AVISA NORDLAND AS v. NORWAY

FIFTH SECTION

DECISION

Application no. 30563/15
AVISA NORDLAND AS
against Norway

The European Court of Human Rights (Fifth Section), sitting on 20 February 2018 as a committee composed of:

Síofra O’Leary, President,
Erik Møse,
Lәtif Hüseynov, judges,

Anne-Marie Dougin, Acting Deputy Section Registrar,

Having regard to the above application lodged on 3 September 2014,

Having deliberated, decides as follows:

THE FACTS

1. The applicant company, Avisa Nordland AS, is a Norwegian newspaper publisher, seated in Bodø. It is represented before the Court by Mr T. Hatland, a lawyer practising in Bergen.

A. The circumstances of the case

2. The facts of the case, as submitted by the applicant company, may be summarised as follows.

1. Background

3. The applicant company publishes a daily newspaper which, in 2010, ran a series of articles relating to cancer surgery carried out at Nordland Hospital in the town of Bodø.

4. In a letter of 9 December 2004, the regional health authorities had informed Nordland Hospital that operations for certain types of cancer – including pancreatic cancer – were to be carried out at Northern Norway University Hospital or at Rikshospitalet; the latter located in Oslo. Such operations had still occasionally been carried out at Nordland Hospital. One operation had been performed on 29 June 2009. A 60-year-old woman, C, had had an operation due to a strong suspicion of pancreatic cancer. After the operation, she had suffered from serious long-term complications. Samples that were taken during the operation subsequently showed that she had not had cancer. However, an “intraductal mucinous neoplasm with mild dysplasia” – a tumour that develops in the pancreatic ducts and whose sufferers are at a high risk of developing cancer – was detected. The operation had been carried out by A and his colleague, B.

5. The newspaper started its series of articles on the matters on 26 June 2010, covering both the operation on C and the violation of the guidelines on division of functions between the different hospitals. That day, the story was prominently displayed on the front page of the newspaper. The title of the article was “RUINED THE HEALTH of a healthy woman” with a large photo of C. The article also filled a large portion of several pages in the newspaper. As in subsequent articles, “The Hospital Scandal” (“Sykehusskandalen”) was used as the page heading. The headline for the article on pages 6 and 7 was spread across both sides of the newspaper and read: “Was ruined by the hospital.” (“Ble ødelagt av sykehuset.”) After, inter alia, having explained that C had been a patient due to suspicion of cancer, it was stated:

“Major injuries. This is the story of how very wrong things can go. When C woke up after the anaesthesia, portions of her pancreas and portions of her small intestine had been removed. Her spleen was gone. Her oesophagus was disconnected and a liver vein was damaged. The hospital had performed a cancer operation, which entailed major complications, without knowing for certain whether the patient had cancer.

Was healthy. The physicians didn’t wait for the results of the cancer tests. When the results arrived, three days after the first operation, it turned out that C did not have cancer. She was healthy.”

6. Thereafter the article referred to the breach of the guidelines for the division of functions (see paragraph 4 above). On the same pages, there was a large photo of C with a caption stating: “For one year she was in hospital after a cancer operation, an operation that she should not have had, because she did not have cancer.” Under the headline “‘Gross negligence’”, the newspaper quoted C’s counsel, who, among other things, had stated that “injury has been inflicted on C with intent and gross negligence” (“C er forsettlig og grovt uaktsomt påført skade”).

7. The article on pages 8 to 9 had the headline “Surgeon reported the incident himself”, a large photo of A and B was displayed and the names of the two were published. In the article, it was pointed out that it was A who had operated on C. It transpired that the two surgeons did not want to comment publicly on the matter because it was being reviewed by the Board of Health Supervision. On those pages there was also an article in which C was quoted. The headline was “Cannot forgive that they did not wait”, and there were two photos of C showing all the medical equipment that she “was dependent on in order to survive” – “[f]eeding tube, medicine pump, respirator, monitoring”. In the article, C was further quoted on the following:

“Why couldn’t they have waited? They could have taken a biopsy, sewed me back together and waited for the results. But, they didn’t do that. They tore my guts out instead. I cannot forgive them for not waiting.

