CEDH · CASELAW;CLIN;ENG — 16 octobre 2001

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Norway (dec.) - 45710/99 Decision 16.10.2001 [Section III] Article 10 Article 10-1 Freedom of expression Award of damages against a newspaper for defamation of cosmetic surgeon: no violation The applicants are a daily newspaper and one of its journalists. The second applicant wrote an article on Ms J., who suffered from bulimia, about a consultation she had had with Dr D., a cosmetic surgeon. During the consultation, Ms J. voluntarily concealed from Dr D. her illness. After examining her, Dr. D. accepted to perform liposuction on her. However, she changed her mind shortly before the operation and cancelled it. She asked the applicant newspaper whether any information concerning Dr D had been archived. She spoke to the second applicant and told her that she was not pleased that Dr D. had not realised that she suffered from bulimia and had not refused to perform the operation. The second applicant proposed to write an article to relate the alleged incident. Ms J. having accepted, she interviewed two medical specialists to have their opinion on the matter, without disclosing Dr D.’s identity. She then called the latter on the telephone to inform him about the article she was writing and asked him his opinion on Ms J.’s account of the consultation. He told her that he was bound by his duty of confidentiality and thus could not make any specific comments on the consultation. His comments accordingly remained of a general nature. A couple of days after the telephone call, Dr D. tried to get in touch with the second applicant, Ms J. having released him from his duty of confidentiality. However, the second applicant could not be reached and her article was already in the process of being printed. It was published the next day with a front-page bold title “Bulimia victim to be liposuctioned”. It was based on the information provided by Ms J. and contained general comments from the medical specialists. On the front page as well as in the article itself, it read, inter alia, that despite the fact that Ms   J. suffered from bulimia, Dr D. had “nevertheless” made no reservations to perform liposuction on her. It was also said in a short article next to this one that several former patients had initiated legal actions against him. Following the publication of the newspaper, Dr D. instituted defamation proceedings against the applicants. The City Court found in his favour and awarded him damages. The court found that the article only relied on the circumstances as presented by Ms J., who suffered from psychological problems, and that the accuracy of her account had not been verified. Moreover, the second applicant had failed to wait for Dr D. to be released from his duty of confidentiality to ask for his comments. As to the existence of legal actions of former patients against Dr D., the information proved to be incorrect and biased. The applicants unsuccessfully lodged an appeal with the High Court which upheld the first instance decision. The court noted that the article gave the impression that Dr D. had accepted to perform liposuction on Ms J. although he was aware that she suffered from bulimia. This conduct was open to severe criticisms and such criticisms were endorsed in the article not only by Ms J. and the medical specialists but also by the newspaper itself as some critical statements were not presented as having been made by either Ms J. or the specialists. The court found it beyond doubt that the allegations had damaged Dr D.’s reputation. The applicants were refused leave to appeal against the High Court’s decision. Inadmissible under Article 10: This provision does not guarantee unrestricted freedom of expression even with respect to press coverage of matters of serious public concern: such freedom is subject to the proviso that journalists act in good faith in order to provide accurate and reliable information. In the instant case, the impugned article had to be considered as a whole with particular regard for the words used in its disputed passages, the context in which it was published as well as the manner in which it was drafted. A central argument in the applicants’ submissions was that the High Court’s conclusions were based on an erroneous or excessively narrow interpretation of the controversial statements of the article, namely by inferring from the word “nevertheless” that Dr D. had been accused of having been ready to perform liposuction while being aware that Ms J. suffered from bulimia. Even assuming that the article could be construed in different ways, the interpretation given by the High Court was likely to be the one which readers would generally adopt. The article in suggesting that Dr D. had adopted a conduct contrary to the ethics of his profession could engender his professional and personal disrepute. The accusation of reckless conduct was reinforced by the publication in the same issue of critical comments of specialised doctors and of another short article in the same issue in which it was reported that several legal actions had been instituted by former patients against Dr D. The domestic courts found that this last article was factually incorrect and biased. The accusation in the main article could hardly have been counter-balanced by the publication of Dr D.’s general comments. Furthermore, contrary to what the applicants alleged, the applicant newspaper did more than merely reproduce the accounts and views of others. One of the impugned statements was not indicated as having been made by Ms J. or anyone else and had thus to be imputed to the applicant newspaper itself. In addition, sufficient steps were not taken by the applicants to fulfil their obligation to verify the veracity of Ms J.’s allegations. No material was adduced either to cast doubt on the findings of the domestic courts which established that the controversial statements were not based on factual evidence. Finally, the comments made by the medical specialists were based on Ms J.’s account of the event and did not corroborate the accusation that Dr D. was aware of her illness. The applicant newspaper did not wait for Dr D. to be released from professional secrecy before publishing the article. In the light of all these elements, the interests of Dr D. in protecting his professional reputation were not counter-balanced by any important public interest in the freedom of press to impart information of legitimate public concern. In finding that the interest in protecting the plaintiff’s reputation outweighed the applicants’ freedom of expression, the High Court’s decision was based on reasons which could reasonably be regarded as relevant and sufficient. In conclusion, the interference with the applicants’ freedom of expression was not disproportionate to the legitimate aim sought: manifestly ill-founded.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes