CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 2 mai 2000

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify } .s94935B0F { width:389.85pt; display:inline-block } .sBB9EE52A { font-family:Arial } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .sA36B60A1 { font-family:Arial; font-style:italic } .s21B97EC1 { width:25.99pt; display:inline-block } .s76CF415B { page-break-before:always; clear:both } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .sADADF4A7 { font-family:Arial; text-decoration:underline } .sCB27B9E { width:16.66pt; display:inline-block } .sC5412BEF { width:51.05pt; display:inline-block } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } .s3133A7C8 { font-family:Arial; color:#0069d6 } EUROPEAN COURT OF HUMAN RIGHTS     305   2.5.2000   Press release issued by the Registrar   JUDGMENT IN THE CASE OF BERGENS TIDENDE AND OTHERS v. NORWAY     In a judgment [1] delivered at Strasbourg on 2 May 2000 in the case of Bergens Tidende and Others v. Norway, the European Court of Human Rights held unanimously that there had been a violation of Article 10 (freedom of expression) of the European Convention on Human Rights. Under Article 41 (just satisfaction) of the Convention, the Court awarded the applicants specified sums for pecuniary damage and for legal costs and expenses and interest.   1.   Principal facts   The case concerns an application brought by Bergens Tidende , the largest newspaper on the Norwegian west coast, and two   Norwegian nationals, Einar Eriksen, the newspaper’s former editor-in-chief, and Berit   Kvalheim, a journalist employed by the paper, who were born respectively in 1933 and 1945 and both live in Bergen.   A plastic surgeon, Dr R., brought defamation proceedings against the applicants on account of a series of articles recounting complaints of dissatisfied patients. Bergen City Court found for the plaintiff, but its judgment was overturned by Gulating High Court, which found that the newspaper had given an essentially accurate account of the patients’ respective experiences, and that deficiencies in care and follow-up treatment had occurred at Dr R.’s clinic. Dr R. sought to appeal to the Supreme Court, which refused him leave to appeal in so far as concerned the High Court’s assessment of the evidence and findings relating to the issue of lack of care and follow-up but allowed the remainder of his appeal. In a judgment of 23   March   1994, the Supreme Court found that the impugned articles constituted accusations of substandard plastic surgery which had not been proven. It ordered the applicants to pay Dr   R. amounts totalling NOK   4,709,861 (approximately 4   million   French francs) in respect of damages and costs.   2.   Procedure and composition of the Court   The application was lodged with the European Commission of Human Rights on 13   September 1994.   Following the entry into force of Protocol No. 11 to the Convention on 1   November   1998, the case was transferred to the Court under the provisions of Article 5 § 2 of the Protocol. It was declared admissible on 29 June 1999.   A hearing was held on 9 November 1999.   Judgment was given by a Chamber of 7 judges, composed as follows:   Nicolas Bratza (British), President , Jean-Paul Costa (French), Françoise Tulkens (Belgian), Willi Fuhrmann (Austrian), Karel Jungwiert (Czech), Kristaq Traja (Albanian), Judges , Stein Evju (Norwegian), ad hoc Judge ,   and also Sally Dollé , Section Registrar .   3.   Summary of the judgment [2]   Complaint   The applicants complained that the Supreme Court’s judgment of 23 March 1994, requiring them to pay Dr R. approximately NOK 4.7 million for damages and costs had unjustifiably interfered with their right to freedom of expression as guaranteed under Article 10 of the European Convention on Human Rights.   Decision of the Court   The Court considered, and this was not disputed by the parties, that the impugned measures constituted an “interference by [a] public authority” with the applicants’ right to freedom of expression as guaranteed under the first paragraph of Article 10, that the interference was “prescribed by law”, namely section 3-6 of the Damage Compensation Act 1969 and pursued the legitimate aim of protecting “the reputation or rights of others”. The dispute in the present case related to whether the interference was “necessary in a democratic society”.   Article 10 of the Convention   The Court observed at the outset that the impugned articles, which recounted the personal experiences of a number of women who had undergone cosmetic surgery, concerned an important aspect of human health and as such raised serious issues affecting the public interest. However, the Court recalled that Article 10 of the Convention did not guarantee a wholly unrestricted freedom of expression even with respect to press coverage of matters of serious public concern. By reason of the “duties and responsibilities” inherent in the exercise of freedom of expression, the safeguard afforded by Article 10 to journalists in relation to reporting on issues of general interest was subject to the proviso that they were acting in good faith in order to provide accurate and reliable information in accordance with the ethics of journalism.   