The delicate balance between the right to freedom of expression and the protection of the reputation of a hospital
JUDGMENT
Frisk and Jensen v. Denmark 5.12.2017 (no. 19657/12)
SUMMARY
A documentary film criticizing the way cancer chemotherapy is provided at the University Hospital in Copenhagen. The documentary made reference to patient disappointment with chemotherapy as the Hospital sponsored Vinorelbine for cancer chemotherapy without informing them of the alternative drug Alimta, which was supposedly tested more. Condemnation of documentary actors to a fine for defamation of the hospital because the information they gave was incorrect and they knew it. Fair balance between the right of journalists to freedom of expression and the right of the hospital to protect its reputation. No violation of freedom of expression.
PROVISION
Article 10
PRINCIPAL FACTS
The applicants, Mette Frisk and Steen Jensen, are two Danish journalists employed by a national
television station, Danmarks Radio. They were born in 1977 and 1961 and live in Copenhagen and
Åbyhøj (Denmark) respectively.
The applicants were producer and chief sub-editor of the documentary programme “When the
doctor knows best”. On 24 September 2008 at 8 p.m. the programme was broadcast on the topic of
lung cancer and the types of chemotherapy used at Copenhagen University Hospital. It reported on
patients’ and families’ frustration at being denied a choice in chemotherapy, Vinorelbine being the
preferred option at the hospital. It questioned whether patients should have been informed of other
options, namely Alimta which allegedly had been more thoroughly tested than Vinorelbine.
Shortly after, the hospital and the consultant in charge of cancer treatment at the hospital instituted
defamation proceedings against the applicants for accusing them of malpractice. During the
proceedings before the courts, the consultant and the medical director for the hospital gave
evidence, stating in particular that the programme had given patients the impression that Alimta
was the only approved cure and that Vinorelbine was just a test product, even though the applicants
knew that this was not true, and that in addition there were no studies to show that Alimta was
medically better.
Ultimately, in June 2011, the courts found against the applicants and sentenced them each to
10 day-fines of 1,000 Danish Kroner (equal to approximately 1,340 euros in total). Although giving weight to the fact that the programme dealt with a matter of considerable public interest, namely risk to life and health in public hospital treatment, the courts found that the programme had undisputedly given viewers the impression that malpractice had occurred at Copenhagen University Hospital. In particular, the programme had accused the consultant of preferring to use chemotherapy which was part of a test, with the clear insinuation that this was in order to promote the consultant’s professional prestige and personal financial situation, and that this had resulted in
certain patients dying or having their lives shortened.
Furthermore, assessing various research material, the courts concluded that the accusations had
been factually incorrect as there had been no documentation to show that Alimta therapy was more
effective than Vinorelbine and that the applicants had to have been aware of this as they were in
possession of the same material when preparing their programme.
Lastly, the courts found that the allegations could not be justified by the fact that the hospital had
refused to participate in the programme. On the contrary, the hospital had cooperated by
responding to Ms Frisk’s extensive inquires, the hospital’s cancer consultant notably producing a
memorandum in June 2008 stressing that international studies had not shown that any combination
of chemotherapy was superior to another.
THE DECISION OF THE COURT…
First, the Court accepted that Copenhagen University Hospital, although a public body and not a
person as such, could rely on “the protection of the reputation or rights of others” under Article 10
because it represented the interests of management and staff, including the hospital’s cancer
consultant.
It then went on to agree with the domestic courts that the applicants’ programme had dealt with
issues of legitimate public interest, namely the treatment of cancer patients; and that the limits of
acceptable criticism were wider in their case as the subject of their criticism was a public hospital
whose activities had an impact on the life and health of the general public.
Similarly, the Court saw no reason to call into question the conclusions of the domestic courts that
the accusations made in the programme had been factually incorrect. Although the domestic courtshad not disputed that the journalists had carried out thorough research, they pointed to the fact
that they had not informed viewers that there was no documentation to show that Alimta was more
effective than Vinorelbine, despite the research material in their possession and in particular the
memorandum prepared by the hospital’s cancer consultant of June 2008. Indeed, in their
submissions to this Court, the applicants stated that they had not found the memorandum suitable
for inclusion in their documentary as it had not answered their specific questions.
Moreover, those wrongful accusations, disseminated on primetime national television, had had
considerable consequences, namely a public demand for Alimta chemotherapy and a change in
practice at Copenhagen University Hospital. Like the courts, the Court considered that that was
because the programme had encouraged patients to mistrust Vinorelbine chemotherapy based on
an incorrect portrayal of the facts, and not, as the applicants alleged, because of journalism playing
its essential and indispensable role in a democratic society.
Nor could the applicants justify their allegations by the fact that the hospital had refused to
participate in their programme. There was no dispute during the domestic proceedings that the
hospital had cooperated with the preparation of the programme by replying to the journalists’
questions and giving them relevant information, including the memorandum of June 2008.
Lastly, the Court found that the applicants’ conviction for defamation and their sentences had not
been excessive in the circumstances.
In conclusion, the reasons the domestic courts had given for convicting the applicants of defamation
had been “necessary in a democratic society”. The Danish authorities’ decisions had moreover struck
a fair balance between the competing interests at stake, namely the journalists’ right to freedom of
expression and the hospital’s and its consultant’s right to the protection of their reputation.
There had therefore been no violation of Article 10 of the Convention(echrcaselaw.com editing).
