EUROPEAN COMMISSION OF HUMAN RIGHTS

                   Application No. 16632/90

                        Richard COLMAN

                            against

                      the UNITED KINGDOM

                   REPORT OF THE COMMISSION

                  adopted on 19 October 1992

TABLE OF CONTENTS

                                                          Page

I.   INTRODUCTION

     (paras. 1 - 12). . . . . . . . . . . . . . . . . . .1 - 2

     A.   The Application

          (paras. 2 - 4). . . . . . . . . . . . . . . . . . .1

     B.   The Proceedings

          (paras. 5 - 7). . . . . . . . . . . . . . . . . . .1

     C.   The Present Report

          (paras. 8 - 12) . . . . . . . . . . . . . . . . . .2

II.  ESTABLISHMENT OF THE FACTS

     (paras. 13 - 29) . . . . . . . . . . . . . . . . . 3 - 11

     A.   The particular circumstances of the case

          (paras. 13-26). . . . . . . . . . . . . . . . .3 - 8

     B.   Relevant Domestic Law and Practice

          (paras. 27-29). . . . . . . . . . . . . . . . 8 - 11

III. OPINION OF THE COMMISSION

     (paras. 30 - 51) . . . . . . . . . . . . . . . . .12 - 16

     A.   Complaints declared admissible

          (para. 30). . . . . . . . . . . . . . . . . . . . 12

     B.   Points at issue

          (para. 31). . . . . . . . . . . . . . . . . . . . 12

     C.   As regards Article 10 of the Convention

          (paras. 32 - 41). . . . . . . . . . . . . . .12 - 14

     D.   As regards Article 13 of the Convention

          (paras. 42 - 49). . . . . . . . . . . . . . .14 - 15

     E.   Recapitulation

          (para. 50 - 51) . . . . . . . . . . . . . . . . . 16

Opinion dissidente de M. F. MARTINEZ, rejoint par

MM. C.A. NØRGAARD, E. BUSUTTIL, A. WEITZEL, C.L. ROZAKIS

et L.L. LOUCAIDES pour sa deuxième partie . . . . . . .17 - 19

Dissenting opinion of Mr. F. ERMACORA . . . . . . . . . . . 20

Dissenting opinion of Mrs. G.H. THUNE . . . . . . . . . . . 21

APPENDIX I     : HISTORY OF PROCEEDINGS . . . . . . . . . . 22

APPENDIX II    : DECISION ON ADMISSIBILITY

                 OF THE APPLICATION . . . . . . . . . .23 - 30

I.   INTRODUCTION

1.   The following is an outline of the case, as submitted to the

European Commission of Human Rights, and of the procedure before the

Commission.

A.   The Application

2.   The applicant is a citizen of the United Kingdom born in 1949 and

resident in York.  He is a doctor in private general practice with a

particular interest in the holistic approach to health care.  He was

represented before the Commission by Messrs. Bindman and Partners,

Solicitors, London.

3.   The application is directed against the United Kingdom.  The

respondent Government were represented by their Agent, Mrs. A. Glover,

of the Foreign and Commonwealth Office.

4.   The case concerns restrictions placed on the applicant by his

professional body, the General Medical Council, relating to the

advertising of his medical practice.  It raises issues under

Articles 10 and 13 of the Convention.

B.   The Proceedings

5.   The application was introduced on 11 May 1990 and registered on

30 May 1990.  After a preliminary examination of the case by the

Rapporteur, the Commission considered the admissibility of the

application on 7 September 1990.  It decided to give notice of the

application to the respondent Government and to invite the parties to

submit written observations on its admissibility and merits.  The

Government's observations were submitted, after an extension of the

time-limit, on 21 December 1990, to which the applicant replied on

12 February 1991.

6.   On 5 September 1991 the Commission declared the application

admissible.  The text of the decision on admissibility was sent to the

parties on 30 September 1991 and they were invited to submit such

further evidence or additional observations as they wished.  No further

observations were submitted by the parties.

7.   After declaring the case admissible, the Commission, acting in

accordance with Article 28 para. 1 (b) of the Convention, also placed

itself at the disposal of the parties with a view to securing a

friendly settlement.  In the light of the parties' reaction, the

Commission now finds that there is no basis on which such a settlement

can be effected.

C.   The Present Report

8.   The present Report has been drawn up by the Commission in

pursuance of Article 31 para. 1 of the Convention and after

deliberations and votes in plenary session, the following members being

present:

          MM.  C. A. NØRGAARD, President

               S. TRECHSEL

               F. ERMACORA

               E. BUSUTTIL

               G. JÖRUNDSSON

               A. S. GÖZÜBÜYÜK

               A. WEITZEL

               J.-C. SOYER

               H. G. SCHERMERS

               H. DANELIUS

          Mrs. G. H. THUNE

          Sir  Basil HALL

          MM.  F. MARTINEZ

               C. L. ROZAKIS

          Mrs. J. LIDDY

          MM.  L. LOUCAIDES

               J.-C. GEUS

               M. P. PELLONPÄÄ

               B. MARXER

9.   The text of this Report was adopted on 19 October 1992 and is now

transmitted to the Committee of Ministers of the Council of Europe, in

accordance with Article 31 para. 2 of the Convention.

10.  The purpose of the Report, pursuant to Article 31 of the

Convention is:

     i)   to establish the facts, and

     ii)  to state an opinion as to whether the facts found disclose

          a breach by the State concerned of its obligations under

          the Convention.

11.  A schedule setting out the history of the proceedings before the

Commission is attached hereto as Appendix I and the Commission's

decision on the admissibility of the application as Appendix II.

12.  The full text of the parties' submissions, together with the

documents lodged as exhibits, are held in the archives of the

Commission.