...

I said yes to a biopsy, and said it was OK if I was operated on in Bodø if it was cancer. I took it for granted that the hospital was authorised to perform this cancer operation. The surgeon who operated on me confirmed this as well. Now they have demonstrated that they are not capable of this ...”

8. The newspaper was not published on the following day – a Sunday. On Monday 28 June 2010 the hospital case was again prominent on its front page as well as being the subject of the editorial and a two-page article on pages 6 and 7. The headline for the item on the front page was “ZERO CONFIDENCE in Nordland Hospital” (“NULL TILLIT til Nordlandssykehuset”). Here a new patient history was commented on with the following quote from another patient, G:

“‘I thought I was the only one’, says G. She was shocked by the news of the operation scandals at Nordland Hospital. She had organs removed last year – before it turned out later on that she did not have cancer after all. Now she has lost all faith in the hospital in Bodø.”

9. This was elaborated on further in the article on pages 6 and 7. Here there was also a photo of G, with the following caption:

“Not cancer after all. G is the third person to report that she has had organs removed because the two physicians operated before they had received the test results. ‘I felt healthy when I was admitted. Since then I have been off work sick’, says G, who will file a complaint with the patient ombudsman.”

10. On these pages there was also an article with the headline “A not allowed to operate”, and a fact box with the headline “Hospital Scandal”, where, among other things, it was stated that:

“On Saturday, 26 June, Avisa Nordland told the story of a former operating theatre nurse C (61) who was operated on for pancreatic cancer without being sick.”

11. In addition, a number of reader comments on the surgeons were included, using expressions such as “A disgrace. In Bodø a surgeon can literally operate freely”, “Are they doctors?” and “Incompetent”. The editorial on page 2 contained the following:

“Hospital Scandal

The stories of the operation scandals at Nordland Hospital, which were revealed by Avisa Nordland and VG in recent days, are so shocking that one can hardly believe what one is reading. Healthy patients have been operated on for no reason. Vital organs have been removed, and irreparable damage and major complications have been inflicted on the patients. In Saturday’s newspaper, C (61) told of how the physicians had removed her pancreas, spleen, parts of her small intestine, disconnected her oesophagus and damaged her liver. The physicians operated before they knew whether she had cancer. She did not have cancer. She was totally healthy. The two foreign senior consultants had performed operations they never should have performed. ...”

12. Thereafter the breach of guidelines for the division of functions between the two hospitals was commented on. Next to the editorial was printed in bold font: “Our opinion. Devastating for confidence in Nordland Hospital.”

13. In the ensuing period, there were a number of articles and comments on the matter in the newspaper, but they were primarily about the hospital and the managers’ responsibility for the breach of guidelines for the division of functions between the hospitals. However, the newspaper continued to print a “fact box” stating that C “was operated on for pancreatic cancer without being sick”. In addition, they printed a number of new reader comments with strong criticism of the surgeons, in which it was expressed that the surgeons should be “fired”, and that “healthy people ... have been mutilated”.

14. The specific operations and the two surgeons, A and B, continued to be mentioned in certain articles. On 30 June 2010 the newspaper, for example, printed an article in which the person responsible for prosecution in the regional police district stated that an investigation of the hospital and the two physicians would be launched.

15. On 1 July 2010 there was a big article with the headline “Hard for the employees”. Here it was stated that the coverage in the press had been a heavy burden on the hospital employees. It was also stated that the employee representatives thought that the criticism had been one-sided, oversimplified and unfair, and that they reacted to the fact that the media had presented the matter “almost as if the hospital had collected healthy people from the street and operated on them for no reason”.

16. On 5 July 2010 the Board Chairman of Nordland Hospital had an article in the newspaper. Here it was stated that it was not correct that healthy patients had been operated on, and that the suspicion of “pancreatic cancer was so strong that the operation had to be performed, and there is agreement on this medically, not just in Norway, but internationally as well”. It was also made reference to the fact that one of Norway’s foremost experts on pancreatic cancer had added more detail to the case through an article in another newspaper. The expert had there stated that the criticism of the hospital had been unreasonable.

