SECOND SECTION

Application no. 19657/12 Mette FRISK and Steen JENSEN against Denmark lodged on 27 March 2012

STATEMENT OF FACTS

The applicants, Ms Mette Frisk and Mr Steen Jensen, are Danish nationals, who were born in 1977 and 1961. They live respectively in Copenhagen and Åbyhøj, and are represented before the Court by Mr Tyge Trier, a lawyer practising in Copenhagen.

A. The circumstances of the case

1 . The facts of the case, as submitted by the applicants, may be summarised as follows.

2 . The applicants are journalists. At the relevant time they were employed by one of the two national television stations in Denmark, Danmarks Radio, henceforth DR . The first applicant produced a television programme, described as a documentary, called “When the doctor knows best”, which was broadcast at 8 p.m. on 24 September 2008, and seen by 534,000 viewers. The second applicant was the first applicant ’ s superior and responsible for the content of the programme.

3 . The television programme concerned the treatment of pleural mesothelioma cancer, notably at the National Hospital ( Rigshospitalet ), where Medical Director S was in charge of treatment. It focused on two types of chemotherapy medication, Alimta, produced by L, and Vinorelbine, produced by F. The National Hospital and S used Vinorelbine as first-line treatment in combination with Cisplatin or Carboplatin, depending on whether the treatment was related to an operation (operable patients) or to prolonging life and relieving pain and symptoms (inoperable patients). Three experts participated in the programme, a medical doctor from Karolinska Hospital in Sweden, a professor from Switzerland and a medical doctor from Grosshandorf Hospital in Germany. They all used Alimta as first-line treatment, most often in combination with Cisplatin or Carboplatin. The programme followed four patients and their relatives, who told their stories, and a narrator spoke throughout the programme.

4 . In preparation for the programme, the first applicant had carried out research on the subject which included, inter alia, the following.

5 . On 20 September 2004 the European Union had approved the marketing of Alimta in combination with Cisplatin for treatment of patients with inoperable pleural mesothelioma cancer. The background for the approval was research which had been carried out examining the effect of treatment with Alimta in combination with Cisplatin as compared to treatment with Cisplatin alone. Vinorelbine did not have marketing approval specifically aimed at the treatment of pleural mesothelioma cancer, but it was approved for treatment of lung cancer.

6 . In July 2007 the Minister for Internal Affairs and Health replied to various questions posed by Members of Parliament as to the treatment of pleural mesothelioma cancer in Denmark. The Minister replied, inter alia, that there was no proof that an Alimta-based treatment was more efficient than other chemotherapy-based treatments, including that offered in Denmark; that the combination of Vinorelbine and Cisplatin, which was used at the National Hospital, resulted in a one-year survival rate of 50% and a median lifetime of 12 months, which was exactly the survival rate from using the combination of Alimta and Cisplatin, but that there had been no direct comparison of the two treatments; and that there was no internationally accepted standard chemotherapy for the treatment of pleural mesothelioma cancer, but that several single and combined treatments were used.

7 . On 11 June 2008 the National Hospital produced a note about pleural mesothelioma cancer and its treatment, which was sent to DR. It stressed that international studies, including of Vinorelbine and Alimta, had not shown that any two-combination regime was superior to other two ‑ combination regimes. That information was confirmed by the professor from Switzerland in an e-mail of 25 June 2008 and by the medical doctor from Grosshandorf Hospital in Germany in an e-mail of 27 June 2008. The note also referred to a fund aimed at developing research on pleural mesothelioma cancer, in the amount of 90,000 Danish kroner (DKK), equal to approximately 12,000 Euros (EUR), received by S from company F, which produces Vinorelbine. The money had been used to pay nurses and students and for data collection. It emerged that there had been no financial profit for the doctors involved.

8 . Having received the above-mentioned note, the first applicant again contacted the professor from Switzerland and the medical doctor at Grosshandorf Hospital in Germany. In essence, they confirmed in subsequent e-mails of 2 and 21 July 2008 that since there had been no direct comparative clinical studies, there was no scientific evidence that one two ‑ combination regime was superior to another two-combination regime.

9 . Subsequent to the broadcast on 24 September 2008 of the television programme, on 27 October 2008 the National Hospital and S instituted defamation proceedings before the Copenhagen City Court ( Københavns Byret ) against the Director of DR and the two applicants, maintaining that the latter, in the programme in question, had made direct and indirect accusations, covered by Article 267 of the Penal Code ( Straffeloven ), against the National Hospital and S, of malpractice regarding certain patients suffering from pleural mesothelioma cancer, allegedly resulting in the patients ’ unnecessary death and shortening of life, in the interest of S ’ s professional prestige and private finances.