II.  ESTABLISHMENT OF THE FACTS

     A.   The particular circumstances of the case

13.  The applicant has been a registered medical practitioner since

1975.  When working in the National Health Service (N.H.S.) his

experience led him to hold opinions which accord with the "holistic"

approach to health care.  This involves not just treating patients, but

trying to help them to explore the cause of their problems and to take

more responsibility for their remedy.

14.  In 1985 he established a practice in York named the "Holistic

Counselling and Education Centre".  He took various measures to make

available the information that this practice had been established, and

to attract patients, namely:

     (a)  In August 1985 writing to 140 general practitioners in and

     about York.

     (b)  In August 1985 leaving his business card and a letter of

     explanation with the Family Practitioners Committee, the

     Citizen's Advice Bureau, and the Central Library in York.

     (c)  In May 1986 supplementing the information in (b) above

     with a practice information sheet.

     (d)  Attempting to place an entry in the "Yellow Pages"

     telephone directory identifying himself as a private practitioner

     (British Telecom refused, their policy being not to make a

     distinction between private and N.H.S. practitioners).

     (e)  In September 1985 being interviewed by the press, which

     resulted in a rebuke from the chairman of the Local Medical

     Committee.

     (f)  In November 1985 requesting the chairman of the Local

     Medical Committee to circulate to local practitioners

     information about his practice, to which he received no reply.

     (g)  Thereafter making other fruitless efforts to publicise

     information, in particular by proposing, without success,

     to give talks.

15.  He then considered the insertion of advertisements in local

newspapers.  Recognising that this did not appear to accord with the

Guidance issued by the General Medical Council (G.M.C.), he wrote on

30 March 1987 seeking its advice on the question of practice

advertising and professional ethics.  He also requested it to review

the existing rules.  He stated that he would like to advertise in the

press, under the heading "General Medical Practice (Private)", his

name, professional qualifications, the name of his Centre, its address,

telephone number, the words "For information, Advice, Private Medical

Care" and directions to telephone for a practice information sheet.

The G.M.C. is the governing body of the medical profession.

16.  On 18 May 1987 the applicant was informed by the G.M.C. that it

declined to review its recently amended guidance and that to advertise

in the local press could lead to disciplinary action against him for

the improper promotion of his practice.  However he was also informed

that he could make available at public libraries and other information

centres details about his practice, alongside that given by other

doctors in the area.

17.  The press limitation on doctors' advertising did not extend, for

example, to private hospitals, over which the G.M.C. has no control.

Private clinics were thus entitled widely to publicise their services.

Virtually all other professions in the United Kingdom, including

dentists, had lifted such advertising restrictions on their members.

18.  On 10 August 1987 the applicant applied by way of judicial review

for a declaration that the G.M.C.'s decision and policy on the

dissemination of information by doctors was unlawful on the grounds,

inter alia, that it was disproportionate for the following reasons:

     a) it went much further than was required to secure the

        legitimate protection of medical practitioners and

        patients, and

     b) it was unlawful because, inter alia, it was a restraint

        on the applicant's freedom of expression contrary to

        Article 10 of the Convention.

19.  In November 1987 the Secretaries of State for Social Services,

Wales, Northern Ireland and Scotland presented to Parliament a White

Paper proposing a loosening of the remaining restraints on doctors'

rights to advertise their services.

20.  On 25 November 1988 the Divisional Court rejected the applicant's

application, awarding costs against him.  It held that the G.M.C. had

exercised its discretion reasonably.   It noted, inter alia, that the

extent to which doctors should be permitted to advertise their services

was a sensitive issue, about which there was professional and social

controversy, and on which the courts should not intervene so as to

substitute their view for that of the G.M.C., the professional body

concerned.  To allow advertising might be harmful to patients and their

families who may be vulnerable when they are ill.  Advertisements could

be misleading, the best and wealthiest advertisers not necessarily

being the best doctors.  The fact that the G.M.C. cannot control the

advertisements of private clinics and hospitals, as it has no

disciplinary jurisdiction over them, cannot of itself make the G.M.C.'s

conduct irrational.  Nor was it irrational if the G.M.C., adhering at

that stage to what it regarded as sound and well-tried values for the

medical profession, was somewhat out of step with most other

professions and several overseas medical professions, with the notable

exceptions of Canada, Belgium, France, Greece and the Netherlands at

the material time.  It did not consider that the press advertising

restriction was an undue restraint of trade, as such considerations (if

relevant at all) should not be applied with the same rigour to a

profession,  where its standards of professional conduct and ethics are

in question, as they would to the normal business world.

21.  On the question of the applicability of Article 10 of the

Convention the Divisional Court held as follows:

     "Assuming that Article 10 protects an individual's right to

     communicate professional and commercial information and that the

     G.M.C.'s guidance interferes with that right, the question arises

     whether, under the European Convention on Human Rights and

     English law, the G.M.C. has to show that that interference was

     necessary, that is whether there was a pressing social need for

     it.  See the majority judgment in the 'Sunday Times' case, ECHR

     judgment of October 27, 1978, series A, no. 30, (1979) EHRR 245;

     Lingens v. Austria, (1986) 8 EHRR 407, and the Barthold case,

     ECHR judgment of March 25, 1985, series A, no. 90.

     However, it is by no means clear that the ECHR jurisprudence

     would go so far as to require a professional body like the G.M.C.

     to demonstrate a pressing social need for its guidance against

     advertising in order to justify it as a protection of health or

     morals or for the protection of the rights of other doctors and

     patients under Article 10 (2).  The European Court of Human

     Rights said in paragraph 59 of its majority judgment in the

     Barthold case that the initial responsibility for securing

     compliance with the Convention lies with the individual

     Contracting States, and that Article 10 (2) leaves each of them

     with a margin of discretion, albeit not an unlimited margin.

