THIRD SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 26132/95
by BERGENS TIDENDE, Einar ERIKSEN and Berit KVALHEIM
against Norway
The European Court of Human Rights (Third Section) sitting on 29 June 1999 as a Chamber composed of
SirNicolas Bratza, President,
MrJ.-P. Costa,
MrsF. Tulkens,
MrW. Fuhrmann,
MrK. Jungwiert,
MrK. Traja, Judges,
MrS. Evju, ad hoc Judge,
withMrsS. Dollé, Section Registrar;
Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 13 September 1994 by Bergens Tidende, Einar Eriksen and Berit Kvalheim against Norway and registered on 5 January 1995 under file no. 26132/95;
Having regard to the report provided for in Rule 49 of the Rules of Court;
Having regard to the observations submitted by the respondent Government on 20 December 1996 and 16 June 1997 and the observations in reply submitted by the applicants on 21 March and 22 August 1997;
Having deliberated;
Decides as follows:
THE FACTS
The first applicant, Bergens Tidende, is a daily newspaper published in Bergen and is the largest regional newspaper of the Norwegian West Coast. The second applicant, Mr Einar Eriksen, was its former editor-in-chief and the third applicant, Mrs Berit Kvalheim, is a journalist employed by the newspaper. They were born respectively in 1933 and 1945 and both live in Bergen. The applicants are represented by Mr Anders C. Stray Ryssdal and Mr Pål W. Lorentzen, lawyers practising in Oslo and Bergen respectively.
The facts of the case, as submitted by the parties, may be summarised as follows.
Particular circumstances of the case
Dr R is a specialist in cosmetic surgery and received his training at Haukeland Hospital in Bergen in the 1970s. As from 1975 he worked in this field from his privately owned practice in Bergen.
On 5 March 1986, following the opening of a new clinic by R, Bergens Tidende published an article, prepared by the third applicant, which described R's work and the advantages of cosmetic surgery.
Subsequently, the newspaper was contacted by several women who had undergone such operations by R, but who had found this to be a very unfortunate experience for various reasons, in particular that breast operations had left them with ugly scars and physical and psychological suffering.
On 2 May 1986, Bergens Tidende published on the front page a text entitled "Beautification resulted in disfigurement", which included the following passage:
(Translation)
“We paid thousands of [Norwegian] kroner [NOK] and the only thing we’ve achieved is to be disfigured and ruined for life. Bergens Tidende has spoken with three women who have an almost identical story to tell about their experiences at a cosmetic surgery clinic in Bergen. All three underwent breast surgery at the clinic, and the results were extremely bad. They are warning other women.”
The caption under a photograph of a woman's bust read:
(Translation)
“This woman was tormented by her large breasts. Surgery resulted in disfiguring scars and a disproportionate bust.”
The inside of the paper contained, together with a large colour photograph showing a woman's breasts with disfiguring scars, the following article:
(Translation)
“Women ruined for life after ‘cosmetic surgery’
I paid NOK 6000 and all I achieved was disfigurement.
To say that I bitterly regret it is an understatement. I’ve been ruined for life and I’ll never be ‘my old self’ again.
The pain was unbearable. I was transformed into an anxious, trembling nervous wreck in the course of a few days, and I thought I was going to die.
These are the statements of three different women interviewed by Bergens Tidende. All of them, aged between 25 and 40 and resident in Bergen, share in common the fact that they have undergone cosmetic breast surgery, performed by Dr R, one of two specialists in plastic surgery with a private practice in Bergen.
The three women - who wish to remain anonymous - describe their ordeal as nightmarish. They all have internal and external scarring which they will have to live with for the rest of their lives.
I was operated on in May 1984, following a long period of great psychological problems due to a small and sagging bust after I had several children, said one of the women, who is 29 years-old.
Swollen bust
Immediately after the operation, I noticed there was something quite wrong. One of my breasts had swollen up and become hard and painful. When I consulted Dr R, he trivialised the whole matter, saying that it was nothing to worry about. It would pass. And I was told that under no circumstances should I contact another doctor.
For a whole week I lay at home in a dazed state of pain, swallowing Paralgin Forte[1] tablets as though they were sweets. I have never in my life taken anything stronger than Dispril[2] on the odd occasion. My bust swelled to grotesque proportions and was so sore that the slightest touch was unbearable.
It was impossible to get hold of Dr R. He had gone to Paris, and I didn’t dare contact another doctor. It’s only now that I realise how foolish I was.
Squirting prosthesis
The doctor's receptionist finally managed to get in touch with Dr R on the telephone in Paris, explained the gravity of the situation and made him travel directly from the airport to his office the night he returned home.
By this stage the pain was unbearable, and both then and later on I reacted strongly to the hard-handed treatment I was subjected to, says the woman. As I lay on the operating table, he ripped open the stitches and tore out the implant without any form of anaesthetic, so the contents of the prosthesis squirted over him, his assistant and myself.
