Legal summary
August 2024
Bielau v. Austria - 20007/22
Judgment 27.8.2024 [Section IV]
Article 10
Article 10-1
Freedom of expression
Suspended disciplinary fine imposed on practising doctor for making scientifically untenable statements about vaccines’ ineffectiveness: no violation
Facts – The applicant is a general practitioner and has a “holistic medicine” website on which he describes himself as a practice for self-healing and homeopathy as well as an author and expert on vaccinations and vaccine damage. Following an article about the ineffectiveness of vaccines posted on this website, the Disciplinary Council of the Austrian Medical Association found the applicant guilty of disciplinary offences. It found that, in the article on vaccination, he had made statements in a one-sided and negative manner (i) denying the existence of pathogenic viruses; (ii) claiming that vaccinations never protected against diseases; (iii) claiming that nature knew no diseases; and (iv) claiming that not a single disease had disappeared through vaccination. By providing unobjective information the applicant had damaged the reputation of the medical profession. The Disciplinary Council fined the applicant EUR 2,000, suspended pending a probationary period of one year.
The applicant complained unsuccessfully before the domestic courts.
Law – Article 10:
(i) Lawfulness of the interference – Domestic courts, in upholding the disciplinary sanction, had relied on section 53 of the Medical Practitioners Act, read in conjunction with the Regulation on Medical Practitioners and the Public, and sections 136 and 139 of the Medical Practitioners Act. These provisions were sufficiently precise, in view of the definitions contained in the Regulation on Medical Practitioners and the Public. The case‑law of the Supreme Administrative Court that pre- and post-dated the applicant’s case confirmed the consistent interpretation of these provisions in similar cases. The interference was therefore “prescribed by law”.
(ii) Legitimacy of the aim pursued – The aim of the measure was the “protection of health”, as well as “the protection of the rights of others”, as provided for in Article 10 § 2 of the Convention.
(iii) Necessity of the interference – The domestic courts had found that the information on the issues of vaccination posted on the applicant’s website had been purely one-sided and negative. Domestic court practice did not generally prohibit being critical of vaccination but rather called for a more nuanced criticism, in particular if statements were made by doctors. In the present case, however, the applicant’s negative statements had been categorical.
The applicant was a doctor and the information posted on his website had been found not to be in line with the current state of medical science, some not even in line with reason according to expert reports. The Court observed the potentially very wide impact of the applicant’s statements as they had been published on a website which was connected to his medical practice and therefore very easily accessible to everyone, including, in particular, medical laypersons. Emphasizing its findings in its previous case-law concerning the special duties of doctors and the importance and positive effects of vaccination, as well as the general consensus among Contracting Parties, strongly supported by the specialised international bodies, that vaccination was one of the most successful and cost-effective health interventions and that each State should aim to achieve the highest possible level of vaccination among its population, the Court reiterated that States were under a positive obligation, by virtue notably of Articles 2 and 8 of the Convention, to take appropriate measures to protect the life and health of those within their jurisdiction.
Practising doctors enjoyed freedom of expression under Article 10 and had the right to participate in debates on public health issues, including expressing critical and minority opinions. The exercise of that right was not, however, without limits, particularly when connected to the exercise of their profession. Because of their expert knowledge in the medical field and the professional services offered in the interest of public health, they had a key role to play in the context of public health debates. They could be submitted to professional obligations in line with their duties and responsibilities under Article 10 § 2.
In the present case, the statements had been not only categorical, but scientifically untenable. Moreover, the applicant had made the impugned statements on his website in connection with his medical practice and thereby clearly advertising his services.
Lastly, the sanction imposed on the applicant had concerned a disciplinary rather than a criminal sanction, in the form of a fine of EUR 2,000, an amount which, according to the domestic courts, had been less than the estimated average monthly income of a doctor. The amount had been very low in view of the possible scale of the fine – which could amount to up to EUR 36,340. The fine had also been suspended pending a probationary period of one year, this duration also being at the lower end of the range of possibilities provided for by law. The disciplinary sanction at issue could not therefore be considered disproportionate.
(iv) Conclusion – The Court concluded that the domestic courts had given relevant and sufficient reasons in striking a fair balance between the competing interests of the general public and of the applicant’s freedom of expression. The disciplinary sanction imposed on the applicant in the form of a suspended fine of a relatively low amount for making scientifically untenable statements about the ineffectiveness of vaccines on his website and thus in connection with his medical practice had not exceeded the margin of appreciation so that the impugned measure could be regarded as “necessary in a democratic society”.
Conclusion: no violation (by six votes to one).
(See also Frankowicz v. Poland, 53025/99, 16 December 2008, Legal Summary; Vavřička and Others v. the Czech Republic [GC], 47621/13 et al., 8 April 2021, Legal Summary)
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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