Published on 20 February 2023

FOURTH SECTION

Application no. 20007/22 Klaus BIELAU against Austria lodged on 13 April 2022 communicated on 1 February 2023

SUBJECT MATTER OF THE CASE

The application concerns disciplinary proceedings against the applicant, a medical doctor, who runs a website for holistic medicine. On 27 June 2017 the Disciplinary Council ( Disziplinarrat ) of the Austrian Chamber of Medical Doctors ( Ärztekammer ) fined the applicant 2,000 euros, suspended on probation. It found that on his website he had denied the existence of pathogenic viruses and he had published statements that vaccination never protected against disease, that nature knew no diseases and that not a single disease had disappeared through vaccination. He was found guilty of the disciplinary offences under section 136 § 1.1 and § 1.2 of the Medical Practitioners Act ( Ärztegesetz) . On 12 November 2018 the Steiermark Regional Administrative Court dismissed the applicant’s complaint against this decision. Based on an expert opinion, it found that the applicant’s statements were not in line with the state of science and that the applicant had dealt with the issue of vaccination in a one-sided negative manner. Section 53 § 1 of the Medical Practitioners Act prohibited unobjective, untrue information by the medical doctor in connection with the exercise of his or her profession. Section 1 of the Regulation of the Austrian Chamber of Medical Doctors on the nature and form of permissible information to the public (“the Regulation”) provided that medical doctors were prohibited from providing any information that was unobjective, untrue or detrimental to the reputation of the medical profession. The Regional Administrative Court concluded that the applicant had damaged the reputation of the medical profession through his conduct and had violated his professional duties pursuant to section 136 § 1.1 and § 1.2 in combination with section 53 § 1 of the Medical Practitioners Act and section 1 of the Regulation. The applicant’s remedies with the Constitutional Court and with the Supreme Administrative Court remained unsuccessful.

The applicant complained under Article 10 of the Convention that the disciplinary sanction issued against him had violated his right to freedom of expression.

QUESTIONS TO THE PARTIES

Has there been an interference with the applicant’s freedom of expression, in particular his right to impart information and ideas, within the meaning of Article 10 § 1 of the Convention?

If so, was that interference prescribed by law and necessary in terms of Article 10 § 2 (see, in the context of public health debates, Hertel v. Switzerland , 25 August 1998, §§ 46-51, Reports of Judgments and Decisions 1998 ‑ VI; Vérités Santé Pratique Sarl v. France (dec.), no. 74766/01, 1 December 2005; and Palusinski v. Poland (dec.), no. 62414/00, 3 October 2006)?