The woman’s husband sat in the waiting room, listening to her cries of pain. The whole treatment took 13 minutes, and there was no talk of a rest afterwards. It was just a case of getting up from the operating table and walking out.
Three months’ sick leave
He gave us the feeling the whole time that we were an inconvenience and were taking up his precious time.
It took a long while for the woman to recover from her traumatic experience. She had to report sick and was away from work for three months. Her husband, too, was obliged to apply for leave from his job to stay at home with her for a period of time.
During this time she had a prosthesis in only one breast, and despite the daunting experiences she had been through, she contacted Dr R again to have a silicon implant inserted in the empty breast. This was repeatedly postponed, and she finally decided to terminate her relationship as a client of Dr R and contact another plastic surgeon. In doing so, she demanded her money back for the unsuccessful operation, and after some discussion he agreed to reimburse half of the costs.
No receipt
He did so with the following comment: I hope now that we are finished with one another for good. You have never been a patient here, and I have never seen you.
Since then the woman has also reacted to the financial side of Dr R’s activities. She had been informed beforehand that she would have to present the money - NOK 6000 - in cash, on the day of the operation. Even a cheque would be unacceptable, and she was not given a receipt.
Painful infection
A 37-year-old woman tells a similar story.
I wanted an operation because I have great problems with a disproportionately large, heavy bust that has caused shoulder and back pains. I checked first to see whether it was possible to get this type of operation done at the hospital, but was told that at best it would mean waiting a year. I therefore ended up at Dr R’s.
The result was four-five months of continuous, painful infection and a bust that looked much uglier than it had done earlier.
I paid NOK 6000 and the only thing I achieved was to do damage to myself, says the woman.
Disfiguring scars
The infection that occurred immediately after the operation caused the stitches to open, and sceptic sores developed. Once the wounds had healed, she was left with abnormally large, disfiguring scars, which prompted her to contact Dr R again and ask for the damage to be repaired.
He agreed to do so, and a new operation was scheduled. The woman, who had asked for three days off work in connection with the surgery, arrived at the agreed time but found the doors to the clinic locked. She returned home with the matter unresolved. When she called him privately later that day he was impertinent and threatened her directly, and the conversation ended with him slamming down the receiver, the woman said.
After this she gave up and she has not had any contact with the doctor since.
Waste
But it was a bitter feeling when I realised that I had invested a lot of time, money and mental energy in something that turned out to be not only a completely waste, but also did more harm than good.
This woman, too, says that she was asked to pay cash and was not given any form of receipt.
Deformed
The third woman interviewed by Bergens Tidende had a similar experience. The woman, 31, says: I had a breast augmentation done, and the very first day after the operation I discovered that something was wrong with one of my breasts. It was uneven, pointed to the right, and was rock-hard and sore. It’s still hard and uneven almost two years later. I feel completely deformed, and I dare not even think of showing myself on a beach, for example.
Complications
This woman, too, experienced complications after surgery, chiefly in the form of constantly recurring so-called ‘capsules’, i.e. part of the prosthesis hardened and had to be broken up again.
After a few weeks I just couldn’t take any more. By then I had lost confidence in Dr R and his methods of treatment, says the woman, who, like the two other women, reacted to his demand that she pay cash without being given a receipt.
She is also deeply shocked about what she feels is the offhand and nonchalant way in which she was treated on her first visit to the doctor’s.
I had an appointment at 12.30 p.m., but was told that he didn’t have time to see me. Would I rather come back another day? But I was so mentally prepared that it would be done that day - and I simply refused to go. It was now or never.
Bitter regrets
After three or four hours’ wait I finally lay on the operating table, and if there is anything I now regret, then it’s precisely that.
The operation was unsuccessful, I understood that immediately. After two or three weeks of repeated ‘treatment’ and half-hearted attempts by the doctor to remedy the blunder, however, I couldn’t stand it any more and I gave up.
Unbearable
The woman has made no effort to get back the money she paid. I couldn’t bear the thought of fighting - because I knew it would be a struggle.
Almost two years have passed since the calamitous surgery, but she has not yet been able to collect herself sufficiently after the frightening experience and contact another doctor to have her breasts operated on again.
I have to do it - because I can’t live with this. However, the bad experiences are so ingrained that I haven’t collected myself enough to do anything about it, she says.”
On 2 May 1986 Bergens Tidende also published an article entitled "Demanding form of surgery - Small margins between success and fiasco" and an interview of R entitled "There will always be dissatisfied patients".
Articles similar to the one of 2 May 1986 quoted above, accompanied by large colour photographs, were published on 3, 5, 7 and 9 May 1986, describing in detail how women had experienced their situation after allegedly failed operations and lack of care and follow-up by R. Some of the articles invited women to complain to the health authorities and to institute proceedings against the doctor. It was stated that the Health Directorate (Helsedirktoratet) would commence an investigation, that R might lose his licence to practise and that the question of a police investigation had been raised.
