Content Regulation / Censorship, Protection of Sources, Defamation / Reputation
Marena v. Auler
Closed Contracts Expression
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The European Court of Human Rights found that the conviction and fining of two Danish television journalists had not violated their right to freedom of expression. The two journalists produced a documentary that criticized the treatment of pleural mesothelioma cancer at Copenhagen University Hospital. The Danish courts held that the documentary had given viewers the impression that improper treatment had been given at the hospital, and that the consultant in charge of the treatment was trying to promote his professional prestige and personal finances at the expense of patients. The domestic courts concluded that these allegations had an incorrect factual basis. The European Court of Human Rights reasoned that the Danish courts had struck a fair balance between the journalists’ right to freedom of expression on the one hand, and the hospital staff’s right to protection of their reputation and the consultant’s right to respect for his private life on the other. In light of this, there had been no violation of the right to freedom of expression.
Mette Frisk and Steen Jensen were two Danish journalists working for a national television station, Denmarks Radio. They produced a program entitled “[w]hen the doctor knows best”, which they described as a documentary. The program was broadcast on September 24, 2008 at 8pm, and was seen by over half a million viewers. The program looked at the treatment of pleural mesothelioma cancer and two types of chemotherapy that could be used. The documentary reported that Vinorelbine, produced at the Copenhagen University Hospital and used by the consultant in charge there, was preferred as first-line treatment for pleural mesothelioma at the Copenhagen University Hospital (when combined with a platin medicinal product). Three experts appeared in the program who used Alimta (with a platin medicinal product) as first-line treatment.
The program followed four patients and their relatives. In preparation of the program, autonomous research on the subject was conducted by one of the journalists. For instance, the journalist found that the European Union had approved the marketing of Alimta (with a platin medicinal product) for treatment of individuals with inoperable pleural mesothelioma cancer, and that the Danish Minister for Internal Affairs and Health had stated there was no proof that Alimta-based treatment was more efficient than other chemotherapy-based treatments for pleural mesothelioma. The journalist was also privy to a memorandum from the Copenhagen University Hospital that stated that international studies, including of Vinorelbine and Alimta, had not shown that any two-combination regime was superior to other two-combination regimes. This statement was later confirmed to the journalist by two of the program’s experts. The Copenhagen University Hospital memorandum also clarified that money had been received by the consultant at the hospital from the company that produced Vinorelbine, but that this money had been used to pay nurses and students (not doctors).
Following the broadcast of the program, the hospital and the consultant brought legal action for defamation against the television journalists under Article 267 the Penal Code. They argued that the program accused the hospital and the consultant of malpractice regarding certain patients suffering from pleural mesothelioma cancer, allegedly resulting in the patients’ unnecessary death and shortening of life, in the interest of the consultant’s professional prestige and private finances.
The Copenhagen City Court sentenced the two journalists to 10 day-fines of 1,000 Danish Kroner each, and the allegations made in the documentary were declared “null and void”. The City Court highlighted a number of terms used by the program, and concluded that a non-professional viewer would interpret the program as saying that Alimta was the only effective drug for mesothelioma (particularly since the treatment of patients with Vinorelbine in the program was linked to their deaths, while a person treated with Alimta was given the prospect of several more years to live). The City Court also found that a non-professional viewer would interpret the program as saying that the consultant had a personal financial interest in using Vinorelbine treatment rather than Alimta.
The High Court of Eastern Denmark upheld the decision of the City Court. The High Court held that the program dealt with a matter of considerable public interest, namely the risk to life and health related to a treatment practiced in a public hospital. The High Court reasoned that the “programme undisputedly gave the viewers the impression that malpractice has occurred at Copenhagen University Hospital, in that [the consultant] has deliberately used medication (Vinorelbine), which is not approved for treatment of pleural mesothelioma cancer, and whose effect has not been substantiated, that the medication in question was part of a test, and that the test medication has resulted in patients dying or having their lives shortened. The way that the programme is built up with its beginning and ending, the viewers get the clear impression that the reasons behind this choice of medication [Vinorelbine] were [the consultant]’s professional prestige and personal finances.” The High Court noted that the journalists failed to establish the truth of the allegations, noting in particular that there was no documentation to show that Alimta therapy was more effective or efficient than Vinorelbine.
The High Court concluded that “[t]he aim of the programme – to make a critical assessment of the treatment of patients with pleural mesothelioma cancer offered by Copenhagen University Hospital and the responsible consultant – is a legitimate part of the press’s role as ‘public watchdog’, but it cannot justify an allegation, which is built on a factually incorrect basis, and thus a wrong premise. [The journalists], who did not limit themselves to referring to or disseminating statements by experts, patients and relatives, did not have any basis for making such serious allegations against Copenhagen University Hospital and the consultant. The allegations cannot be justified on the grounds that Copenhagen University Hospital and the consultant refused to participate in the programme.” The High Court also found that the fact that the program was disseminated on national television at primetime was an aggravating factor. Leave to appeal to the Supreme Court of Denmark was subsequently denied.
The journalists filed a complaint to the European Court of Human Rights, arguing that the decisions of the domestic courts violated their right to freedom of expression under Article 10 of the European Convention on Human Rights (Convention). They argued that the Copenhagen University Hospital, being a public body, could not rely on “the protection of the reputation or rights of others” under Article 10 of the Convention. They maintained that their program was based on substantive and significant journalistic research, and that they acted in good faith and in compliance with press ethics. They also indicated that both the hospital and the consultant were invited to comment on the allegations on numerous occasions, and that the subject of the documentary was of public interest. The Danish Government, on the other hand, argued that the decisions pursued the legitimate aim of protecting the reputation of others. Although the program dealt with a matter of public interest, the Government argued that false allegations would have affected a patient’s confidence in the treatment and that would have caused difficulties to the proper operation of the hospital. The Government maintained that the journalists had not acted on a factually correct basis, nor did they provide reliable and precise information in accordance with the ethics of journalism.
