said one of the women, who is 29 years old. Swollen bust         'Immediately after the operation, I noticed there was something quite wrong. One of my breasts had swollen up and become hard and painful. When I consulted Dr R., he trivialised the whole matter, saying that it was nothing to worry about. It would pass. And I was told that under no circumstances should I contact another doctor.         For a whole week I lay at home in a dazed state of pain, swallowing Paralgin Forte [2] tablets as though they were sweets. I have never in my life taken anything stronger than Dispril [3] on the odd occasion. My bust swelled to grotesque proportions and was so sore that the slightest touch was unbearable.         It was impossible to get hold of Dr R. He had gone to Paris, and I didn't dare contact another doctor. It's only now that I realise how foolish I was.' Squirting prosthesis The doctor's receptionist finally managed to get in touch with Dr R. on the telephone in Paris, explained the gravity of the situation and made him travel directly from the airport to his office the night he returned home.         'By this stage the pain was unbearable, and both then and later on I reacted strongly to the hard-handed treatment I was subjected to', says the woman. 'As I lay on the operating table, he ripped open the stitches and tore out the implant without any form of anaesthetic, so the contents of the prosthesis squirted over him, his assistant and myself.' The woman's husband sat in the waiting-room, listening to her cries of pain. The whole treatment took thirteen minutes, and there was no talk of a rest afterwards. It was just a case of getting up from the operating table and walking out. Three months' sick-leave 'He gave us the feeling the whole time that we were an inconvenience and were taking up his precious time.' It took a long while for the woman to recover from her traumatic experience. She had to report sick and was away from work for three months. Her husband, too, was obliged to apply for leave from his job to stay at home with her for a period of time. During this time she had a prosthesis in only one breast, and despite the daunting experiences she had been through, she contacted Dr R. again to have a silicon implant inserted in the empty breast. This was repeatedly postponed, and she finally decided to terminate her relationship as a client of Dr R. and contact another plastic surgeon. In doing so, she demanded her money back for the unsuccessful operation, and after some discussion he agreed to reimburse half of the costs. No receipt He did so with the following comment: 'I hope now that we are finished with one another for good. You have never been a patient here, and I have never seen you.' Since then the woman has also reacted to the financial side of Dr R.'s activities. She had been informed beforehand that she would have to present the money – NOK 6,000 – in cash, on the day of the operation. Even a cheque would be unacceptable, and she was not given a receipt. Painful infection A 37-year-old woman tells a similar story.         'I wanted an operation because I have great problems with a disproportionately large, heavy bust that has caused shoulder and back pains. I checked first to see whether it was possible to get this type of operation done at the hospital, but was told that at best it would mean waiting a year. I therefore ended up at Dr R.'s.         The result was four-five months of continuous, painful infection and a bust that looked much uglier than it had done earlier.         I paid NOK 6,000 and the only thing I achieved was to do damage to myself', says the woman. Disfiguring scars The infection that occurred immediately after the operation caused the stitches to open, and septic sores developed. Once the wounds had healed, she was left with abnormally large, disfiguring scars, which prompted her to contact Dr R. again and ask for the damage to be repaired. He agreed to do so, and a new operation was scheduled. The woman, who had asked for three days off work in connection with the surgery, arrived at the agreed time but found the doors to the clinic locked. She returned home with the matter unresolved. When she called him privately later that day he was impertinent and threatened her directly, and the conversation ended with him slamming down the receiver, the woman said. After this she gave up and she has not had any contact with the doctor since. Waste         'But it was a bitter feeling when I realised that I had invested a lot of time, money and mental energy in something that turned out to be not only a complete waste, but also did more harm than good.' This woman, too, says that she was asked to pay cash and was not given any form of receipt. Deformed The third woman interviewed by Bergens Tidende had a similar experience. The woman, 31, says: 'I had a breast augmentation done and the very first day after the operation I discovered that something was wrong with one of my breasts. It was uneven, pointed to the right, and was rock-hard and sore. It's still hard and uneven almost two years later. I feel completely deformed, and I dare not even think of showing myself on a beach, for example.' Complications This woman, too, experienced complications after surgery, chiefly in the form of constantly recurring so-called 'capsules', i.e. part of the prosthesis hardened and had to be broken up again.         'After a few weeks I just couldn't take any more. By then I had lost confidence in Dr   R. and his methods of treatment', says the woman, who, like the two other women, reacted to his demand that she pay cash without being given a receipt. She is also deeply shocked about what she feels is the offhand and nonchalant way in which she was treated on her first visit to the doctor's.         