In an editorial dated 12 May 1986, Bergens Tidende stated that it would be in everyone's interest to “clarify whether the methods of treatment used were up to professional standard”.
Following the publication of these articles, seventeen former patients submitted complaints against R to the health authorities. On 8 October 1986 Mr Eskeland, the medical expert appointed to evaluate the situation, concluded that there was no reason to criticise R's surgical treatment of the patients. Mr Eskeland stated that the complications complained of were common in surgery and were bound to occur from time to time but were not due to shortcomings in R's surgery. In one case, he criticised R for having travelled abroad without informing a relatively newly operated patient. Mr Eskeland observed that, in the light of the
large number of patients treated by R - approximately 8,000 between 1975 and 1986 - the number of complaints had been moderate. Bearing in mind that the articles published by Bergens Tidende had invited R's former patients to complain it was surprising that not more patients had complained.
On 3 November 1986 the Health Directorate decided not to take any further action, finding that R had not performed improper surgery.
After the newspaper articles had been published Dr R received fewer patients and experienced financial difficulties. He had to close down his business in April 1989.
In the meantime, on 22 June 1987, R instituted defamation proceedings against the applicants claiming damages. By judgment of 12 April 1989 the Bergen City Court ordered the applicants to pay R a total of NOK 1,359,500 in respect of pecuniary and non-pecuniary damages and costs. The Court considered that R's economic loss would amount to several million kroner and that an assessment had to be made on a discretionary basis. It observed that, while the criticism against R had been made in an unjustified manner destroying the public's confidence in him as a surgeon, the criticism had been caused mainly by his own conduct. The Court deemed it appropriate to make an award corresponding to 75 % less than the amounts claimed.
The applicants and R appealed against the judgment to the Gulating High Court (lagmannsrett), which found for the applicants, stating inter alia:
(Translation)
"After hearing the evidence, the High Court finds that the articles give an essentially correct rendering of the women’s experiences as they themselves lived through them. As witnesses, they gave the impression to some extent that the newspapers had moderated their accounts. The High Court finds them credible and finds no reason to believe that their subjective experiences are not commensurate with what objectively took place - in other words they had reasonable grounds for feeling the way they did and the way the newspaper described. The High Court has more to go on than these three women’s statements. It has also been proven that the newspaper was contacted by a number of other women giving similar stories. Later, after the article on 3 May [1986] had been published with an appeal from NH to women to file a representative action, many more women got in touch, and the High Court finds it proven that this number was more than one hundred. This is based mainly on statements from [the second and third applicants] and NH, and some of these women have also appeared before the High Court as witnesses and given statements. These constitute only a minor part of all the women who contacted Bergens Tidende and NH. A total of fourteen dissatisfied women have given statements, and also the husband of one woman. However, it is largely the same story that is repeated again and again in the statements: There were complications or the result was bad, and the follow-up given by R was felt to be unsatisfactory and seemed to be rushed with little interest, some irritation and unwillingness. Some told how R seemed to be insensitive to their pain and discomfort, both mentally and physically. Some had the feeling that R would prefer to be finished with them after he had operated and that he had not organised post-operative treatment properly. Some of the women were worried that R had not given them proper post-operative treatment. The same theme is repeated - that many of the women were struck by the fact that R was keen when it came to the financial side, he wanted payment in advance, was unwilling to take cheques, and gave no receipt unless especially asked to do so.
...
On the basis of the above, the High Court finds it proven that R ran his practice in such a way that many of the women who suffered complications had experiences that gave them reasonable grounds to feel themselves exposed to poor care and to feel anxiety about the treatment they were given, and in several instances had reason to feel offended at R’s behaviour. The High Court finds that the experiences that are described in the article on 2 May [1986] are also representative of the experiences of very many other women.
The High Court thus finds that the three women in the article of 2 May [1986] were not especially sensitive and did not have exaggerated expectations, but that their stories are straightforward and reasonably subjective presentations of what had happened. Taking into consideration the information at hand about complaints from other women, the High Court also finds that it is not just a case of the odd exception. As far as R is concerned, it can reasonably be established that it is a question of unsatisfactory behaviour, which occurred quite often in the cases where something happened to necessitate an extra effort after the operations. That is not to say that he behaved in an unsatisfactory way in most cases or in a particularly large number of them. It is hardly a question of more than a minority of the cases. And it must be stressed that nothing has been said to prove that there really was a failure as regards R’s surgical competence.
But the fact that the unsatisfactory behaviour occurred in a number of cases must provide a basis for allowing criticism of R to come to light in the newspaper. Reference is made to what has been said above about the right of the general public and the consumer to be kept informed and their right to react by staying away to be on the safe side. There is also reason to point out that the people who contacted the newspaper in the first instance did so as a reaction to Bergens Tidende’s article on 5 March [1986], an article that presented a picture of the business without saying anything about the drawbacks. It was claimed on the part of Bergens Tidende that they felt obliged to let this criticism be heard after the article on 5 March, and the High Court finds this view very understandable.
