DISSENTING OPINION OF SIR NICOLAS BRATZA

I regret that I am unable to share the view of the majority of the Chamber that there has been a violation of the applicant ' s rights under Article 10 of the Convention.

I am in full agreement with the analysis in the judgment of the general principles which should govern the Court ' s approach to the issues raised in a case such as the present. Two of those principles are to my mind of particular relevance.

(i) Press freedom is of cardinal importance in a democratic society, the press having both a right and a duty to impart, in a manner consistent with its obligations and responsibilities, information and ideas on all matters of public interest and concern. Accordingly, careful scrutiny is called for on the part of the Court of the proportionality of measures taken by national authorities which are capable of discouraging the press from performing its vital role as “public watchdog”. However, the exercise of the freedoms guaranteed by Article 10 carries with it “duties and responsibilities” which not only apply to the press but assume special significance when, as in the present case, the statements made may affect the reputation and rights of other private individuals. As the Court has consistently held, these duties and responsibilities are such that the guarantees afforded to journalists by Article 10, in reporting on issues of general interest, are subject to the proviso that they are acting in good faith in order to provide accurate and reliable information in accordance with the ethics of journalism. Thus, special grounds are required before the media can be dispensed from their ordinary obligation to verify factual statements that are defamatory of private individuals. Whether such grounds exist depends in particular on the nature and degree of the defamation in question and the extent to which the media can reasonably regard their source as reliable with respect to the allegations (see, among other authorities, McVicar v. the United Kingdom , no. 46311/99, § 84, ECHR 2002–III and Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 66, ECHR 1999-III).

(ii) The Court ' s task in exercising its supervisory function is not to take the place of the national authorities but rather to review under Article 10, in the light of the case as a whole, the decisions they have taken pursuant to their power of appreciation. In carrying out this task, the Court must assess whether the reasons given by the national authorities are both relevant and sufficient to show that the interference was “necessary in a democratic society” and proportionate to the legitimate aim served.

I share the view of the majority of the Chamber that the reasons relied on by the national courts and by the respondent State were relevant to show that the interference was necessary. Where I part company with the majority is as to their view that the reasons were not “sufficient” and that the interests of X in protecting his professional reputation were not such as to outweigh important matters of legitimate public concern.

It is beyond dispute that the general subject matter which was at the heart of the three articles concerned – namely, the dangers posed to the public by alcohol abuse on the part of members of certain professions, notably surgeons and pilots – was a matter of great and legitimate public interest. However, the articles of 4 January 1996 and 27 February 1996 which were the subject of the defamation proceedings against the applicant differ from that of 9 January 1996 in that they focussed on the specific case of the operation carried out by surgeon X, which resulted in the death of Mrs Haapalainen. Both articles, as found by the national courts, contained a clear allegation that X had been drunk or had been suffering from a hangover while operating on Mrs Haapalainen and that this had led to her death – an allegation which, as the Court of Appeal observed, was of the utmost seriousness for the reputation and professional standing of a practising surgeon.

Both the District Court and the Court of Appeal acknowledged that the press were free to report critically on hospitals and on any alcohol abuse that might have been established in such an institution and that, as a practising surgeon in a public hospital, X ' s professional activities were such that he had to accept even strong criticisms of his behaviour. But both courts also stressed that such criticism had to be appropriate and based on fact. While the media may not always be able to obtain confirmation of the absolute veracity of information which was to be published, such information should, in the view of the Court of Appeal, at any rate be sufficiently grounded in fact and allegations against a specific person should be critically examined. The more serious and damaging the allegation made, the stronger the obligation to confirm the truth of the information on which the allegation is based.

It was the unanimous conclusion of both courts that the impugned articles did not meet those criteria. In the view of the Court of Appeal, the information gleaned from the interview with Mr Haapalainen and the selected parts of the statements in the pre-trial investigation file did not afford a reliable basis for the allegations contained in the articles. Moreover, despite being aware of the conclusions of the National Medico-Legal Board, as well as the fact that no prosecution had been brought against X, the applicant had failed to check in detail the terms of the Board ' s opinion or the outcome of the pre-trial investigation. This being so, the applicant had accused X of an offence, as well as of reprehensible conduct, “without having verified the allegations and without having had any objectively weighty grounds or likely reasons for considering the defamatory allegations truthful”. In addition, the Court of Appeal found that X had not been given the possibility of presenting his views in respect of either article.