     The extent to which that discretion is considered by the European

     Court of Human Rights to be limited is illustrated in its

     decision in that case.  It involved a challenge by a veterinary

     surgeon of a decision of a German court that he had broken a rule

     of professional conduct prohibiting advertising.  The nature of

     his infringement had not been direct commercial advertising, as

     proposed by Dr. Colman, but his involvement in the inclusion of

     his name and details of his practice in a press article written

     by a journalist.  In concluding that the rule infringed

     Article 10, the court, by a majority, clearly took the view that

     the advertising element in the article was secondary to the

     principal purpose of the article, which was to deal with a matter

     of public interest, the problem of a night veterinary service in

     Hamburg.  The court's prime concern was to prevent the

     application of a restriction which risked, in the words of the

     judgment:

     '...discouraging members of the liberal professions from

     contributing to public debate on topics affecting the life

     of the community if ever there is the slightest likelihood

     of their utterances being treated as entailing, to some

     degree, an advertising effect ...'

     and which would

     'hamper the press in the performance of its task of

     purveyor of information and public watchdog.'

     See paragraph 58 of the majority judgment.

     Thus, the court did not decide that commercial or professional

     advertising was protected by Article 10.  The concurring judgment

     of Judge Pettiti (at pages 31-32 of the report) lamenting that

     the court had not gone on to consider that issue merely

     underlines the difficulty for this court in looking to the

     Barthold case for guidance ...

     ...(The) proper approach here ... is for the applicant to

     establish that the G.M.C. has in its guidance to him unreasonably

     interfered with his freedom of speech so as to render that

     interference unlawful.  For the reasons (that have been) given,

     the applicant has not established that unlawfulness either in the

     form of Wednesbury unreasonableness or of unreasonableness in the

     ordinary and natural meaning of that term."

22.  In the meantime on 24 May 1987 the G.M.C.'s rules on doctors'

advertising were referred to the Monopolies and Mergers Commission (the

M.M.C.).  In March 1989 the M.M.C.'s report, which concluded that the

G.M.C.'s rules were not in the public interest, was presented to

Parliament.  The M.M.C. recommended that the G.M.C. revise its guidance

to permit advertising by general practitioners, subject to the two

broad principles that such advertising should not be likely to bring

the profession into disrepute or be such as to abuse the trust of

patients or exploit their lack of knowledge.  The contents of

advertisements should be limited to factual information and should not

be published so frequently as to cause a nuisance to potential patients

or put them under pressure.  The Secretary of State for Trade and

Industry accepted the M.M.C.'s report and asked the Director General

of Fair Trading to negotiate with the G.M.C. to implement the M.M.C.'s

recommendation further to relax the restrictions on the publication of

factual information about doctors.

23.  On 6 December 1989 the Court of Appeal dismissed the applicant's

appeal against the decision of the Divisional Court, again awarding

costs against the applicant.  The Court of Appeal held that the G.M.C.

had not been unreasonable or disproportionate in the exercise of its

discretion at the time.  It also rejected the applicant's arguments

under Article 10 of the Convention as follows, in the judgment of Lord

Justice Gibson:

     "... it is a principle of construction of United Kingdom

     statutes, now too well established to call for citation of

     authority, that the words of a statute passed after the

     treaty has been signed and dealing with the subject matter

     of the international obligation of the United Kingdom, are

     to be construed, if they are reasonably capable of bearing

     such a meaning, as intended to carry out the obligation,

     and not to be inconsistent with it ...

     It is not clear ... that, in this case, there is, in the

     same sense, any identifiable subject matter within section

     35 of the (Medical Act 1983) which can properly for this purpose

     be regarded as the subject matter of any international

     obligation of the United Kingdom under the Convention.  In any

     event, (to use that principle of construction) ... for the

     purpose of construing primary legislation, where there is

     ambiguity, is to do no more than to determine the meaning of the

     legislation passed by Parliament.  That has always been the

     proper task of the court.  To use that principle to justify the

     reviewing by the court of the substantial validity of the action

     or decision in question, which is otherwise lawful

     as within the powers given, and to carry out that review

     on the basis of the court's judgment as to what amounts

     to 'conditions, restrictions or penalties as ... are

     necessary in a democratic society ... for the protection

     of health or morals ...' within Article 10 para. 2 is to

     misapply it for a purpose for which it was ... plainly

     not intended."

24.  The Court of Appeal refused to accept the notion of

"proportionality" as a separate ground for seeking judicial review,

rather than a facet of "irrationality", which, if found, would vitiate

any administrative decision.  To accept it as a separate notion would

quickly lead to courts forgetting their supervisory role and

substituting their view of what was proportionate for that of the

administrative decision-making body.  It concluded as follows, in the

judgment of Lord Donaldson, MR:

     "We live in a period of very rapid change in attitudes and

     perception of where the balance of the public interest lies in

     the context of advertising by members of professions.  Only a few

     years ago any form of advertising, even if only informational in

     content, would have been unthinkable.  Today it is widely

     accepted, although still subject to some restrictions in addition

     to the standards set by the British Code of Advertising Practice,

     namely that advertising must be legal, decent, honest and

     truthful.  It is certainly a tenable view that the medical

     profession has more reason than most other professions to

     restrict advertising because of the special relationship of trust

     between doctor and patient which lies at the heart of any

     effective system of health care and because of the vulnerability

     of patients suffering ill health.  The problem is where the line

     is to be drawn.