[O]n 3 May [1986], Bergens Tidende ran an article in which NH describes how she experienced treatment at R’s clinic and urges women in similar situations to join forces in suing the doctor. The High Court finds it proven, in the same way as for the three women who were described on 2 May, that NH’s experiences were recounted correctly and that there are reasonable grounds for her subjective feelings as to what took place. The same applies to what was written on 5 May about the experience of a ‘26-year-old Bergen lady’. The High Court also finds that what was written on the same day about the telephone calls to NH (‘Storm of telephone calls’) is correct.
...
As far as the reproduction of the women’s experiences is concerned, what was printed in Bergens Tidende is thus in all essentials correct. And their subjective experiences were liable to give a picture of how treatment by R could turn out, not only in rare exceptional cases.
...
The striking part about the statements that R has challenged is that they report in strong language on the results of treatment by R: ‘disfigurement’, ‘ruined for life’, ‘mutilated’ and similar. That the statements are describing this as the result of R’s treatment is clear enough. But there is nothing in the statements that implies a lack of surgical ability on R’s part. And one must assume that newspaper readers know that a poor result after an operation need not be due to lack of surgical skill. It has been mentioned that the use of expressions like ‘ruined’, ‘was disfigured’ etc. bring to mind actions that are intended to ruin and disfigure and that the reader is therefore immediately given to believe that some person - i.e. R - is guilty of such actions. The High Court does not find that, linguistically speaking, the statements apply to anything other than the purely objective result.
Another question is whether the statements are misleading, because they give the impression that the consequences were more serious than they actually were. The High Court cannot see that this is the case - and especially not when one remembers that we are talking about the reporting of the women’s subjective opinions. ‘Disfigured’ means having an ugly mark of some significance on one’s body, and in the opinion of the High Court the women who use this expression according to Bergens Tidende, have good reason for doing so. Much the same can be said about 'mutilated'. 'Ruined' must presumably be understood to be a somewhat stronger expression, but must be justified in the case of women whose breasts have large scars or have become lopsided, hard, different, or tender to touch, in view of the effect this must have on the woman’s relationship not only with her husband, but also in many other ways - one can imagine what it must mean not to be able to give one’s child or grandchild a hug because of tender or hard breasts. These are some of the results in question in the cases on which the newspaper has based its statements, according to what the Court finds proven after hearing the witnesses.
While the statements can thus not be said to be a direct allegation of a lack of surgical ability on R’s part, Bergens Tidende does not make it clear either that there was no lack of ability. And both the individual statements and the articles in their entirety give the impression that the question is being raised of whether R always gave treatment that was medically up to standard. In light of the women’s information, however, this was a natural question to ask; several of the women mentioned it, and anyone who reads the accounts alone would be inclined to ask that question. It can therefore not be unlawful for Bergens Tidende to air this question. R also complains that Bergens Tidende conducted a veritable campaign and personal vendetta against him. The High Court does not find this to be the
case. Especially [because] the newspaper had to have the right to believe that women should think twice about consulting R and to write articles with this in mind.
...
In brief, the opinion of the High Court can be summarised as follows:
In R’s practice there were a not inconsiderable number of cases of poor follow‑up and behaviour and similar, which gave many women reasonable grounds for feeling disappointed and badly treated. The High Court bases this assessment of evidence in all essentials on the women’s statements and behaviour otherwise in court. Bergens Tidende was entitled to write about this and to repeat the women’s subjective experiences of the treatment. The newspaper did this in a manner that was correct in all essentials. In so far as the newspaper articles might have given the impression that there could be reason to question R’s professional ability, this is no more than a suspicion which his behaviour gave reasonable grounds for and which it must therefore have been right to report on. If this led to financial losses for R, it was because of the extremely sensitive activities he was engaged in.
[The applicants] are therefore discharged from liability to pay damages, and the High Court will not go into the question of the size of R’s financial losses.
Moreover, the High Court does not find it possible to allow the claim for non-pecuniary damages and, referring to what can be seen above, it does not find that any of Bergens Tidende’s coverage of R was unlawful.”
R appealed against the above judgment to the Supreme Court (Høyesterett). In his submission, the City Court's judgment was in principle correct, except that no reduction should have been made of the award on grounds of shortcomings on his part. In his opinion, even if the High Court's assessment of the evidence concerning lack of care and follow-up were to be accepted, this could only have a marginal effect on the amount of compensation. He maintained, inter alia, that the newspaper articles had amounted to a public execution of him as a plastic surgeon, by their strong emphasis on unsuccessful operations and by giving the readers the impression that he was incompetent. Furthermore, he had not been given a proper opportunity to reply to the criticism before the publications were printed. In his view, the defendants’ conduct had been grossly negligent.
The applicants emphasised that the impugned news coverage concerned above all the situation of a quite large number of women with whom the newspaper had been in contact, directly or indirectly, and who had complained about lack of care and follow-up after unsuccessful operations. They had also complained about lack of information before the operations. The articles conveyed the women's feelings and frustrations as expressed in their own words. Whether R was a good or a bad surgeon had not been decisive.