17. The same day the applicant newspaper had a two-page spread with statement by two of A’s colleagues. It appeared that the two colleagues were discouraged by the fact that the media could “expose people with their name and photo in a matter before the Board of Health Supervision had made a decision”. There was also an article about a patient who was happy to have been “operated on in error” since the uncertainty of whether he had cancer or not had been “an unbearably great mental strain”.

18. On 28 June and 1 July 2010 the Clinic Head as well as the Managing Director resigned from their positions because of the breach of the guidelines for the division of functions (see paragraph 4 above). In addition, the Board of Health Supervision had engaged two professors to assess the treatment of 13 patients who had undergone advanced liver or pancreatic surgery at Nordland Hospital.

19. The case was examined by the Board of Health Supervision (Helsetilsynet). On 10 May 2011 the Board concluded that there were no grounds to issue A a warning under the Health Personnel Act. As to C, there had been grounds for operating and the operation had been carried out in a diligent (“forsvarlig”) manner, even though it had not been common (“god praksis”) to remove the tail of the pancreas and spleen at the same time as the pancreas, or to remove the middle portion of the pancreas. In a letter to the hospital of the same day, the hospital was found to have breached the Specialist Health Services Act in conjunction with the Health Personnel Act due to the breach of the division of functions (see paragraph 4 above).

20. On 12 May 2011, after the Board of Health Supervision’s decision was announced, the applicant newspaper printed an article on one page with the headline “Surgeons are criticised”. Here it was stated, inter alia, that “[t]he two foreign surgeons violated the Health Personnel Act. However, they will be given no warning by the Board of Health Supervision. ... The two surgeons are both criticised for certain surgical procedures. Each of them has a patient case where the Board of Health Supervision concludes that there has been a violation of the requirement of diligent conduct in section 4 of the Health Personnel Act. It is nevertheless not enough to give the surgeons a warning.”

21. On 4 July 2012 A instigated proceedings against the applicant company before the District Court (tingrett), claiming redress (oppreisningserstatning) for defamation under section 3-6 of the Compensation Act (see paragraph 36 below). In its judgment of 11 March 2013, the District Court ordered the newspaper to pay redress in the amount of 400,000 Norwegian kroner (NOK), approximately 41,000 euros (EUR). A also recovered his legal costs, which amounted to NOK 318,611, approximately EUR 33,000.

22. On 9 December 2013, upon the applicant company’s appeal against the judgment, the High Court (lagmannsrett), ruled in favour of the company. A was, moreover, ordered to compensate the company’s legal costs with NOK 681,522, approximately EUR 70,000.

23. A appealed against the High Court’s judgment to the Supreme Court (Høyesterett).

2. The Supreme Court’s judgment

24. In its judgment of 9 December 2014, the Supreme Court reiterated that the relevant rules on redress for defamation (see paragraphs 36-37 below) required that the rights protected under Articles 8 and 10 of the Convention be balanced against each other. Reference was made to Axel Springer AG v. Germany [GC], no. 39954/08, § 84, 7 February 2012.

25. As to the interpretation of the newspaper’s articles, the perception of the ordinary reader would be decisive, as required by the Court’s case-law. The ordinary reader would perceive that A had made gross errors by operating on C and G for no reason, and that he had inflicted irreparable injuries on them by removing vital organs. The ordinary reader would also perceive that, as to C, her consent to the operation had been subject to a biopsy being taken that showed that she had cancer, and that this condition had not been fulfilled, which meant that there had been no consent. There was no doubt that all three accusations were apt to harm A’s “good name and reputation or to expose him to ... loss of the confidence necessary for his position” under Article 247 of the Penal Code (see paragraph 37 below).