     The General Medical Council (the G.M.C.) re-examined this

     question in November 1986, only a few months before Dr Colman

     sought the president's advice, and concluded that advertising by

     doctors should be confined to factual information of a non-

     promotional character and that it should be disseminated in ways

     which would ensure that no one doctor obtained any promotional

     advantage over other doctors practising in the same field of

     medicine or geographical area.  The expectation was that this

     would be achieved by all doctors making informational material

     available at their surgeries and at local libraries and other

     information centres.  Dr Colman is in the same position as other

     doctors in relation to his surgery, but he has come up against

     an obstacle in that local libraries and information centres will

     not give out information about his practice unless all other

     doctors in private, as contrasted with national health service,

     practice are willing for similar information to be provided about

     their practices.  This is a condition which cannot be met.  Hence

     his application for special dispensation to allow him to place

     a very modest advertisement in the local press, which was refused

     in May 1987.

     I make no secret of the fact that I have some sympathy for

     Dr Colman.  There is no suggestion that he is a "quack" and,

     whether rightly or wrongly, he genuinely believes that holist

     medicine as practised by him provides a service to patients which

     is different from and often better than, that provided by the

     generality of medical practitioners.  In these circumstances it

     is understandable that he should feel that the public interest

     requires that, the normal channels for dissemination of factual

     information about his services having broken down, he should be

     allowed to use some other channel.  Against this has to be set

     the old, but true, adage that hard cases make bad law.  If the

     G.M.C. authorised departure from the normal rule in Dr Colman's

     case, how many other cases would also have to be treated

     exceptionally, where would the line be redrawn and, indeed, could

     the line be held at all?

     Parliament has entrusted the resolution of these competing

     considerations to the G.M.C. and not to the courts.  Accordingly,

     it is quite beside the point to consider whether I would have

     reached the same conclusion.  It is even possible that the

     president of the G.M.C. might not do so today, when he has the

     benefit of the recommendations of the Monopolies and Mergers

     Commission report 'Services of Medical Practitioners' (Cm 582

     (1989)), which must cause the G.M.C. to re-examine the guidance

     contained in the Blue Book, although it need not necessarily

     cause it to change its mind.  However, that is beside the point

     for present purposes.  What matters is whether the advice given

     in May 1987 was irrational.  Despite the fact that the guidance

     given in the Blue Book failed to prevent some of the anomalies

     to which counsel for Dr Colman drew attention, for example the

     'glossy' promotional advertising by private hospitals and clinics

     over which the G.M.C. has little or no control, I cannot regard

     the guidance contained in the Blue Book as irrational.  Nor can

     I so regard the decision of the president to refuse to make an

     exception in the case of Dr Colman."

25.  On 4 January 1990 the applicant lodged a petition with the House

of Lords for leave to appeal.  It was rejected on 26 February 1990.

26.  In the same month as the introduction of the application to the

Commission, in May 1990, the G.M.C. revised its advertising rules to

allow, inter alia, the publication in the press of factual information

about doctors' services.

     B.  Relevant domestic law and practice

27.  The G.M.C. is a statutory body, presently governed by the Medical

Act 1983, with powers under section 35 of that Act to assist doctors

in matters of professional conduct and discipline.  It maintains a

register of medical practitioners who are entitled to practise in the

United Kingdom.  It exercises disciplinary functions over registered

practitioners and may ultimately remove a practitioner from the

register for serious professional misconduct. It is thus responsible

for ensuring that standards of professional conduct are maintained.

28.  In November 1986, after 15 months of consultations with many

interested and influential bodies in the medical profession and

outside, the G.M.C. had proposed new guidance, in a document called the

Blue Book, partially relaxing previous rules on advertising.  While

accepting that the public should have access to information about

doctors and their services, the guidance indicated that self-promotion

or canvassing by doctors by advertising in the press or otherwise could

amount to serious professional misconduct attracting disciplinary

proceedings.  The material passages in Part II of the Blue Book were

as follows:

     "58.  Patients are entitled to protection from misleading

     promotional advertising or similarly improper competitive

     activities among doctors ...

     "59.  Good communication between doctor and patients ... is

     fundamental to the provision of good patient care, and the

     ethical dissemination of relevant factual information about

     doctors and their services is strongly to be encouraged.

     This facilitates an informed choice by patients seeking

     medical care ...

     "60.  The provision of information about medical services

     provided by a doctor is nevertheless a sensitive matter, in

     relation to which the conduct of the doctor may be

     questioned either on ethical grounds or on the grounds that

     it is incompatible with the principles which govern

     relationships between members of a profession.  The

     paragraphs below outline three particular areas where such

     problems may arise.

     'The use of promotional material

     61.  The medical profession in this country has long

     accepted the convention that doctors should refrain from

     self-promotion, not least because the doctor who is most

     successful at achieving publicity may not be the most

     appropriate for a patient to consult.  Furthermore, people

     seeking medical attention, and their families, are often

     particularly vulnerable to persuasive influence.  In such

     circumstances, the use of promotional advertising is not

     only a breach of professional etiquette but could be a

     source of danger to the public, in extreme cases raising

     illusory hopes of a cure.

     62.  Doctors have a duty to be satisfied, if they are aware

     that material about them is to be published, that it will

     conform, both in its content and in the manner of its

     presentation, with the standards set out in this pamphlet.

     A professional offence may arise from the publication in

     any form of material commending the professional

     attainments or personal qualities of a particular doctor,

     or improperly drawing attention to his practice, if that

     doctor has either personally arranged for such publication

     or has instigated, sanctioned or acquiesced in its

     publication by others.  The decision whether publication of

     this kind of material amounts to serious professional

     misconduct will take account of the motive of the doctor

     concerned in arranging for or agreeing to publication, and

     also of the other circumstances of each case such as:

     (a) the nature, content and presentation of the material;

     (b) whether the material seeks to suggest that the doctor

     has particular abilities as compared with other doctors;

     (c) whether the material is published in a manner likely to

     attract patients to, or to promote professional advantage

     or financial benefit of the doctor ...