The difference of view between the High Court and the Supreme Court related to the question whether the articles conveyed to the ordinary reader not only that Dr R. had been guilty of poor after-care in cases where complications had arisen, but that the unsuccessful breast operations described in the articles and depicted in the photographs were the result of a lack of surgical skill on Dr R.'s part. While the Court accepted that the latter view held by the Supreme Court was one which was reasonably open to it and proceeded on the assumption that that view was correct, it did not find it necessary to resolve the dispute between the national courts as to how the newspaper articles would be interpreted by the ordinary reader.   The Court attached considerable weight to the fact that in the present case the women’s accounts of their treatment by Dr R. had been found not only to have been essentially correct but also to have been accurately recorded by the newspaper. It was true that, as pointed out by the national courts, the women had expressed themselves in graphic and strong terms and that it was these terms which had been highlighted in the newspaper articles. However, the expressions used had reflected the women’s own understandable perception of the appearance of their breasts after the unsuccessful cosmetic surgery, as shown in the accompanying photographs. Moreover, in none of the articles had it been stated that the unsatisfactory results were attributable to negligent surgery on the part of Dr R. This meaning was one derived by the Supreme Court, not from the express terms but from the general tenor of the articles, whose common sting, however, lay in the true allegation that Dr R. had failed in his duties as a cosmetic surgeon in not providing proper or adequate post-surgical treatment to remedy the results of unsuccessful operations. Reading the articles as a whole, the Court did not find that the statements were excessive or misleading.   Nor did the Court accept that the reporting of the accounts of the women showed a lack of any proper balance or that Dr R. had not been given the chance to defend himself. The Court accepted that publication of the articles had had serious consequences for the professional practice of Dr R. However, as expressly recognised by the national courts, given the justified criticisms relating to his post surgical care and follow-up treatment, it had been inevitable that substantial damage would in any event have been done to his professional reputation. Dr   R.’s role had not been limited to surgery in the narrow sense but had encompassed all aspects of cosmetic surgery.   In these circumstances the reasons relied on by the respondent State, although relevant, were not sufficient to show that the interference complained of was “necessary in a democratic society”. The Court considered that there was no reasonable relationship of proportionality between the restrictions placed by the measures applied by the Supreme Court on the applicants’ right to freedom of expression and the legitimate aim pursued. Accordingly, there had been a violation of Article 10 of the Convention.     Article 41 of the Convention   The applicants did not seek compensation for non-pecuniary damage or reimbursement of their costs and expenses incurred in connection with the proceedings before the Convention institutions.   The Court awarded, in respect of pecuniary damage, 4,848,589 Norwegian kroner to the first applicant and 44,383 kroner each to the second and third applicants and, in respect of domestic costs and expenses 878,945 kroner to the applicants together.   In respect of additional interest, 740,000 kroner was to be paid to the first applicant and 5,700 kroner each to the second and third applicants.     The Court’s judgments are accessible on its Internet site ( http://www.echr.coe.int ).   Registry of the European Court of Human Rights F – 67075 Strasbourg Cedex Contacts:   Roderick Liddell (telephone: (0)3 88 41 24 92)   Emma Hellyer (telephone: (0)3 90 21 42 15) Fax: (0)3 88 41 27 91   The European Court of Human Rights was set up in Strasbourg in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. On 1 November 1998 a full-time Court was established, replacing the original two-tier system of a part-time Commission and Court. [1] Under Article 43 of the European Convention on Human Rights, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17-member Grand Chamber of the Court.   In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its Protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer.   [2] This summary by the registry does not bind the Court.