'I had an appointment at 12.30 p.m., but was told that he didn't have time to see me. Would I rather come back another day? But I was so mentally prepared that it would be done that day – and I simply refused to go. It was now or never.' Bitter regrets         'After three or four hours' wait I finally lay on the operating table, and if there is anything I now regret, then it's precisely that.         The operation was unsuccessful, I understood that immediately. After two or three weeks of repeated “treatment” and half-hearted attempts by the doctor to remedy the blunder, however, I couldn't stand it any more and I gave up.' Unbearable The woman has made no effort to get back the money she paid. 'I couldn't bear the thought of fighting – because I knew it would be a struggle.' Almost two years have passed since the calamitous surgery, but she has not yet been able to collect herself sufficiently after the frightening experience and contact another doctor to have her breasts operated on again.         'I have to do it – because I can't live with this. However, the bad experiences are so ingrained that I haven't collected myself enough to do anything about it', she says.” 13.     Articles similar to the one of 2 May 1986 quoted above, accompanied by large colour photographs, were published on 3, 5, 7 and 9   May 1986, describing in detail how women had experienced their situation after allegedly failed operations and a lack of care and follow-up by Dr R. Some of the articles invited women to complain to the health authorities and to institute proceedings against the doctor. One article stated that the Health Directorate ( Helsedirektoratet ) would commence an investigation, that Dr R. might lose his licence to practise and that the question of a police investigation had been raised. Brief summaries of the contents of the articles may be found in the judgment of 23 March 1994 of the Norwegian Supreme Court ( Høyesterett) quoted in paragraph 24 below. 14.     In an editorial of 12 May 1986, entitled “Medical power”, Bergens Tidende stated: “It is of course with satisfaction that we see health authorities now carry out a thorough investigation of the activities which the Bergen breast doctor has been performing for many years. This is the least that one could expect. It must be in the interest of all – the patient's, the authorities' and also the doctor's – to have clarified whether the methods of treatment applied meet professional standards. The fact that the case has serious implications also because it has aesthetic, moral, but also basically down-to-earth economic consequences, serves to underline the need for a thorough investigation. It is nevertheless a puzzle that it took a whole series of newspaper articles, powerful notices and assertive journalism to make the medical health bureaucracy react. Complaints to the doctors' own professional association have not produced results and neither the regional nor the municipal health authorities have taken any initiative before the patients, in despair, came out with their stories of suffering to Bergens Tidende . Again one wonders what is required in order to break down the strong professional ties within the medical profession and to preserve the interests of patients. In any event, it justifies the reflection that patients, over many years, feel threatened by fear of 'reprisals'. Irrespective of whether this fear is imaginary or real, it is telling of the relationship of power which still exists between doctors and patients. Breaking down the myths and building confidence are crucial conditions for the process of healing. Therefore it is important to have a full clarification of the case in all its dimensions. Unfortunately the initiative for this investigation does not originate from the medical milieu, but from the weakest party: the patient.” C.     Other articles 15.     On 2 May 1986 Bergens Tidende had also produced, at the bottom of the page containing the impugned article mentioned in paragraph 12 above, an article containing an interview with Dr Gunnar Johnsen, plastic surgeon at a Bergen hospital, entitled “Demanding form of surgery – Small margins between success and failure”. It stated:         “   'There are borderline cases, but generally speaking aesthetic/psychological surgery, what is commonly referred to as “cosmetic surgery”, does not fall within the public health-care authorities' responsibility.' ...         – 'Do many have unrealistic expectations and believe that all their problems will be solved if their imperfections are straightened out?'         'It happens and then their problems are more on the psychological than the physical level.' Information is important         'Not least for this reason it is important that the patients – or the clients ... rather – are properly informed in advance. Frequently, information must be provided in order to reduce the expectations – so that the person concerned does not feel disappointed with the result. But having said this, most people are satisfied with their new appearance ...         