     Canvassing and other improper arrangements to extend a

     doctor's practice

     63 ... The distribution of advertising material to members

     of the public, or advertising in the press or other media,

     with the intention of attracting prospective patients to a

     particular doctor or service, may be construed as

     canvassing on the part of the doctor ...'"

29.  Some of the same ground was covered in Part III of the Blue Book

which gave guidance on standards of professional conduct and on medical

ethics.  The following guidance was given under the heading

"Self-promotion: circumstances in which difficulties most commonly

arise":

     "92.  Paragraphs 58-62 ... draw a distinction between the

     proper provision of factual information about doctor's services,

     to which no exception can be taken, and activities amounting

     to self-promotion, which may raise a question of serious

professional misconduct.  The following paragraphs discuss

various circumstances in which difficulties may arise if a

distinction is not carefully observed.

          Notices or announcements by or about doctors

     93.  In order to make an informed choice of general

     practitioner, prospective patients need to have ready

     access to accurate, comprehensive and well-presented

     information about the doctors practising in their area.

     Lists of such practitioners including factual information

     about the practitioners and their qualifications, the

     facilities available and practice arrangements in each

     case, should be distributed widely for the benefit of

     members of the public, making full use of public libraries,

     community health councils and other centres of local

     information.  Any such material should however be published

     by an impartial body which stands to gain no financial

     advantage.  As far as is practicable, material published in

     this way should provide the same items of information about

     each doctor and practice and, where the material is

     published by a body other than a Family Practitioner

     Committee or Primary Care Division or a Health Board, every

     general practitioner in the relevant area, whether

     practising in the National Health Service or independently,

     should be eligible for inclusion in such a list.

     Notices or announcements displayed, circulated or otherwise

     made public by or on behalf of a doctor in connection with

     his professional practice must be confined to factual

     information of a non-promotional nature... It is acceptable

     for general practitioners to inform patients of their

     services and practice arrangements, provided that the

     material circulated makes no claim as to the quality of the

     service or the doctor's personal qualities or level of

     performance.  Such material may be available at doctor's

     surgeries, local libraries and to the information centres,

     for issue individually to a doctor's existing patients or

     to persons inquiring about the doctor's practice or the

     services available, but should not be distributed to other

     persons or be released in bulk to inquirers.  Any attempt

     by a doctor or his agent to use the circulation of such

     material to gain an advantage over local colleagues, or to

     canvass their patients may well raise a question of serious

     professional misconduct ..."

III. OPINION OF THE COMMISSION

A.   Complaints declared admissible

30.  The Commission has declared admissible the applicant's complaints

that the G.M.C.'s policy, before May 1990, about advertising in the

medical profession, as it affected him, was in breach of Articles 10

and 13 (Art. 10, 13) of the Convention.

B.   Points at issue

31.  The following are the points at issue in the present

application:

-    whether the advertising restrictions to which the applicant was

     subject by the G.M.C. were in violation of his freedom of

     expression ensured by Article 10 (Art. 10) of the Convention;

-    whether the applicant had effective remedies, pursuant to

     Article 13 (Art. 13) of the Convention, under English law for his

     Article 10 (Art. 10) claim.

C.   As regards Article 10 (Art. 10) of the Convention

32.  The relevant part of Article 10 (Art. 10) of the Convention reads

as follows:

     "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 ..."

     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, ...  for the protection of health or morals, (or)

     for the protection of the reputation or rights of others

     ..."

33.  The Commission found in its decision on admissibility of

5 September 1991 that the advertising restrictions placed by the G.M.C.

upon the applicant constituted an interference with his freedom of

expression by a public authority (Appendix II p. 23 below).  The

parties do not dispute that the interference was lawful and that, in

principle, it pursued legitimate aims, namely the protection of the

health of patients and the rights of others, namely other doctors.  The

key question in the case is whether the interference was necessary in

a democratic society within the meaning of Article 10 para. 2

(Art. 10-2) of the Convention.

     Necessary in a democratic society

34.  The applicant accepts that the protection of patients from

misleading or manipulative advertising is a pressing social need which

comes within the protection of health referred to in Article 10 para. 2

(Art. 10-2).  He also accepts that a certain measure of protection

should be afforded to doctors from unfair competition from their

professional colleagues, such safeguards being necessary for the

protection of the rights of others, also envisaged by Article 10

para. 2 (Art. 10-2).  However, in his view, the protection afforded by

the G.M.C.'s advertising rules before May 1990 was wholly

disproportionate, imposing a blanket and indiscriminate ban on all

announcements of the kind sought by the applicant.  He contends,

therefore, that the interference with his freedom of expression by the

G.M.C.'s guidance on advertising was not necessary and was in breach

of Article 10

(Art. 10) of the Convention.

35.  The Government deny that the case discloses any violation of

Article 10 (Art. 10) of the Convention and, in any event, they point

out that between November 1987 and May 1990 they consistently moved

towards, and succeeded in securing, a relaxation of the G.M.C.'s

advertising restrictions.

36.  The Commission refers to the constant case-law of the European

Court of Human Rights "that the Contracting States have a certain

margin of appreciation in assessing the existence and extent of the

necessity of an interference, but this margin is subject to a European

supervision" (Eur. Court H.R., Markt Intern Verlag GmbH and Klaus

Beermann judgment of 20 November 1989, Series A no. 165, pp. 19-20,

para. 33).  The Markt Intern case concerned unfair competition in trade

matters and the Court commented that such a margin of appreciation is

all the more important in commercial matters and that the Convention

organs must confine their review "to the question whether the measures

taken on a national level are justifiable in principle and

proportionate" (ibid. p. 20, para. 33).