26. Turning to the issue of unlawfulness, the topic of public health care was of great public interest and the coverage had lain in the core of freedom of expression. In its case-law the Court had stressed the importance of not imposing unnecessary restrictions on the press in its role as a public watchdog. On the other hand, the accusations had been serious and apt to cause substantial damage, especially so because the newspaper had published A’s name and photo. Besides reproducing patient’s stories, the newspaper had expressed its own opinions. The statements contained in part elements of value judgments, but also significant elements of factual statements. According to the Court’s case-law, the more serious the accusation is, the better the factual basis must be. The Court had also attached considerable importance to whether the name of the person the accusations are aimed at is mentioned.

27. Having examined the statements closer, the Supreme Court concluded that the presentation of the operation on C had been clearly incomplete and misleading. There had been no factual basis for saying that A had committed gross errors by operating and removing important organs for no reason. Correspondingly, there had been no factual basis for saying that G had been operated on for no reason. Furthermore, based on the evidence, it was most likely that C had consented to the operation.

28. Other articles published by the newspaper had not provided a counterbalance that could compensate for or change the impression made by the large number of articles containing criticism of what the physicians had done.

29. The Supreme Court also examined whether the newspaper had acted professionally, honestly and in good faith. Reference was made to Axel Springer AG, cited above, § 93. In this regard, the Supreme Court noted that before the newspaper had published the series of articles, it had had at hand a report from an independent expert who had concluded that there were grounds for operating on C, and that C had given her informed consent to the operation. It had also had available a letter from A to the Board of Health Supervision in which he had expressed the same opinions. The expert had indeed used medical terminology, but the main elements of a strong suspicion of cancer, indication for the operation and consent had also been understandable for persons without such competence and the journalist had stated in her written declaration to the Supreme Court that she had had contact with a physician who helped her understand the medical terms in the report. The journalist had thus either failed to include information that she was aware of, or paid too little attention to the report.

30. In spite of the fact that the newspaper had held information indicating that what it wrote about the operations on C and G was incomplete and misleading, it had not made any reservations and had not made clear what was reproduction of the patients’ accusations against the physicians. On the contrary, the newspaper – especially in editorials – had made accusations against A on its own behalf and had presented the accusations as if they were objective truths.

31. Even if there had been a clear general interest in revealing errors, and the Board of Health Supervision’s review of the case had shown that there had been grounds for criticism of the hospital for breach of the division of functions (see paragraphs 4, 6, 12 and 13 above), and although it was clearly within the newspaper’s journalistic freedom to illustrate its coverage of the breach of the division of functions by specific patient histories, the newspaper could not fail to include information that it had already had at hand, which had indicated that the patient histories gave a clearly incomplete and misleading picture of the case. Not even when the Board had announced its decision in the case (see paragraph 19 above) had the newspaper made any whole-hearted attempt to rectify the incorrect picture it had given of the operations in question.

32. On the basis of an overall assessment, the Supreme Court concluded that the newspaper’s accusations against A had been unlawful. The conditions for awarding redress to A were thus met. In addition, it was reasonable that the newspaper be ordered to pay such compensation.

33. In determining the amount, the Supreme Court did not find grounds to depart from the amount of NOK 400,000 fixed by the District Court (see paragraph 21 above) after all evidence had been presented directly before that court. That amount was proportionate. Reference was made to Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99, § 93, ECHR 2004‑XI.

34. A had won the case and should be awarded costs. Before the Supreme Court he had claimed NOK 1,090,063 (approximately EUR 112,000), of which NOK 771,650 referred to the lawyer’s fees. The claim for fees appeared to be high, but the case had required extensive preparation, including a thorough examination of the case-law of the Court. The applicant company had not contested the claim and had submitted a cost statement in which the claim for fees was significantly higher. A’s claim was therefore accepted. The claim for fees before the High Court amounted to NOK 271,443 (approximately EUR 28,000). This claim was also significantly lower than the newspaper’s corresponding claim for costs and was allowed. No changes were made to the District Court’s decision on costs (see paragraph 21 above).