On 22 December 1992 the Supreme Court's Appeals Selection Committee (kjæremålsutvalg) decided to dismiss the appeal in so far as it concerned the High Court's assessment of the evidence relating to the issue of R's lack of care and follow-up of his patients, and to allow the appeal for the remainder to proceed.
In a judgment of 23 March 1994 the Supreme Court held in favour of R and awarded him amounts totalling NOK 4,709,861 in respect of damages and costs. Mr Justice Backer stated, inter alia, on behalf of a unanimous Court:
(Translation)
“By way of introduction I note that newspapers of course have a right to emphasise questionable aspects of cosmetic surgery and to illustrate their presentation with information about unfortunate incidents. They should also be able to pinpoint critical aspects of an individual surgeon's business and here the journalist in question must be granted a wide leeway for subjective considerations. But outright incorrect factual information of a negative character must be considered defamatory. The fact that the newspaper just repeats the accusations made by others will, according to established case-law, not in principle constitute a defence.
Accordingly, it will be necessary to consider the individual articles in order to establish their contents in relation to the rules on defamation. In interpreting the articles one should take as a starting point the impression which they, as a whole, will make on the ordinary reader, while attaching greater weight to the headlines and the introductions than to the text presented in normal characters. The High Court considered that the particularly interested reader would read the entire news report meticulously and thereby obtain a more balanced view than the reader who only takes a cursory look at the news report. I find it difficult to attach particular importance to this consideration. Even those who read the news report as a whole would easily be influenced by value judgments in headlines etc. Furthermore, the news report addresses the general public and will thus affect the doctor's reputation as such. Unlike the High Court, I cannot see that one can generally assume that readers would be aware that a bad result of an operation is not necessarily due to a lack of surgical skills.
...
The news report of 2 May 1986 were based on the positive articles of 5 March and the comments [the newspaper] had received from dissatisfied patients. It describes the situation of three women who had undergone a breast operation involving silicon implants and who had subsequently experienced problems. On page one there is a two-column headline ‘embellishment turned to disfigurement’ followed by a picture of a woman's breasts disfigured by scars. In quotation marks it reads: ‘We paid thousands of kroner and did not obtain anything but disfigurement and destruction for life’. Inside the newspaper an entire page is reserved for the news report. There is a headline covering seven columns ‘Women ruined for life following cosmetic surgery’. The same picture as on the front page is printed over five columns. Below the pictures it is written: ‘Enormous scars, wrinkled breasts and a long painful inflammation were the consequences of the cosmetic surgery on this woman’. The article commences with three points in bold print, which read:
‘I paid NOK 6000 and all I achieved was disfigurement.
To say that I bitterly regret it is an understatement. I’ve been ruined for life and I’ll never by ‘my old self’ again.
The pain was unbearable. I was transformed into an anxious, trembling nervous wreck in the course of a few days, and I thought I was going to die.’
In the article it appears from the women's statements that they contacted Dr R following an inflammation and other complications and that they were unhappy with the treatment they received. I understand this to relate both to the service and the result of the treatment.
At the bottom of the page there is an interview with Dr R with the headline ‘There will always be dissatisfied patients’. In the course of the proceedings, it has been submitted that [the third applicant] had contacted Dr R on 30 April and had asked him to comment, stating that the three women had told her that they had released R from his obligation to observe professional secrecy. However, referring to this obligation, R had refused to comment on specific cases.
At the bottom of the page there is furthermore an interview with another specialist in cosmetic surgery ... with the headline ‘Demanding form of surgery - Small margins between success and fiasco’.
The following day, on 3 May [1986], a new article appeared. On the front page a headline covering two columns reads ‘Action against the breast doctor’. Inside the newspaper there is a headline covering five columns ‘Institute proceedings against the doctor’. It is the former patient [NH] who appears and explains about experiences similar to the three women from the articles published the day before. She invites everybody in the same situation to get together in a case against Dr R. There is also an interview with the County Chief Physician (Fylkeslegen) who states that dissatisfied patients may complain to him. Furthermore, there is an article covering five columns with the headline ‘The doctor must provide receipts’. It is here complained that Dr R allegedly requested payment without providing receipts therefor. It is indicated that this might interest both the tax authorities and the social authorities.
In the article of 5 May [1986] the front page contains a one column headline ‘NOK 12,000 - the breasts ruined’. The headline is repeated over seven columns inside the newspaper with a small amendment without importance to its contents. Here a woman explains how she underwent two breast operations by Dr R with a bad result. Further, there is a headline covering four columns ‘Control virtually impossible’ followed by an article in which the County Chief Tax Inspector [Fylkesskattesjefen] is interviewed. Covering two columns there is a framed article with the headline ‘Telephone storm: to the extent I could not sleep’. It is NH who recalls how she received telephone calls from a number of women who submit very ‘strong’ stories about their experiences with R.