37.  The Commission notes that in the Barthold case the Court also

implicitly recognised that some limitations on advertising for the

liberal professions, such as veterinary surgeons, may be justified to

protect the rights of other practitioners, although that was not the

real issue in the case, which concerned Mr. Barthold's professional

contribution in a newspaper interview to a matter of public interest

and which only had the secondary effect of giving publicity to his own

practice (Eur. Court H.R. , Barthold judgment of 25 March 1985,

Series A no. 90, p. 26, para. 58).

38.  The Commission has regard to the particular facts of the present

case:   the applicant was seeking to attract patients.  His concern was

therefore one of advertisement of his professional activity, a clearly

commercial matter.  There was not a blanket restriction on doctors'

advertising at the material time.  He was affected only by the

prohibition on advertising in newspapers. From 1987 the matter was

under active review by the Government,  the M.M.C. and subsequently the

G.M.C..   As the Court of Appeal observed in this case, the question

of advertising in the liberal professions has undergone significant

developments recently:  "Only a few years ago any form of advertising,

even if only informative in content, would have been unthinkable.

Today it is widely accepted, although still subject to some

restrictions ...".   Moreover, at the material time, other High

Contracting Parties to the Convention maintained similar restrictions

over such advertising (p. 4, para. 20 above.  Cf. also No. 14622/89,

Hempfing v. Germany, Dec. 7.3.91, to be published in D.R. 69).

39.  In the light of these considerations, and having regard to the

duties and responsibilities attaching to the freedoms guaranteed by

Article 10 (Art. 10) of the Convention, the Commission finds that it

cannot be said that the advertising policy of the G.M.C. went beyond

the margin of appreciation left to national authorities.  It is obvious

that views may differ as to whether an earlier relaxation on press

advertising for the medical profession would have been appropriate.

However, the Convention organs should not substitute their own

evaluation for that of the competent medical authorities in the present

case where those authorities, on reasonable grounds, had considered the

restriction to be necessary at the material time (mutatis mutandis Eur.

Court. H.R., Markt Intern Verlag GmbH and Klaus Beermann judgment of

29 November 1989, Series A no. 165, p. 21, para. 37).

40.  The Commission is therefore satisfied that the G.M.C.'s

professional guidance preventing the applicant from advertising his

private medical practice in the press was not disproportionate to the

legitimate aims of protecting patients' health, as well as the rights

of others, namely other doctors.  In the Commission's opinion, this

advertising restriction upon the applicant may then be considered as

necessary under Article 10 para. 2 (Art. 10-2) of the Convention.

Conclusion

41.  The Commission concludes, by 11 votes to 8, that there has been

no violation of Article 10 (Art. 10) of the Convention.

D.   As regards Article 13 (Art. 13) of the Convention

42.  Article 13 (Art. 13) of the Convention provides as follows:

     "Everyone whose rights and freedoms as set forth in this

     Convention are violated shall have an effective remedy

     before a national authority notwithstanding that the

     violation has been committed by persons acting in an

     official capacity."

43.  The applicant complains that he had no effective domestic remedy,

contrary to Article 13 (Art. 13) of the Convention, to test his

substantive Article 10 (Art. 10) claim.  He contends that, as the

domestic courts would not have regard to the principles of Article 10

(Art. 10) of the Convention, including the jurisprudential criteria of

a pressing social need and proportionality, they had no jurisdiction

to award him compensation for the allegedly wrongful interference with

his freedom of expression.  The Government refute the applicant's

submissions and contend that he has no arguable claim of a breach of

Article 10 (Art. 10) of the Convention which would warrant a remedy

under Article 13 (Art. 13).

44.  In view of the Commission's above considerations relating to

Article 10 (Art. 10) of the Convention, the Commission finds that the

applicant's claim under that Article cannot be regarded as not arguable

on its merits(cf. Eur. Court H.R., Boyle and Rice judgment of

27 April 1988, Series A no. 131, p. 23, para. 52 and Soering judgment

of 7 July 1989, Series A no. 161, pp. 46-47, para. 117).

45.  The question, therefore, remains whether English law provided the

applicant with a remedy satisfying Article 13 (Art. 13) of the

Convention, in particular whether the application for judicial review

in the present case satisfied Article 13 (Art. 13).

46.  The Commission notes that in judicial review proceedings the

domestic courts may rule the exercise of executive discretion unlawful

on the ground that it is tainted with illegality, irrationality or

procedural impropriety.  The Commission has examined the analysis made

by the domestic courts of the irrationality principle in English law

during the judicial review proceedings in the applicant's case.  Whilst

not accepting "proportionality" as a separate ground for judicial

review, it was considered by the Court of Appeal to be a facet of the

irrationality principle (para. 24 above).

47.  The domestic courts' approach in the present case, balancing the

conflicting interests of free competition and individual freedom of

expression with that of the protection of the health of patients and

the rights and freedoms of other members of the medical profession, was

similar to that of the Convention organs in balancing the individual's

freedom of expression with the exigencies of the second paragraph of

Article 10 (Art. 10) of the Convention.  In scrutinising the

reasonableness of the G.M.C.'s advertising restrictions, the English

courts in the present case effectively considered whether these

restrictions were proportionate to the pressing social needs and the

legitimate aims of protecting patients' health and other doctors'

rights and freedoms.  Like the Convention organs it was not for the

English courts to substitute their appreciation of appropriate

advertising norms for that of the medical profession's governing body.

