Bergens Tidende & Ors. v. Norway

A plastic surgeon, Dr R., brought defamation proceedings against a major Norwegian newspaper, Bergens Tidende, as well as against the newspaper’s former editor-in-chief and a journalist employed at the paper. Dr. R. claimed that the applicants had published a series of articles recounting complaints of dissatisfied patients that portrayed his care and follow-up treatment as unprofessional and that he could not publicly refute the statements due to his patient confidentiality obligations.

The Bergen City Court found for Dr. R., but the Gulating High Court overturned its judgment, finding that the newspaper had given an “essentially accurate” account of the patients’ experiences at Dr R.’s clinic. Dr R. sought to appeal to the Supreme Court, which allowed his appeal in part. The Supreme Court found that the impugned articles contained unsubstantiated accusations of substandard care, and it ordered the applicants to pay damages to Dr R.

The applicants complained to the European Commission of Human Rights (Commission) that the Supreme Court’s judgment “unjustifiably interfered” with their right to freedom of expression under Article 10 of the European Convention on Human Rights (Convention) insofar as the Supreme Court had not allowed in its decision review of the central finding of the High Court regarding the truthful testimonies of Dr. R.’s patients. The Commission subsequently declared the application admissible to the European Court of Human Rights (Court). In the proceeding before the Court, the Government stressed the high cost of the public statements on both Dr. R.’s professional and personal life.

The Court found that Norway violated the applicants’ rights to freedom of expression under Article 10 of the European Convention on Human Rights. Publication of the articles had undoubtedly harmed the professional practice of Dr. R. However, the Court agreed with the national courts that it was “inevitable” that Dr. R’s highly criticized post-surgical care and follow-up treatment would have damaged his professional reputation regardless. Furthermore, the interest in protecting freedom of the press as a means to share justified public health concerns outweighed Dr. R.’s interest in protecting his professional reputation.

"51. The Court observes at the outset that the impugned articles, which recounted the personal experiences of a number of women who had undergone cosmetic surgery, concerned an important aspect of human health and as such raised serious issues affecting the public interest (see the Hertel v. Switzerland judgment of 25 August 1998, Reports 1998-VI, p. 2330, § 47). In this regard, the Court cannot accept the Government's submission that the grievances of a few patients concerning the standard of health care afforded by a particular surgeon are private matters between the patient and surgeon themselves and are not matters in which the community at large has an interest. Nor is the Court able to agree that the fact that the articles were not published as part of an ongoing general debate on the issues attached to cosmetic surgery, but were specifically focused on the standard of treatment provided at a single clinic, means that the articles did not relate to matters of general public interest. The Court notes, in this connection, that the articles concerned allegations of unacceptable health care provided at a private cosmetic surgery clinic in Bergen by Dr R. who, according to the evidence, had been responsible for carrying out over 8,000 operations in a period of some ten years, and as such raised matters of consumer protection of direct concern to the local and national public. Moreover, the publication of the articles must be seen against the background of an article published in Bergens Tidende some two months earlier, which described Dr R.'s work and the advantages of cosmetic surgery. As the High Court pointed out, it was in reaction to this article, which presented a favourable picture of Dr R.'s business without mentioning the drawbacks, that women who had undergone cosmetic surgery at Dr R.'s clinic were prompted to contact the applicant newspaper."