In the articles of 7 May [1986] this is followed up. The front page shows a headline covering four columns ‘Telephone storm from the persons operated’. Furthermore there is a picture covering two columns of one of the breasts of a former patient, GS, where the point is that the stitches were not removed, in addition to disfiguring scars. Inside the newspaper there is a headline covering five columns ‘Telephone storm following criticism against fashion doctor, had no idea we were so many’. NH recalls in an interview that she has talked to at least 50 persons who have all frightening experiences to contribute. Three of these cases are explained. Further, there is a three-column picture of GS' breasts. Connected thereto there is a four-column headline ‘GS (28) was operated on in 1984. The stitches are still there’. The article explains that she contacted Dr R's office after the operation in order to have the stitches removed but was told to do this herself, as a pair of appropriate pincers was not available. Further, there is an article with the headline covering three columns ‘Probably no investigation’, in which the State Prosecutor is interviewed.
In the last articles of 9 May the front page contains a headline covering four columns ‘Breast doctor is being investigated’. It is stated that according to the acting health director the Health Directorate would immediately contact the County Chief Physician in order to carry out a thorough investigation of Dr R and his practice, and the newspaper draws attention to the question whether the doctor may lose his licence. Inside the newspaper there is a four-column headline related to the same operation. Furthermore, there is a similar headline ‘Cannot do anything’: Advocate ÅH of the Norwegian Doctors’ Association states to the newspaper that the association cannot examine complaints about the doctor’s medical practice but only complaints which relate to the doctor’s behavioural and humane treatment of patients.
The first question, which arises when evaluating the series of articles, is whether the criticism of Dr R may be characterised as an accusation and what its contents may be. Dr R himself maintains that he is accused of malpractice and that insufficiencies in respect of his work as a surgeon will be of central importance. The defendants maintain on the other hand that the criticism does not concern this but relates to lack of information, care and follow-up treatment which is a part of the medical treatment. The High Court found that evidence had been submitted proving the truth that deficiencies in care and follow-up treatment had occurred. Since the appeal concerning the evaluation of evidence on this point has been refused, the Supreme Court is bound by the evaluation made by the High Court.
The articles concern the situation of women who have experienced complications after an operation or when the original operation failed. They are in despair due to the result of the treatment and complain about the reluctance and carelessness on the part of Dr R as regards rectifying what went wrong. In my opinion the articles in [the newspaper] appear at the same time to be a strong attack on Dr R's qualifications as a cosmetic surgeon without taking sufficiently into account the usual risk of unsuccessful operations. The statements that the women were disfigured and ruined for life and the many other strong statements, in particular in the articles of 2 May 1986, which set the tone for the other articles, can hardly be understood otherwise than as referring to a great extent to the result of the treatment where the surgical element is essential. This is also how the County Chief Physician, the Health Directorate and Professor E understood the articles. Initially it appears that [the newspaper] was of the same opinion. In an editorial of 12 May 1986 satisfaction is accordingly expressed the fact that the health authorities would now make a thorough examination of a ‘breast doctor from Bergen’ in order to ‘clarify whether the methods of treatment which are used comply with the professional standards’. Since it must have been apparent that the articles would completely destroy his business, it may also be questioned whether [the newspaper's] series of articles concerning Dr R could be explained in any other way than that they reflected [the newspaper’s] opinion that the circumstances involved reckless surgical activity which ought to be brought to the attention of the public.
In these circumstances - contrary to the findings of the High Court - I have reached the conclusion that the articles contain an accusation against Dr R that he performed his surgical activities in a reckless way - an accusation which I must hold to be incorrect.
The next question is whether the resulting defamation should for special reasons not be considered to be unlawful. Among other things the newspaper has referred to its particular duty to attend to the interests of the consumers and to the fact that the accusation against Dr R as a whole concerning improper treatment was nevertheless to a great extent correct. On the other hand, Dr R has criticised the newspaper's handling of the case and has furthermore referred to Article 249 § 2 of the Penal Code.
When a newspaper makes such strong criticism as in this case I consider that Dr R ought to have had the possibilities of a proper defence. No time element prevented this. When approached on 30 April Dr R could not make any statements about the concrete case without being released by the patients themselves from his duty to maintain professional secrecy and he did not have a duty to contact the patients himself for that purpose. I also find that [the third applicant] - and the newspaper - must be criticised for a lack of balance in the articles and for using unnecessarily strong and to some extent misleading expressions. That [the third applicant] was quoting the interviewees is no excuse for disregarding completely Dr R's right to protection of privacy. That the women had a subjective and strong emotional point of view to what they had experienced is understandable. But it is another matter to publish the statements to a larger group of readers who would expect that these at least in their essentials covered the objective truth. Even though there is reason to give a wide margin to freedom of expression in order to enable the newspapers to fulfil their function in society I cannot but reach the conclusion that the line has been overstepped. ... . I see no reason to go into the issue of Article 249 § 2.