Their task, like the task envisaged by Article 10 (Art. 10) of the

Convention, was to detect and denounce any unreasonable or arbitrary

interference with the applicant's freedom of expression.  No such

unreasonableness was found.  However, the unfavourable outcome for the

applicant does not detract from the effectiveness of the remedy of

judicial review in such cases.

48.  The Commission is therefore of the opinion that there was

available to the applicant an effective remedy under English law

satisfying Article 13 (Art. 13) of the Convention in relation to his

complaint under Article 10 (Art. 10).

     Conclusion

49.  The Commission concludes, by 18 votes to 1, that there has been

no violation of Article 13 (Art. 13) of the Convention.

E.   Recapitulation

50.  The Commission concludes, by 11 votes to 8, that there has been

no violation of Article 10 (Art. 10) of the Convention (para. 41

above).

51.  The Commission concludes, by 18 votes to 1, that there has been

no violation of Article 13 (Art. 13) of the Convention (para. 49

above).

Secretary to the Commission            President of the Commission

     (H.C. KRÜGER)                           (C.A. NØRGAARD)

             Opinion dissidente de M. F. MARTINEZ,

    rejoint par MM. C.A. NØRGAARD, E. BUSUTTIL, A. WEITZEL,

    C.L. ROZAKIS et L.L. LOUCAIDES pour sa deuxième partie

     A mon grand regret, je ne partage pas l'avis de la majorité de

mes éminents collègues.  En effet, je ne considère pas le requérant

comme victime au sens de l'article 25 de la Convention.  Et s'il était

tenu pour victime, je constaterai une violation de l'article 10.

1.   Le requérant n'a plus la qualité de victime

     La Convention veut que les Etats portent remède à toute possible

violation.  Tel est le sens de l'article 13 qui exige des Etats une

voie de recours effectif et interne.  Tel est le sens de l'article 25

qui ne permet pas aux victimes de saisir la Commission sans chercher

au préalable toute possibilité d'avoir un recours interne.  Par

conséquent, lorsque l'Etat remédie au problème, il est en conformité

avec la Convention, il ne la viole pas.

     Il n'est pas nécessaire que le recours interne soit l'oeuvre des

tribunaux et des cours.  N'importe quel organe du pouvoir de l'Etat

peut agir s'il apporte une bonne solution.  Dans le cas d'espèce, le

Royaume-Uni a donné la meilleure solution et sans trop se faire

attendre.

     L'acte rendu en défaveur du requérant s'est produit le

18 mai 1987.  C'était l'information fournie par le G.M.C. dont le

rapport de la Commission fait état au paragraphe 16.  Mais les

autorités britanniques ont modifié les règles du G.M.C.

     En effet, le 24 mai 1987, les règles du G.M.C. ont été soumises

à la Commission des Monopoles (M.M.C.) qui, en mars 1989, a fait un

rapport au Parlement en critiquant les règles du G.M.C. et en

recommandant de les changer.  Le secrétaire d'Etat pour le Commerce et

l'Industrie a accepté le rapport du M.M.C. et a demandé au directeur

général de la libre concurrence de négocier avec le G.M.C. (vid.

rapport Comm. par. 22).  Tout ceci a abouti, en mai 1990, à ce que le

G.M.C. révise ses règles et de ce fait, les annonces dans la presse ont

été permises (vid. rapport Comm. par. 26).

     Le requérant a alors pu faire ses annonces à partir de mai 1990.

Très peu de jours après avoir saisi la Commission européenne des Droits

de l'Homme, il a obtenu satisfaction au Royaume-Uni.  Sa requête a donc

été enregistrée le 30 mai 1990 alors qu'elle était sans objet.

     Peu importe que le requérant ait entamé une voie judiciaire

parallèle pour attaquer la décision du G.M.C. et qu'il ait échoué.  Les

décisions de justice montrent que les juges sont tenus de respecter les

règles du G.M.C. mais une fois que ces règles sont changées après

intervention de l'Etat, il n'y a plus d'ingérence dans la liberté

d'information garantie par l'article 10 de la Convention.

     Je voudrais encore faire une remarque.  La dernière décision de

justice interne est le refus d'appel du 26 février 1990 (rapport Comm.

par. 25).  Si le requérant avait saisi la Commission en août 1990 -

encore dans le délai de six mois permis par l'article 26 de la

Convention - devrait-il être considéré comme victime alors que les

règles du G.M.C. avaient été changées trois mois auparavant ?

     Pour en finir sur ce point, je n'accepte pas les arguments de la

Commission (dans la décision de recevabilité) considérant le requérant

comme victime.  Les trois ans au cours desquels ont eu lieu les

démarches administratives pour changer les règles du G.M.C., doivent

être supportés par le requérant.  Toute voie de recours interne prend

du temps ; et lorsque cette voie abouti, la responsabilité

internationale de l'Etat n'est pas en cause.

     Je trouve exagéré de dire que parce que pendant trois ans le

requérant a été privé de la possibilité de faire paraître des annonces

dans la presse, il a perdu les moyens de vivre.  Je ne vois pas

pourquoi le désir du requérant de suivre une voie judiciaire parallèle

aux démarches administratives qui ont abouti, devrait déclencher la

responsabilité internationale du Royaume-Uni pour les frais de justice

qu'il a bien voulu engagés.

2.   La violation de l'article 10 de la Convention

     Tout en reconnaissant le fait que l'interdiction de faire

paraître des annonces dans la presse était prévue par la loi, au sens

de l'article 10 par. 2 de la Convention, je me montre assez nuancé en

ce qui concerne son but.

     J'admets que les malades doivent être protégés contre une

publicité mensongère, trompeuse ou manipulée, mais leur donner un

renseignement objectif, sobre et mesuré ne peut leur faire aucun mal.