35. Following the above, the Supreme Court unanimously affirmed the District Court’s judgment and ordered the applicant company to compensate A’s legal costs before the High Court and the Supreme Court.

B. Relevant domestic law and practice

36. The relevant parts of section 3-6 of the Compensation Act (skadeserstatningsloven) read:

“§ 3–6 (compensation for defamation and infringement of privacy).

Anybody who commits libel or slander or infringes the privacy of another person shall, if he has been negligent or the conditions for imposing punishment are fulfilled, pay compensation for the injury sustained and such compensation for loss of future earnings as the court finds reasonable with due regard to the degree of guilt and other circumstances. He may also be ordered to pay such compensation (redress) for non‑financial injury as the court finds reasonable.

If the offence takes the form of libel, and anybody who has acted in the service of the owner or publisher of the printed matter is responsible under the preceding paragraph, the owner and publisher too are liable for the compensation. The same rule applies to any redress imposed under the preceding paragraph, unless the court for special reasons decides to exempt them. The owner or publisher may also be ordered to pay such additional redress as the court finds reasonable in regard to them. ...”

37. Conditions for holding a defendant liable for defamation were further set out in Chapter 23 of the Penal Code (straffeloven), of which the provision relevant to the present case was Article 247, which provided:

“Article 247. Any person who, by word or deed, behaves in a manner that is likely to harm another person’s good name and reputation or to expose him to hatred, contempt, or loss of the confidence necessary for his position or business, or who is accessory thereto, shall be liable to fines or imprisonment for a term not exceeding one year. If the defamation is committed in print or in broadcasting, or otherwise under especially aggravating circumstances, imprisonment for a term not exceeding two years may be imposed.”

A limitation to the applicability of Article 247 followed from the Supreme Court having interpreted it to include a requirement that the expression must be unlawful (rettsstridig).

COMPLAINT

38. The applicant company complained that the imposition of liability for redress and the order to compensate A’s litigation costs violated its right to freedom of expression as enshrined in Article 10 of the Convention.

THE LAW

39. The applicant complained that the liability for redress and A’s litigation costs entailed a breach of Article 10 of the Convention, which reads:

“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

40. The applicant company claimed that it was difficult from the wording of the Supreme Court’s judgment to establish for which allegation the applicant had actually been responsible. When establishing its overall impression of the coverage, the Supreme Court had failed to take account of the relevant context. Furthermore, the newspaper maintained that the Supreme Court had failed to interpret or assess the editorials as an opinion contributing to an ongoing debate on an issue of considerable public interest. The impugned statements had emanated from patient interviews and the applicant had acted in good faith. Moreover, the newspaper referred to the public interest in the case; argued that punishing it for publishing interviews would have a chilling effect; submitted that medical doctors at a public hospital had to accept wide limits for criticism of their professional conduct; alleged that the opinion pieces had had sufficient factual basis; put forward that the consequences had not been discernible for A, and argued that the reaction had been severe.

41. The Court notes at the outset that the imposition of liability on the newspaper constituted a restriction of the newspaper’s exercise of its right to freedom of expression under Article 10 of the Convention. Furthermore, the Court observes that the restriction had a legal basis in section 3-6 of the Compensation Act and Article 247 of the Penal Code (see paragraphs 36-37 above) and aimed to protect the “reputation or rights of others”, namely A, in accordance with the second paragraph of Article 10.

42. The general principles concerning the necessity of any interference with freedom of expression in a democratic society have been frequently reaffirmed by the Court (see, among many authorities, Bédat v. Switzerland [GC], no. 56925/08, § 48, ECHR 2016; and Baka v. Hungary [GC], no. 20261/12, § 158, ECHR 2016). The Court reiterates in particular that the Contracting States have a certain margin of appreciation in assessing whether and to what extent an interference with the freedom of expression protected by Article 10 is necessary, and that in a case such as the present, it must ascertain whether the domestic authorities struck a fair balance between the competing interests at stake, which in the present case were the protection of freedom of expression as enshrined in Article 10 of the Convention and the protection of the reputation and honour of A, a right which is protected by Article 8 as part of the right to respect for private life (see, among many authorities, Axel Springer AG, cited above, §§ 83-85). In its case-law, the Court has identified a number of relevant criteria where the right to freedom of expression is being balanced against the right to respect for private life (see Axel Springer AG, cited above, §§ 89-95, and Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, §§ 108-113, ECHR 2012). Where the balancing exercise has been undertaken by the national authorities in conformity with the criteria laid down in the Court’s case-law, the Court would require strong reasons to substitute its view for that of the domestic courts (see Axel Springer AG, cited above, § 88).