In concluding that the reasons given by the national courts, and adopted by the respondent Government, were not sufficient to justify the interference with the applicant ' s freedom of expression, the majority of the Chamber place reliance on a number of features of the case – the fact that it had not been claimed that the actual facts were erroneous as such; the fact that, although the reporting was somewhat one-sided, it had been based on information included in the public pre-trial records; the fact that in March 2001 the Deputy Parliamentary Ombudsman found that it would have been preferable if charges had been brought against X; the fact that at no point was X ' s name, age or gender mentioned in the articles in question; and the fact that X was provided with an opportunity to present his comments after publication of each article. In my view, none of these factors, whether considered individually or cumulatively, are such as to justify the conclusion that the domestic courts exceeded any acceptable margin of appreciation.

Even if the national courts did not find the facts stated in the two articles to be erroneous as such, they clearly found that there was no sufficiently reliable information to support the allegation that X had been under the influence of alcohol when operating on Mrs Haapalainen. The fact that the information in the article of 27 February 1996 was obtained from public pre-trial records and contained direct quotations from statements by hospital staff has to be viewed in the light of the national courts ' finding that the applicant had selected only those parts of the records which supported her own thesis and, more importantly, that she had omitted to mention that the County Prosecutor had issued a reasoned decision not to institute criminal proceedings – a decision reached on the basis of all the material in the pre-trial file.

While accepting that this failure on the applicant ' s part was “problematic”, the majority of the Chamber emphasise that “although aware of the decision of the County Prosecutor , the applicant had only obtained a copy of it after the publication of 27 February 1996 ”. It is also pointed out that the County Prosecutor ' s decision has in any event to be seen in the light of the decision of 22 March 2001 of the Deputy Parliamentary Ombudsman. I do not consider that either point assists the applicant. The Prosecutor ' s decision had been taken in April 1994, nearly two years before the impugned articles were published. I find it difficult to see how the failure of the applicant to obtain a copy of the decision before publication of the two articles may be said to be consistent with the diligence expected of a responsible journalist. Moreover, when judging the necessity and proportionality of measures taken by the national courts in 1998 and 1999, I cannot attach much weight to the fact that in 2001 the Deputy Parliamentary Ombudsman voiced a view different from that of the County Prosecutor some 7 years before. Still less can I accept that the decision of the Deputy Ombudsman suggests, as the judgment of the Chamber argues, that “the applicant had not failed to verify the facts appropriately” (judgment, § 62).

As to the fact that X ' s identity “was never expressly communicated to the general public” (judgment, § 64), I am again unable to attach the same importance to the point as the majority of the Chamber when it is borne in mind that the national courts found it to be established that, as a result of details given in the two articles, X was identifiable in his home town, in his working place and beyond his immediate circle and acquaintances.

The opportunity afforded to X to reply to the allegations made against him was, as the judgment correctly acknowledges, a “somewhat limited” one. It is apparent from the judgments of the national court that X was given no possibility to comment in advance of the publication of either article. In this respect the case is to be distinguished from that of Bergens Tidende and Others v. Norway (no. 26132/95, ECHR 2000-IV) in which Doctor R, the subject of the articles in question, had been approached by the applicant newspaper prior to the publication of the articles and his comments invited on the interviews which the applicant had conducted with his former patients. While it is common ground that X was given an opportunity to have any comments or rejoinder published after the articles had appeared in print, this cannot in my view be regarded as affording him an effective opportunity to defend himself, the damage to his reputation having already occurred.

The judgment concludes in paragraph 68 by noting that the purpose of the applicant ' s articles was to discuss matters of patient safety and that the operation on Mrs Haapalainen was selected as an example illustrating the problems involved. While I accept that it is perfectly legitimate to use individual cases to highlight a more general problem, where, as in the present case, this involves the making of serious allegations against an identifiable individual, special care must be exercised to ensure the accuracy of the allegations made. The national courts were, I consider, entitled to conclude that the necessary care had not been shown in the present case.

As to the penalty imposed on the applicant, the majority of the Chamber assert that the limited nature of the fine cannot be decisive as regards the issue of necessity, the fact that the applicant was convicted being of greater significance. The relatively modest amount of the fine may not be of decisive importance but it is in my view of clear relevance to the proportionality of the interference with the applicant ' s Article 10 rights. Although I have reservations in principle about the use of criminal sanctions to punish statements defamatory of private individuals, neither the conviction of the applicant nor the fine imposed on her in the present case can in my view be regarded as disproportionate to the legitimate aim of protecting the rights of others.

[1] I n the original language apparently incorrectly referred to as the Board for Patient Injuries ( potilasvahinkolautakunta , patientskadenämnden ).