CEDH · CASELAW;CLIN;ENG — 6 juin 2006

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France (dec.) - 28807/04 Decision 6.6.2006 [Section II] Article 10 Article 10-1 Freedom of expression Penalty imposed under provisions of the Code of Medical Ethics by the disciplinary board of a medical association, on journalists registered as members of the association: inadmissible   Article 6 Civil proceedings Article 6-1 Fair hearing Equality of arms Failure to communicate summary of facts produced in proceedings before the disciplinary board by the reporting member: inadmissible   Article 14 Discrimination Penalty imposed under provisions of the Code of Medical Ethics by the disciplinary board of a medical association, on journalists registered as members of the association: inadmissible   The applicants, who are qualified doctors and registered as such with the Paris Medical Association, are actually the editor and deputy editor of a monthly science magazine for the general public. In a September 1998 edition of their magazine they published a special supplement on French hospitals, including in particular a list of hospitals which had seen the worst results in four specialist fields. Among them was the Saint-Girons Hospital, specialising in the field of digestive surgery. On 8 October 1998 the head surgeon at the hospital lodged a complaint against the applicants with the medical council for the Paris area, which, referred the complaint to the regional medical council and requested to be joined to the proceedings on the ground that there had been a breach of the code of medical ethics. The regional medical council gave the applicants a reprimand, finding that they had been bound by the code of medical ethics and that they had imparted information in a sensational and derogatory manner, thus causing damage to the complainant and to his patients. The applicants, relying in particular on Articles 6 and 10 of the Convention, lodged an appeal with the disciplinary board of the national medical council. The board found, that the applicants had breached their duty of care in imparting information to the public, as provided for in the code of medical ethics. The applicants then lodged an appeal on points of law with the Conseil d’Etat , which dismissed their appeal. The Conseil d’Etat declared that the professional disciplinary bodies did indeed have jurisdiction because the applicants were registered as members of the medical association; that the report – simply a statement of facts – drawn up by the rapporteur appointed by the chairman of the disciplinary board did not necessarily have to be communicated to the parties; and that the disciplinary board of the regional medical council had not committed any mistake of law when it found that the provisions of the code of medical ethics concerning educational and health-related information imparted to the general public were applicable to facts relating to the applicants’ journalistic activity. Inadmissible under Article 10 – The reprimand given to the applicants clearly constituted interference with the exercise of their right to freedom of expression. The Court had to determine whether that interference fulfilled the requirements of Article 10(2), namely whether it was prescribed by law, pursued one or more legitimate aims and was necessary in a democratic society. As to the first requirement, the applicants’ decision to register as members of the medical association whilst they were in fact engaged in journalism had made it perfectly foreseeable that they would be bound by the rules of medical ethics, in particular the rule concerning the duty of care in imparting health-related information to the public. That rule had been formulated with sufficient precision to enable the applicants to regulate their conduct, especially in the context of their journalistic activity. Moreover, the interference pursued a legitimate purpose, namely the protection of the rights of others. As to its necessity, and in particular whether the impugned measures were proportionate to the aim pursued, the Court could not but observe that the supplement in question, on account of its presentation, was of a sensational nature capable of arousing the interest of readers but also concern among users of the hospital services in question. In the articles written by the applicants or under their responsibility, there was no attempt to nuance the comments made or to take the precautions that would normally be appropriate when examining a sensitive and controversial subject. The domestic courts had thus based their decisions on relevant and sufficient grounds. Moreover, it was noteworthy that the reprimand given to the applicants by the professional disciplinary bodies was the most minor disciplinary measure available, that the penalties for defamation under the French “Freedom of the Press” Act were much harsher, and that the publication itself had not been restricted in any way. In sum, the penalty imposed on the applicants could not be regarded as disproportionate to the legitimate aim pursued and the impugned interference could thus be seen as “necessary in a democratic society”: 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