43. Turning to the instant case, the Court notes that the articles in question concerned alleged irregularities in public health care. The Supreme Court stated that debate on public health care was a topic of great public interest and that the newspaper’s coverage was in the core of what was protected by Article 10 of the Convention (see paragraph 26 above). The Court agrees. Accordingly, the newspaper’s coverage attracted a high level of protection under Article 10 of the Convention (see, among many authorities, Morice v. France [GC], no. 29369/10, § 125, ECHR 2015).

44. The Supreme Court considered that the accusations that A had operated on patients and removed organs for no reason and, as to C, without consent (see, in particular, paragraph 26 above) were serious and capable of causing great harm; A’s name and picture were published; and, though there were elements of value judgments in the articles, they also contained considerable elements of factual statements (ibid.). The Court accepts that the allegations attained the requisite level of seriousness so as to cause prejudice to A’s rights under Article 8 (see, for example, Axel Springer AG, cited above, § 83).

45. Furthermore, the Supreme Court found that the newspaper’s articles had been clearly incomplete and misleading, as well as contradictory to information in the newspaper’s possession (see paragraphs 27 and 30-31 above). Furthermore, it transpires from its judgment that the Supreme Court asserted that the newspaper had not acted professionally and in good faith in order to provide accurate and reliable information in accordance with the tenets of responsible journalism (see, in particular, paragraph 29 above), which is a proviso for affording protection to journalists under Article 10 of the Convention, as set out by the Court in cases such as Axel Springer AG, cited above, § 93).

46. The Court, observing that the Supreme Court relied on an acceptable assessment of the relevant facts, does not see reason to depart from that court’s above findings.

47. As to the nature and severity of the reaction, and the question of its “chilling effect”, the Court notes that the applicant company was ordered to pay redress to the extent of NOK 400,000, approximately EUR 41,000. The Court does not find that the amount of the redress liability was excessive.

48. A also recovered a total of NOK 1,680,117, approximately EUR 172,000, in costs (see paragraphs 21-22 and 34). Having won the case, the Court does not find that awarding A compensation for his costs rendered the interference with the newspaper’s right to freedom of expression (see paragraph 41 above) disproportionate. As to the amount, the Court notes that the newspaper did not make any objections against A’s statements of costs and did not submit any other arguments against either the liability for, or the extent of, the costs before the domestic courts. The newspaper’s own claims exceeded those submitted by A, and regard must be had to the general level of expenses in the jurisdiction (see, mutatis mutandis, Independent Newspapers (Ireland) Limited v. Ireland, no. 28199/15, § 84, 15 June 2017, with further references). In the circumstances, the Court does not find that the order to cover A’s expenses, viewed either in isolation or in conjunction with the decision on redress (see paragraphs 21 and 33 above), made the interference disproportionate.

49. In the light of the foregoing, the Court considers that the Supreme Court advanced relevant and sufficient reasons for its decision to impose liability on the applicant company and that the interference that this entailed was proportionate to the legitimate aim pursued. Furthermore, the Court finds that the Supreme Court carried out the exercise of balancing the interests protected by Articles 10 and 8 of the Convention, respectively, in conformity with the criteria laid down in the Court’s case-law and that, while opinions on the outcome may differ, there are no strong reasons for the Court to substitute the Supreme Court’s assessment with one of its own.

50. It follows that the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 22 March 2018.

              Anne-Marie DouginSíofra O’Leary
              Acting Deputy RegistrarPresident

 

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