You have the same problems, primarily with respect to the dangers of bleeding and infection, in this field as in any other field of surgery, and the general requirements as to precautionary measures and medical safety are as strict.' Technically demanding         'Aesthetic surgery can be technically demanding and there are often small margins between success and failure. Not least for this reason it is important to possess wide experience of plastic surgery from ordinary hospitals before one starts one's own private business as a specialist. But the transfer of experience may be occurring in both directions.' ...” The issue of 2 May 1986 also contained an interview with Dr R. entitled “There will always be dissatisfied patients”, which read:         “   'I cannot comment on these particular cases, in part because I am bound by the general obligation of confidentiality, in part because I do not know the details of the cases. All I can say is that within plastic surgery, like in any other field of surgery, there is a certain margin of error and there will always be dissatisfied patients.' It is Dr R. who states this to Bergens Tidende in his comments to the complaints from the three women.         'Complications in the form of hardened breasts ... occur in about 15 to 20% of all breast operations and the risks of bleeding and infection are the same in plastic surgery as in any other form of operation. But I should like to emphasise that all patients are informed in advance of the possible dangers and of the fact that the result of the operation is not always as successful as one might expect', says Dr R., who moreover underlines that three dissatisfied patients is a relatively small number when compared to the great size of his business which he has been running over the past few years ...” According to the third applicant's statement to the High Court in the proceedings mentioned below, when approaching Dr R. in connection with the above interview, she had invited him to comment on the three women's allegations and had informed him that they had given their consent to release him from his duty of confidentiality. He had replied that he was bound by his general duty of medical confidentiality, which applied irrespective of whether the patient had given such consent. Dr R., in those proceedings, denied the third applicant's version of the facts, stating that he was absolutely sure that she had not informed him that the patients had lifted his duty of secrecy. 16.     On 14 May 1986 Bergens Tidende published two articles commenting on the critical articles published earlier that month. In the first article, entitled “The press – the pillory of today”, Ms K. Thue recalled the history of witch-hunts during the Middle Ages and described Bergens Tidende 's coverage of the accounts by Dr R.'s dissatisfied patients as a modern form of witch-hunt conducted by the press. She stated that the doctor was unable to reply; being prevented by his duty of secrecy he could not refer to the large group of patients who were satisfied and could not substantiate that they constituted the vast majority of patients. The second article, written by Mr R. Steinsvik and entitled “There are always two sides to a case”, stated: “We are concerned with the recent focusing on Dr R.'s business. We are a group of thirty persons who all have in common that we are or have been patients of Dr R. We are satisfied with the treatment received, not least the service and care provided during post-surgery treatment and follow-up. A case always has two sides and by these words we hope that we have conveyed our views on and experiences of this doctor.” D.     Administrative complaints by former patients of Dr R. 17.     Following the publication of the articles by Bergens Tidende , seventeen former patients submitted complaints against Dr R. to the health authorities. On 8 October 1986 Mr Eskeland, the medical expert appointed to evaluate the situation, concluded that there was no reason to criticise Dr   R.'s surgical treatment of the patients. Mr Eskeland stated that the complications complained of were common in surgery and were bound to occur from time to time, but were not due to shortcomings in Dr R.'s surgery. In one case, he criticised Dr R. for having travelled abroad without informing a relatively newly operated patient. Mr Eskeland observed that, in the light of the large number of patients treated by Dr R. – approximately 8,000 between 1975 and 1986 – the number of complaints had been moderate. Bearing in mind that the articles published by Bergens Tidende had invited Dr R.'s former patients to complain, it was surprising that not more patients had done so. 18.     On 3 November 1986 the Health Directorate decided not to take any further action, finding that Dr R. had not performed improper surgery. E.     Defamation proceedings brought by Dr R. 19.     After the publication of the newspaper articles, Dr R. received fewer patients and experienced financial difficulties. He had to close down his business in April 1989. 20.     In the meantime, on 22 June 1987, Dr R. instituted defamation proceedings against the applicants, claiming damages. By judgment of 12   April 1989 the Bergen City Court ordered the applicants to pay Dr R. a total of NOK 1,359,500 in respect of pecuniary and non-pecuniary damages and costs. The court considered that Dr R.'s economic loss would amount to several million kroner and that an assessment had to be made on a discretionary basis. It observed that, while the criticism against Dr R. had been made in an unjustified manner, destroying the public's confidence in him as a surgeon, the criticism had been caused mainly by his own conduct. The court deemed it appropriate to make an award corresponding to 75% less than the amounts claimed. 21.     