The submission that the main content of the accusation has been proven is based on the High Court's assessment of the evidence as far as lack of care and follow-up are concerned.
The High Court's assessment of the evidence on this point can bee seen from remarks spread over several pages of its judgment, especially at pp. 11 to 14. On p. 12 it stated:
'On the basis of the above, the High Court finds it proven that R ran his practice in such a way that many of the women who suffered complications had experiences that gave them reasonable grounds to feel themselves exposed to poor care and to feel anxiety about the treatment they were given, and in several instances had reason to feel offended at R’s behaviour.'
Furthermore, at p. 13 it held:
'As far as R is concerned, it can reasonably be established that it is a question of unsatisfactory behaviour, which occurred quite often in the cases where something happened to necessitate an extra effort after the operations. That is not to say that he behaved in an unsatisfactory way in most cases or in a particularly large number of them. It is hardly a question of more than a minority of the cases. And it must be stressed that nothing has been said to prove that there really was a failure as regards R’s surgical competence.'
In these circumstances I must conclude that the essential elements in the accusations found in the articles concerning Dr R have not been proven since the alleged deficiencies as regards the surgical activities, as set out in the articles, clearly overshadow the deficiencies concerning care and follow-up treatment. Furthermore, the accusations are unlawful.
In my opinion there can be no doubt that the articles have caused considerable financial losses, in addition to non-pecuniary damage, for Dr R. It would have been strange if [his clinic] had survived the very negative comments in the articles of [the newspaper]. From a commercial point of view cosmetic surgery is very sensitive to all which might shatter the potential patients' faith in the operating doctor. The defendants must have been aware of this.
The calculation of Dr R's loss involves many elements of uncertainty. In no circumstance could he have been able to count automatically on continuing a thriving and profitable business as a private cosmetic surgeon for the rest of his life until his reaching the age of retirement. Even a neutral, objective and, from any point of view, appropriate criticism would have been very damaging to him. ...
Dr R shall be granted compensation under section 3-6 of the Damage Compensation Act from [the first applicant] in respect of damage, loss of future income and suffering. As regards the two last points the Court has a wide margin of appreciation according to [the applicable legislation]. But also as regards the first point Dr R's own conduct may be taken into consideration. ...
... I have reached the conclusion that the compensation for the damage done, i.e. loss of income plus interest as from 1986 until this judgment ought to be fixed at NOK 2,000,000. As regards the other requests for damages submitted by Dr R ... I consider that this should be fixed on an equitable basis at NOK 200,000.
Compensation in respect of loss of future income is fixed at NOK 500,000. Further, the reparation to be paid by [the first applicant] is fixed at NOK 1,000,000. When fixing the reparation regard has been had to the exceptional pressure which Dr R has endured over a long period of time due to the series of articles.
Reparation from [the second and third applicants] is fixed at NOK 25,000 from each.”
Finally, the Supreme Court awarded R NOK 959,861 in respect of costs incurred in the proceedings before it and before the lower courts.
Relevant domestic law and practice
Under Norwegian defamation law, there are three kinds of responses to unlawful defamation, namely the imposition of a penalty under the provisions of the Penal Code, an order under its Article 253 declaring the defamatory allegation null and void (mortifikasjon) and an order under the Damage Compensation Act 1969 (Skadeserstatningsloven) Law of 13 June 1969 no. 26) to pay compensation to the aggrieved party. Only the latter was at issue in the present case.
Section 3-6 of the aforementioned Act reads:
(Translation)
"A person who has injured the honour or infringed the privacy of another person shall, if he has displayed negligence or if the conditions for imposing a penalty are fulfilled, pay compensation for the damage sustained and such compensation for loss of future earnings as the court deems reasonable, having regard to the degree of negligence and other circumstances. He may also be ordered to pay such compensation for non-pecuniary damage as the court deems reasonable.
If the infringement has occurred in the form of printed matter, and the person who has acted in the service of the owner or the publisher thereof is responsible under the first subsection, the owner and publisher are also liable to pay the compensation. The same applies to any redress ordered under the first subsection, unless the court finds that there are special grounds for dispensing them. …"
The conditions for holding a defendant liable for defamation are set out in Chapter 23 of the Penal Code, Articles 246 and 247 of which provide:
(Translation)
“Article 246. Any person who by word or deed unlawfully defames another person, or who is accessory thereto, shall be liable to fines or imprisonment for a term not exceeding six months.
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 follows from the requirement that the expression must be unlawful ("rettstridig"). While this is expressly stated in Article 246, Article 247 has been interpreted by the Supreme Court to include such a requirement.
In a civil case concerning pre-trial reporting by a newspaper, the Supreme Court found for the newspaper, relying on the reservation of lawfulness ("rettsstridsreservasjonen"), even though the impugned expressions had been deemed defamatory. It held that, in determining the scope of this limitation, particular weight should be attached to whether the case was of public interest, having regard to the nature of the issues and to the kind of parties involved. Furthermore, regard should be had to the context in which, and the background against which, the statements had been made. Moreover, it was of great importance whether the news item had presented the case in a sober and balanced manner and had been aimed at highlighting the subject-matter and the object of the case (Norsk Retstidende 1990, p. 636, at p. 640).
