Information Note on the Court’s case-law No. 105
February 2008
Villnow v. Belgium - 16938/05
Decision 29.1.2008 [Section II]
Article 10
Article 10-1
Freedom to impart information
Disciplinary penalty imposed on a doctor for advertising his cosmetic-surgery practice: inadmissible
The applicant is a cosmetic surgeon. Over a number of years, the company L. advertised hair transplants via various hairdressers, who received a commission, and also placed regular adverts in newspapers and advertising magazines and on the Internet. L. had its offices on the ground floor of the building where the applicant had his practice (on the first floor). When members of the public responded to company L.’s advertising, they were put in touch with the applicant. The applicant was summoned by the Medical Association and asked to justify in ethical terms the fact that he had advertised his practice through company L. The Medical Association found that he had been in serious breach of his ethical obligations and imposed a disciplinary sanction on him in the form of a thirty-one week ban on practising. The sanction was ultimately reduced on appeal to a six-month ban. The decision pointed out that, in accordance with the Code of Medical Ethics, medicine could in no circumstances be regarded as a commercial activity. In particular, it emphasised that the commercial nature of the applicant’s medical activities, supported by large-scale advertising by company L., despite the fact that, according to the Code of Medical Ethics they should have been carried on discreetly, had undermined the confidence of customers/patients in the medical and scientific value of those activities. The applicant appealed unsuccessfully on points of law.
Inadmissible under Article 10 – The temporary ban on practising medicine amounted to interference with the right to impart information freely. The interference had been “prescribed by law” (the Code of Medical Ethics) and had pursued legitimate aims relating to the protection of health and the rights of others. The Court stressed in that connection that practising medicine could not be equated with commercial activity, which was governed by its own set of rules. The task of a doctor was of a different nature, involving the protection of public health and entailing specific responsibilities towards the community.
As to whether the interference had been necessary in a democratic society, the domestic courts considered that the advertising in question had been used not as a means of providing information on the existence and usefulness of a particular form of treatment, but purely for publicity purposes, being aimed at persuading customers to undergo certain types of treatment and attracting custom to the detriment of fellow specialists. The Court took the view that medicine was not a commodity to be traded in exchange for money. In the vast majority of countries, the code of medical ethics contained specific provisions governing medical advertising. The Belgian Code was more precise, laying down an express prohibition on soliciting patients (which was essentially what the applicant had been criticised for) and imposing stringent conditions on advertising. In some countries, all forms of direct or indirect advertising were prohibited outright.
In addition, any surgery, even non-reconstructive cosmetic surgery of the kind in issue in the present case, entailed risks for the patient. This branch of surgery therefore had to be governed by conditions as stringent as those applied to reconstructive surgery. Accordingly, the reasons given by the domestic courts had been relevant and sufficient: manifestly ill-founded.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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