10 . By judgment of 9 April 2010, the Copenhagen City Court found against the applicants (and the Director of DR) and sentenced them each to 10 day-fines of 1,000 Danish Kroner (DKK). The allegations were declared null and void.

11 . On appeal, on 10 June 2011 the judgment was upheld by the High Court of Eastern Denmark ( Østre Landsret ) with the following reasoning:

“In the introduction to the programme ‘ When the doctor knows best ’ a narrator states, among other things: ‘ A Danish doctor is entering a medical congress to show his research results. For years he has gone his own way, he has treated dying patients with chemotherapy that is not approved. ’

Later during the programme, it is stated at which hospitals one can receive treatment for pleural mesothelioma cancer, that these hospitals co-operate with the National Hospital, and a reference is made to a named Medical Director and consultant, S, leader of the Scandinavian Centre for treatment of pleural mesothelioma cancer.

During the various interviews, a narrator states , inter alia :

- ‘ The doctor does not give his patients the only approved medication. Instead he uses a test medication. In the worst scenario, that may result in the patients dying earlier than if they had been given the approved substance. ’

- ‘ There is only one approved chemotherapy against pleural mesothelioma cancer, but that is not offered to SP [one of the patients followed in the programme]. The doctors chose to treat her with a substance that is not approved for the diagnosis, and whose effect on pleural mesothelioma cancer is not substantiated. ’

- ‘ However, that chemotherapy turned out to have huge consequences for her [SP]. ’

- ‘ S can freely choose the medication that he thinks is best. There is only one treatment which in comparative studies has proved to have an effect on pleural mesothelioma cancer. Accordingly, that is the only medication which is approved as treatment. That medication is called Alimta. However, S chose not to use that medication on his patients. ’

- ‘ Thus, it has not been proved whether Vinorelbine works. According to the calculations made by DR, close to 300 patients in Denmark have been given test medication. In the worst scenario, that may result in patients dying earlier than if they had been given the approved medication. ’

- ’ For her [SP] the lack of effect of treatment by Vinorelbine turns out to have had fatal consequences. ’

- ‘ The family K ask themselves why S goes his own way. They suspect that he has other interests than those of the patients. That suspicion grows, when they talk to SK ’ s personal doctor. ’

- It turns out, however, that S may also have had other reasons for choosing Vinorelbine. Because he has used this medication in medical tests on the patients. In a phase when they are fighting for their lives. ’

- ’ The question remains: why does S carry out tests with Vinorelbine? Could it have something to do with the prestige which is implied in having research articles published? ’

- ‘ We do not know whether it is prestige that impels S. ’

- ‘ Thus, S will not acknowledge what leading experts agree on; [namely] that Alimta is the only medication whose effect is substantiated. ’

- Here it turns out that S has received more than DKK 800,000 over the last five and a half years from the company F. That is the company behind the test medication Vinorelbine. The money has been paid into S ’ s personal research account. DKK 90,000 is earmarked for the tests. S withheld that information. ’

The programme ends by informing us, among other things, that two of the patients who were interviewed have passed away. The narrator says, inter alia :

‘ TJ, who was part of S ’ s tests with Vinorelbine, died on 4 January 2008. ’

With these statements, [the applicants] not only passed on assertions by patients, relatives and experts, but also took a stand, so that the programme undisputedly gave the viewers the impression, that malpractice has occurred at the National Hospital, in that S has deliberately used medication (Vinorelbine), which is not approved for treatment of pleural mesothelioma cancer, and whose effect has not been substantiated, that the medication in question was part of a test, and that the test medication has resulted in patients dying or having their lives shortened. The way that the programme is built up with its beginning and ending, the viewers get the clear impression that the reasons behind this choice of medication [Vinorelbine] were S ’ s professional prestige and personal finances.

On this background, in the programme, the applicants, as producer of the programme and as chief sub-editor, have made an allegation against the National Hospital and S of malpractice and of nourishing irrelevant considerations to the detriment of the lives and health of patients. Such an accusation is likely to disparage them [the National Hospital and S] in the eyes of their fellow citizens as set out in Article 267 of the Penal Code. It must have been clear to them [the applicants] that they made such an allegation by way of their presentation of the programme.

The applicants have not attempted to establish the truth of the allegation, but have submitted that the allegation shall be unpunishable by virtue of Article 269 (1) of the Penal Code as they acted in lawful protection of an obvious public interest or the interest of others or, in the alternative, that punishment should be remitted under Article 269 (2) of the Penal Code because they were justified in regarding the allegations as true.