The applicants and Dr R. appealed against the judgment to the Gulating High Court ( lagmannsrett ), which found for the applicants, stating, inter alia : “After hearing the evidence, the High Court finds that the articles give an essentially correct rendering of the women's experiences as they themselves lived through them. As witnesses, they gave the impression to some extent that the newspapers had moderated their accounts. The High Court finds them credible and finds no reason to believe that their subjective experiences are not commensurate with what objectively took place – in other words they had reasonable grounds for feeling the way they did and as described by the newspaper. The High Court does not exclusively base itself on these three women's statements. It finds it also proven that the newspaper was contacted by a number of other women giving similar stories. Subsequently, after the article of 3 May [1986] had been published together with an appeal by N.H. to women to join in filing an action, many more women got in touch. The High Court finds it established that the number of women [who did so] was more than one hundred. This is based mainly on statements taken from [the second and third applicants] and N.H., and some of these women have also appeared as witnesses before the High Court and have given statements. These constitute only a minor part of all the women who contacted Bergens Tidende and N.H. A total of fourteen dissatisfied women have given statements, as has the husband of one woman. However, it is largely the same story that is repeated again and again in the statements: complications did occur or the result was bad and the follow-up treatment provided by Dr R. was felt to be unsatisfactory and seemed rushed with little interest, some irritation and unwillingness. Several women told how Dr R. seemed insensitive to their mental as well as physical pain and discomfort. Some had the feeling that Dr R. would rather be finished with them after he had operated and had not organised post-operative treatment properly. Some of the women were worried that Dr R. might not have given them proper post-operative treatment. What is also being repeated by many of the women is that they were struck by the fact that Dr R. was keen when it came to the financial side; he wanted payment in advance, was unwilling to take cheques, and gave no receipt unless especially asked to do so ... On the basis of the above the High Court finds it proven that Dr R. ran his practice in such a way that many of the women who suffered complications had experiences that gave them reasonable grounds to feel themselves exposed to poor care and to feel anxiety about the treatment they were given, and in several instances had reason to feel offended by Dr R.'s behaviour. Moreover, the High Court finds that the experiences described in the article of 2 May [1986] are representative of those made by many other women. Thus the High Court finds that the three women referred to in the article of 2   May   [1986] had not been especially sensitive and had not had exaggerated expectations, but that their stories were sober and reasonably subjective accounts of what had happened. Having regard to the information at hand about complaints made by other women, the High Court also finds that this is not simply a case of one or two odd exceptions. As far as Dr R. is concerned, it can reasonably be established that it is a question of unsatisfactory behaviour, which occurred quite often in the cases where something happened to necessitate an extra effort after the operations. That is not to say that he behaved in an unsatisfactory way in most cases or in a particularly large number of them. It is hardly a question of more than a minority of the cases. And it must be stressed that nothing has been said to prove that there really was a failure as regards R.'s surgical competence. But the fact that the unsatisfactory behaviour occurred in a number of cases must provide a basis for allowing criticism of Dr R. to come to light in the newspaper. Reference is made to what has been said above about the right of the general public and the consumer to be kept informed and their right to react by staying away to be on the safe side. It should be pointed out that the people who contacted the newspaper at the outset did so as a reaction to Bergens Tidende 's article on 5 March [1986], an article which presented a picture of R.'s business without mentioning the drawbacks. Bergens Tidende claims that, in view of the article of 5 March, it felt obliged to let their criticism be heard, which the High Court finds very understandable. On 3 May [1986], Bergens Tidende ran an article in which N.H. described her own experience of treatment at Dr R.'s clinic and urged women in a similar situation to join forces in suing the doctor. The High Court finds it proven, in the same way as for the three women who were described on 2 May, that N.H.'s experiences were recounted correctly and that her subjective feelings were reasonably grounded on what had occurred. The same applies to what was stated on 5 May about the experience of a '26-year-old Bergen lady'. The High Court is also satisfied that what was stated on the same day about telephone calls to N.H. ('Storm of telephone calls') is correct ... As far as the rendering of the women's experiences is concerned, what was stated in Bergens Tidende is thus in all essentials correct. And their subjective experiences were liable to give a picture of how treatment by Dr R. could turn out, not only in rare exceptional cases ... The striking part about the statements that Dr R. has challenged is that they report in strong language on the results of treatment provided by Dr R.: 'disfigurement', 'ruined for life', 'mutilated' and the like. It is sufficiently clear that the statements are here describing the result of Dr R.'s treatment. But there is nothing in the statements suggesting a lack of surgical ability on Dr R.'s part. And one must assume that newspaper readers were aware that a poor result of an operation need not be due to a lack of surgical skill. It has been submitted that the use of expressions like 'ruined', 'was disfigured', etc., brings to mind actions that are aimed at ruining and disfiguring and that the reader is therefore immediately made to believe that some person – i.e. Dr   R. – is guilty of such conduct. The High Court does not find that, from a linguistic point of view, the statements apply to anything other than the purely objective result. Another question is whether the statements are misleading, because they give the impression that the consequences were more serious than they actually were. The High Court cannot see that this is the case – especially when bearing in mind that it is the manner of reporting of the women's subjective opinions which is at stake. 