The European Court of Human Rights (Court) noted that it was common ground between the parties that there had been an interference with the journalists’ right to freedom of expression. The Court went on to consider whether the interference had pursued a “legitimate aim”. Having surveyed its previous case law, the Court rejected the applicants’ argument that the judiciary is the only public authority whose protection is capable of constituting a “legitimate aim” under Article 10(2) of the European Convention on Human Rights (Convention). The Court opined that the Copenhagen University Hospital was acting as a “representative for its unnamed management and staff […] than being a mere institution representing its interests in the form of prestige or commercial success.” [para. 49] The Court also noted that there was no basis for Article 10(2) of the Convention to distinguish between attacks on the reputation of medical staff at private hospitals as opposed to public hospitals. Accordingly, the Court found that the interference pursued the legitimate aim of protecting the “reputation or rights of others” under Article 10(2) of the Convention.
When looking at whether the interference was “necessary in a democratic society”, the Court set out the criteria that was relevant when balancing the right to freedom of expression against the right to resect for private life. The Court reiterated that where domestic courts had balanced the right to freedom of expression with the right to private life in compliance with these criteria, strong reasons would be required if it was to substitute its view for that of the domestic courts. The Court applied the criteria to the present facts despite the fact that the reputation of the staff of the University Hospital fell within protection of the “reputation of … others” rather than the right to respect for private life. The Court’s application of these criteria to the present case was as follows.
The subject matter of the program and its contribution to a debate of general interest
The Court noted that the national courts had acknowledged that the program dealt with a subject of legitimate public interest. The Court quoted an excerpt from the High Court judgment that recognized that a tremendous weight would be placed on the right to freedom of expression when discussing risk to life and health. Furthermore, the High Court acknowledged that the press would be afforded a certain amount of exaggeration and provocation in connection with such discussions.
How well-known the person concerned is and his conduct prior to the program
The Court observed that the criticism was directed at hospital staff, including the consultant, who were vested with official functions. The Court reiterated that the limits of acceptable criticism were wider as concerns public figures than private individuals. The Court indicated that the domestic courts had accepted that there was a need for wider limits of public scrutiny because of the activities carried out at Copenhagen University Hospital.
Content, form and consequences of the impugned program
The Court found no reason to call into question the conclusions reached by the domestic courts as to the nature of the allegations and the lack of factual basis for them. Moreover, the Court was satisfied that the allegations against the consultant had reached the level of seriousness required to fall within the scope of Article 8 of the Convention (right to respect for private life). The Court also endorsed the finding of the domestic courts that the audio-visual nature of the program and the fact it was disseminated by a national television channel during primetime were aggravating factors. Furthermore, the Court reasoned that the labelling of the program as a “documentary” could have added to the viewers’ expectations that they would be presented with the truth. The Court accepted that the Copenhagen University Hospital had to change its treatment of a number of patients because the program, on an incorrect factual basis, encouraged patients to mistrust the treatment they were receiving at the hospital.
Method of obtaining the information and its veracity
The Court noted that material in the possession of the journalists at the time the program was produced indicated that there was no proof that any one of the two chemotherapy treatments considered were any more effective or efficient than the other. The material also stated that no financial profit was being made by doctors at the hospital by treating patients with Vinorelbine. The Court noted that the domestic courts did not dispute that the journalists conducted thorough research. Nonetheless, the Court could not call into question the domestic courts’ conclusion that the journalists had made accusations resting on a factually incorrect basis, of which they must have become aware through their research. The Court reiterated the protection afforded to journalists under Article 10 of the Convention is subject to the proviso that the journalist is acting in good faith and on an accurate factual basis, and provides “reliable and precise” information in accordance with the ethics of journalism. The Court could find no indication that the judicial authorities placed a disproportionate and unfair burden on the journalists by requiring them to provide medical documentation about Alimta compared to Vinorelbine. The Court also endorsed the domestic courts’ view that the hospital’s refusal to participate in the program did not justify the impugned statements being made.
Severity of the sanction imposed
The Court reconized that a criminal conviction was a “serious sanction”. Nonetheless, in this case, the Court did not find the conviction, the sentence to a fine of approximately 1,340 EUR, and the order to pay costs (approximately 20,435 EUR) to be unreasonable or disproportionate.
In light of the above, the Court concluded that the reasons given by the domestic courts to justify the criminal conviction for defamation of the two journalists was “necessary in a democratic society”, and that the domestic authorities acted within their margin of appreciation in striking a fair balance between the competing interests at stake. There was, therefore, no violation of Article 10 of the Convention.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This decision contracts freedom of expression. The European Court of Human Rights refused to interfere with the criminal conviction and fine imposed on two journalists for publishing a story that both parties agreed was a matter of public interest. Much of the decision focused on the material available to the journalists at the time the program was produced, and the fact that the domestic courts had used much of the language deployed by the European Court of Human Rights in its previous case law on Article 10 of the Convention. There was no attempt to examine whether a less restrictive measure than a criminal conviction could have been used to sufficiently protect the hospital staff’s reputation. Another concerning aspect of the European Court of Human Rights’ judgment is its recognition that it can be a “legitimate aim” to protect the reputation of some public bodies under domestic law.
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