These provisions must, in connection with Article 267 of the Penal Code, be understood in the light of Article 10 of the Convention on the protection of freedom of expression. A very considerable public interest is related to judicial discussion about risk to life and health, or suspicion thereof, as regards public hospital treatment. When balancing considerations of freedom of expression with considerations of the protection of the name and reputation of persons and companies, the former is accorded tremendous weight on the scale. That entails acknowledgement of a very far-reaching freedom of expression for the press, and accordingly the press must be permitted, as the public control- and information organ ( ‘ public watchdog ’ ), a certain amount of exaggeration and provocation in connection with their discussion of these questions, when factually there are reasons for expressing criticism.

On the basis of the information in the case, including the research material, of which the first applicant was in possession before the broadcast of the programme, in particular the e-mails from [the medical doctor from Grosshandorf Hospital in Germany and the professor from Switzerland], the replies by the Minister for Internal Affairs and Health to various questions [posed by Members of Parliament], and the note of 11 June 2008 produced by the National Hospital [about pleural mesothelioma cancer], it can be established that Vinorelbine in combination with Cisplatin or Carboplatin was standard treatment at the National Hospital, that the European Union on 20 September 2004 approved the marketing of Alimta in connection with Cisplatin for treatment of inoperable patients with pleural mesothelioma cancer, that there was no substantiation or basis for believing that an Alimta-based treatment was more efficient than the treatment offered by the National Hospital, that some patients at the National Hospital, who were already about to receive Vinorelbine as standard treatment, were chosen and offered the same medicine as part of a test [it is not known for what], and that S did not make any private financial profit from these tests.

On this background, including the fact that the word ‘ approved ’ was not explained during the programme, namely the difference between medication approved for treatment and [medication] approved for marketing, and by consistently using the word “test medication”, even though only one patient in the programme participated in tests, [the applicants] made allegations which were based on a wrong factual basis, of which they must have been aware via the research material.

The aim of the programme – to make a critical assessment of the treatment of patients with pleural mesothelioma cancer offered by the National Hospital and the responsible consultant – is a legitimate part of the press ’ s role as ‘ public watchdog ’ , but it cannot justify an allegation, which is built on a factually wrong basis, and thus a wrong premise. [The applicants], who did not limit themselves to referring to or disseminating statements by experts, patients and relatives, did not have any basis for making such serious allegations against the National Hospital and S. The allegations do not become justified by the fact that the National Hospital and S refused to participate in the programme.

On this background, and since in relation to Article 10 there is no interest to protect when there is no factual basis for the accusations, the allegations are not unpunishable under Article 269 (1), nor is there any basis for remitting the punishment under Article 269 (2) [of the Penal Code].

It is an aggravating factor that the wrongful accusations were disseminated on national television during primetime and on DR ’ s homepage, by means of which the accusations had a significant spread.

Accordingly, [the High Court] agrees [with the Copen hagen City Court ’ s judgment] that [the applicants] were fined under Article 267, and that the allegations were declared null and void by virtue of Article 273 (1).

The High Court thus upholds the judgment by the Copenhagen City Court.”

12 . On 27 October 2011 the Appeals Permission Board ( Procesbevillingsnævnet ) refused the applicants ’ request for leave to appeal to the Supreme Court ( Højesteret ).

B. Relevant domestic law

13 . The relevant provisions of the Danish Penal Code applicable at the time read as follows:

Article 267

“Any person who tarnishes the honour of another by offensive words or conduct or by making or spreading allegations of an act likely to disparage him in the eyes of his fellow citizens shall be liable to a fine or to imprisonment not exceeding four months.

Article 268

“If an allegation has been maliciously made or disseminated, or if the author has no reasonable ground to regard it as true, he shall be guilty of defamation, and the punishment mentioned in Article 267 may increase to a term not exceeding two years.”

Article 269

“1. An allegation shall not be punishable if its truth has been established or if the author of the allegation has in good faith been under an obligation to speak or has acted in lawful protection of an obvious public interest or of the personal interest of himself or of others.

2. The punishment may be remitted where evidence is produced which justifies the grounds for regarding the allegations as true.”

Article 272

“The penalty prescribed in Article 267 of the Penal Code may be remitted if the act has been provoked by improper behaviour on the part of the injured person or if he is guilty of retaliation.”

Article 273

“1. If a defamatory allegation is unjustified, a statement to that effect shall, at the request of the injured party, be included in the sentence.”

COMPLAINT

14 . The applicants complain that the judgment of the High Court amounted to a disproportionate interference with their right to freedom of expression guaranteed by Article 10 of the Convention.

QUESTIONS TO THE PARTIES

1. Has there been a violation of the applicants ’ right to freedom of expression, contrary to Article 10 of the Convention?

2. In that connection, can the National Hospital, being a public body, claim protection of the reputation or rights of “others”, as set out in paragraph 2 of Article 10?