Ceci, par contre, est conforme à leur liberté de recevoir des

informations, comprise dans l'article 10 de la Convention.

     De même, les autres médecins doivent être préservés d'une

publicité déloyale ou qui comporte une concurrence illicite.  Mais

l'intérêt d'un médecin pour que le public ne connaisse pas l'existence

d'un autre praticien, n'est pas légitime et, surtout, ce n'est pas un

droit.  N'oublions pas que la Convention exige la protection des droits

et non des simples intérêts d'autrui.

     Cela dit, l'interdiction de publicité dont le G.M.C. avait frappé

le requérant, n'avait pas de but légitime à l'égard du deuxième alinéa

de l'article 10 de la Convention.

     La majorité de la Commission trouve que le G.M.C., en interdisant

la publicité que le requérant envisageait, a agi dans la marge

d'appréciation octroyée par la jurisprudence de la Cour européenne des

Droits de l'Homme.  Je suis encore ici très réservé.

     D'abord, il n'appartient pas à la Commission de porter un

jugement sur la politique globale du G.M.C. en matière de publicité.

Le point qui nous intéresse est celui de savoir si le type d'annonce

que le requérant voulait, mettait vraiment en danger les droits

légitimes des malades et des autres médecins.

     L'annonce voulue, telle que décrite au paragraphe 15 du rapport

de la Commission, était limitée à la publication du nom, qualifications

professionnelles, adresse et téléphone du requérant.  Y a-t-il quelque

chose de plus banal ?  Je n'arrive pas à imaginer comment une telle

annonce aurait pu mettre en péril la santé des malades ou les droits

des autres médecins.

     En conclusion, l'interdiction de l'annonce envisagée par le

requérant constitue une ingérence dans la liberté de communiquer des

informations garantie par l'article 10 de la Convention.  Et cette

ingérence, bien que prévue par la loi, n'était pas nécessaire pour la

protection de la santé, ni pour la protection des droit des autres

médecins.  Par conséquent, il s'agit d'une ingérence non autorisée par

le deuxième alinéa de cet article.

             Dissenting opinion of Mr. F. ERMACORA

     I agree with the second part of Mr. Martinez' dissenting opinion,

but would add that the criteria he refers to become particularly

important in the case of a doctor, like the applicant, whose methods

and philosophy differ from those of the traditional general

practitioner.

             Dissenting opinion of Mrs. G.H. THUNE

     I regret that I am not able to share the opinion of the majority

of the Commission in this case.

     As regards Article 10 I consider that the interference was not

sufficiently justified to fall under the second part of this provision.

I refer to the arguments given by Mr. Martinez in the last part of his

dissenting opinion.  For me it is also of importance that the applicant

represented a somewhat different, namely, holistic approach to health

care than most general practitioners.  It would, in my view, be of

particular interest to patients to be made aware of this.  For this

reason I do not consider it necessary in a democratic society to

deprive them of such knowledge.  The particular advertising conditions

for which the applicant sought permission were indeed modest and

informative.

     I also consider that there has been a violation of Article 13.

     As underlined by the majority of the Commission, the applicant

had, in principle, a remedy under English law.  It is true that the

domestic courts examined the irrationality principle in a careful

manner during the judicial review proceedings.  I also recall that the

European Court of Human Rights in previous cases, eg the Soering

judgment, found judicial review sufficient to comply with the

requirements of Article 13 of the Convention.  In my submission there

are reasons to reach another conclusion in the present case.  As stated

by Lord Donaldson in his appeal court judgment, the applicant applied

for a special dispensation from the generally upheld principle that

doctors were not permitted to place even a very modest advertisement

in the local press.  The judge went on to express his sympathy for the

applicant's approach to holistic medicine and his need to find a way

to communicate with the public.  Inspite of this the applicant's appeal

was rejected.  In my understanding the main reason for this was that

the court found it unwise to make exemptions, even in such a case, from

the general rules laid down by the G.M.C..  I quote from his judgment

(para. 24 above):

     "If the G.M.C. authorised departure from the normal rule in

     Dr Colman's case, how many other cases would also have to be

     treated exceptionally, where would the line be redrawn and,

     indeed, could the line be held at all?

     Parliament has entrusted the resolution of these competing

     considerations to the G.M.C. and not to the courts.  Accordingly,

     it is quite beside the point to consider whether I would have

     reached the same conclusion."

     From this I draw the conclusion that there were no prospects of

success for the applicant as the decision by the English courts in his

case was the result of the application of a general norm by which the

courts felt bound.  As I consider the application of this norm in the

applicant's case contrary to the Convention, I have reached the

conclusion that there has also been a violation of Article 13, having

regard to the Court's case-law in Silver and Others, Campbell and Fell

and Abdulaziz, Cabales and Balkandali.

                          APPENDIX I

                    HISTORY OF PROCEEDINGS

Date                          Item

_________________________________________________________________

11.05.90                      Introduction of application

30.05.90                      Registration of application

Examination of Admissibility

07.09.90                      Commission's decision to give

                              notice of application to the

                              respondent Government and to

                              invite parties to submit

                              written observations on

                              admissibility and merits

21.12.90                      Government's observations

12.02.91                      Applicant's observations

05.09.91                      Commission's decision to declare

                              application admissible

Examination of the Merits

30.09.91                      Parties invited to submit whatever

                              further information or observations

                              they wished

10.01.92                      Consideration of state of proceedings

16.05.92                      Consideration of state of proceedings

19.10.92                      Commission's deliberations on merits,

                              and on text of its Article 31 Report.

                              Final votes taken.  Adoption of Report