'Disfigured' means having an ugly mark of some significance on one's body, and in the opinion of the High Court the women who use this expression according to Bergens Tidende had good reason for doing so. Much the same can be said about 'mutilated'. Presumably, 'ruined' must be understood as bearing a somewhat stronger expression, but must be justified in the case of women whose breasts have large scars or have become lopsided, hard, different, or tender to touch, in view of the effect this must have had, not only on the woman's relationship with her husband but also in many other respects – one can imagine what it must mean not to be able to give one's child or grandchild a hug because of tender or hard breasts. According to what the Court finds established on the witness evidence, it was, amongst other elements, against the background of such results that the newspaper had used the expressions. While the statements thus could not be said to amount to a direct allegation that Dr   R. lacked surgical abilities, Bergens Tidende did not make it clear either that there was no lack of ability. And both the individual statements and the articles in their entirety give the impression that it is being questioned whether Dr R. always provided treatment which was medically up to standard. In the light of the women's information, however, this was a natural question to ask; several of the women mentioned it, and anyone who reads the accounts alone would be inclined to ask that question. It can therefore not be unlawful for Bergens Tidende to air this question. Dr R. also complains that Bergens Tidende conducted a veritable campaign and persecution against him. The High Court does not consider this to be the case. In particular, the newspaper should have the right to believe that women should think twice about consulting Dr R. and to write articles with this in mind ... In brief, the opinion of the High Court can be summarised as follows: In Dr R.'s practice there were a not inconsiderable number of cases of poor follow ‑ up and behaviour and the like, which gave many women reasonable grounds for feeling disappointed and badly treated. The High Court bases this assessment of evidence essentially on the women's statements and comportment in court. Bergens Tidende was entitled to write about this and to repeat the women's subjective experiences of the treatment. The newspaper did this in a manner which in all essentials was correct. In so far as the newspaper articles might have given the impression that there could be reason to question Dr R.'s professional ability, this was no more than a suspicion for which his behaviour gave reasonable grounds, and which it must therefore have been right to report on. If this led to financial losses for Dr R., it was because of the extremely sensitive nature of the activities he was engaged in. [The applicants] are therefore discharged from liability to pay damages, and the High Court will not go into the question of the extent of Dr R.'s financial losses. Moreover, the High Court does not find it possible to allow the claim for non-pecuniary damage and, referring to what has been stated above, does not find that any of the coverage of Dr R. by Bergens Tidende was unlawful.” 22.     Dr R. appealed against the above judgment to the Supreme Court. In his submission, the City Court's judgment was in principle correct, except that no reduction should have been made of the award on grounds of shortcomings on his part. In his opinion, even if the High Court's assessment of the evidence concerning lack of care and follow-up were to be accepted, this could only have a marginal effect on the amount of compensation. He maintained, inter alia , that the newspaper articles had amounted to a public execution of him as a plastic surgeon, by their strong emphasis on unsuccessful operations and by giving the readers the impression that he was incompetent. Furthermore, he had not been given a proper opportunity to reply to the criticism before the publications were printed. In his view, the defendants' conduct had been grossly negligent. The applicants emphasised that the impugned news coverage concerned above all the situation of quite a large number of women with whom the newspaper had been in contact, directly or indirectly, and who had complained about lack of care and follow-up after unsuccessful operations. They had also complained about a lack of information before the operations. The articles conveyed the women's feelings and frustrations as expressed in their own words. Whether Dr R. was a good or a bad surgeon had not been decisive. 23.     On 22 December 1992 the Appeals Selection Committee ( kjæremålsutvalget ) of the Supreme Court dismissed the appeal in so far as it concerned the High Court's assessment of the evidence relating to the issue of Dr R.'s lack of care and follow-up of his patients, and allowed the appeal for the remainder to proceed. 24.     