Further limitations to the application of Article 247 are contained in Article 249, which, in so far as is relevant, reads:
(Translation)
“Article 249
1. Punishment may not be imposed under Articles 246 and 247 if evidence proving the truth of the accusations is adduced. …”
As regards the requirement of proof under Article 249 § 1, the same standard which applies to the author of a libellous statement applies in principle also to a person who disseminates it. It is not clear under Norwegian law whether the criminal law standard of proof beyond reasonable doubt or the civil-law standard of balance of probability applies. In a judgment of 1988 (Norsk retstidende, 1988, p. 1398), the Supreme Court accepted the standard applied by the lower court in a criminal libel case concerning allegations made in a television programme and a newspaper that a private practising lawyer had recommended his spouse to commit tax offences in connection with a property sale. In view of the seriousness of the accusation, it was found appropriate in that case to apply the same standard of proof as would apply to a public prosecutor in criminal proceedings on tax evasion. Leading legal writers are of the opinion that the truth of a defamatory accusation of theft must, in order to discharge the defendant from liability, be proven according to the same standard as would apply to the prosecution in a theft case. According to Professor Mæland, it would be reasonable to increase the burden of proof according to the seriousness of the defamatory statement. Professor Andenæs and Professor Brattholm have expressed the view that, although there may be good reasons for imposing a strict burden of proof in libel cases, in certain circumstances it may be justified to apply a somewhat less strict standard than in criminal cases, for instance where the victim of the libel has behaved in a particularly reprehensible manner (see, H.J. Mæland, Ærekrenkelser, Universitetsforlaget, 1986, pp. 178‑179; and J. Andenæs and A. Brattholm, Spesiell strafferett, Universitetsforlaget, 1983, p. 196).
COMPLAINTS
The applicants complain that the Supreme Court's judgment of 23 March 1994 unjustifiably interfered with their right to freedom of expression under Article 10 of the Convention.
PROCEDURE
The application was introduced on 13 September 1994 and registered on 5 January 1995.
On 16 October 1996, the European Commission of Human Rights decided to communicate the application to the respondent Government.
The Government’s written observations were submitted on 20 December 1996 and 16 June 1997. The applicants replied on 21 March and 22 August 1997.
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.
THE LAW
The applicants allege that the Supreme Court's judgment of 23 March 1994 had unjustifiably interfered with their right to freedom of expression as guaranteed by 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.”
The applicants maintain that the Supreme Court mistakenly interpreted the press coverage made by Bergens Tidende as having been principally aimed at destroying the public's confidence in R's professional skills. The Supreme Court had based itself on an unfounded assumption to the effect that the news reports amounted to a full-scale attack on R's professional competence as a surgeon. It had thereby subjected their expressions - value judgments - to a stringent objective requirement of proof. The newspaper had not suggested that R lacked surgical skills but had made a truthful and accurate press coverage of the patients’ personal experiences and subjective impressions of treatment received at R’s clinic and had served a commendable purpose. Furthermore, the Supreme Court placed an excessive burden on newspapers by requiring that the reporting be entirely balanced and that R be given an opportunity to rebut the charges. It imposed an unprecedented requirement on the newspaper to obtain the consent of R's former patients to lift his duty of professional secrecy.
The Government submit that the Supreme Court's interpretation that the articles represented a full scale attack on R's professional competence as a surgeon was amply supported by a plain reading of the articles and was fully reasonable, falling within the discretion to be enjoyed by the domestic courts in such matters. The allegations to the effect that R had carried out his surgical activities in an unacceptable manner was not a value-judgment but a factual allegation susceptible of proof. A crucial point was that the applicants did not even prove substandard surgery in any of the specific cases referred to in the articles. Since Bergens Tidende took no steps to have R relieved of his obligation to observe professional secrecy, he had had no real opportunity to defend himself against the accusations. Nor did the newspaper investigate whether the accusations were well founded. The articles ruined R's business as a plastic surgeon. In the view of the Government, the restriction on the applicants’ freedom of expression could not be said to have been disproportionate to the legitimate aims pursued but was necessary in a democratic society. The Government invite the Court to declare the applicants' complaint of a violation of Article 10 inadmissible as being manifestly ill-founded.
The Court considers, in the light of the parties' submissions, that the case raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits of the application as a whole. The Court concludes, therefore, that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.
For these reasons, the Court, unanimously,
DECLARES THE APPLICATION ADMISSIBLE, without prejudging the merits of the case.
S. DolléN. Bratza
RegistrarPresident
[1] Paralgin Forte: strong painkiller, only obtainable by doctor’s prescription.
[2] Dispril: mild painkiller, available from chemists without a prescription.
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