In a judgment of 23 March 1994 the Supreme Court found in favour of Dr R. and awarded him amounts totalling NOK 4,709,861 in respect of damages and costs. Mr Justice Backer stated, inter alia , on behalf of a unanimous court: “By way of introduction I note that newspapers, of course, have a right to emphasise questionable aspects of cosmetic surgery and to illustrate their presentation with information about unfortunate incidents. They should also be able to pinpoint critical aspects of an individual surgeon's business and here the journalist in question must be granted a wide leeway for subjective considerations. But outright incorrect factual information of a negative character must be considered defamatory. The fact that the newspaper just repeats the accusations made by others will, according to established case-law, not in principle constitute a defence. Accordingly, it will be necessary to consider the individual articles in order to establish their contents in relation to the rules on defamation. In interpreting the articles one should take as a starting-point the impression which they, as a whole, will make on the ordinary reader, while attaching greater weight to the headlines and the introductions than to the text presented in normal characters. The High Court considered that the particularly interested reader would read the entire news report meticulously and thereby obtain a more balanced view than the reader who only takes a cursory look at the news report. I find it difficult to attach particular importance to this consideration. Even those who read the news report as a whole would easily be influenced by value judgments in headlines etc. Furthermore, the news report addresses the general public and will thus affect the doctor's reputation as such. Unlike the High Court, I cannot see that one can generally assume that readers would be aware that a bad result of an operation is not necessarily due to a lack of surgical skills ... The news report of 2 May 1986 was based on the positive articles of 5 March and the comments [the newspaper] had received from dissatisfied patients. It describes the situation of three women who had undergone a breast operation involving silicon implants and who had subsequently experienced problems. On page one there is a two-column headline 'Beautification resulted in disfigurement' followed by a picture of a woman's breasts disfigured by scars. In quotation marks it reads: 'We paid thousands of kroner and the only thing we've achieved is to be disfigured and ruined for life.' Inside the newspaper an entire page is reserved for the news report. There is a headline covering seven columns 'Women ruined for life after cosmetic surgery'. The same picture as on the front page is printed over five columns. Below the picture it is written: 'Enormous scars, wrinkled breasts and a long painful inflammation were the consequences of the cosmetic surgery on this woman'. The article commences with three points in bold print, which read:         'I paid NOK 6,000 and all I achieved was disfigurement.'         'To say that I bitterly regret it is an understatement. I've been ruined for life and I'll never be “my old self” again.'         'The pain was unbearable. I was transformed into an anxious, trembling nervous wreck in the course of a few days, and I thought I was going to die.' In the article it appears from the women's statements that they contacted Dr R. following an inflammation and other complications and that they were unhappy with the treatment they received. I understand this to relate both to the service and the result of the treatment. At the bottom of the page there is an interview with Dr R. with the headline 'There will always be dissatisfied patients'. In the course of the proceedings, it has been submitted that [the third applicant] had contacted Dr R. on 30 April and had asked him to comment, stating that the three women had told her that they had released Dr R. from his obligation to observe professional secrecy. However, referring to this obligation, Dr R. had refused to comment on specific cases. At the bottom of the page there is furthermore an interview with another specialist in cosmetic surgery ... with the headline 'Demanding form of surgery – Small margins between success and failure'. The following day, on 3 May [1986], a new article appeared. On the front page a headline covering two columns reads 'Action against the breast doctor'. Inside the newspaper there is a headline covering five columns 'Institute proceedings against the doctor'. It is the former patient [N.H.] who appears and explains about experiences similar to the three women from the articles published the day before. She invites everybody in the same situation to get together in a case against Dr R. There is also an interview with the Chief County Physician [ Fylkeslegen ] who states that dissatisfied patients may complain to him. Furthermore, there is an article covering five columns with the headline 'The doctor must provide receipts'. Here the complaint is made that Dr R. allegedly requested payment without providing receipts therefor. It is indicated that this might interest both the tax authorities and the social authorities. In the article of 5 May [1986] the front page contains a one-column headline 'NOK   12,000 – breasts ruined'. The headline is repeated over seven columns inside the newspaper with a small amendment without importance to its contents. Here a woman explains how she underwent two breast operations by Dr R. with a bad result. Further, there is a headline covering four columns 'Control virtually impossible' followed by an article in which the Chief County Tax Inspector [ Fylkesskattesjefe