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11.12.2017

Danish journalists’ criminal conviction upheld over cancer documentary

By Emil Weber

The European Court of Human Rights (ECtHR) has on 5th December 2017 upheld the domestic conviction of two journalists in Denmark over their reporting on cancer treatment by the Copenhagen University Hospital and its consultant. They were convicted of defamation, which is a criminal offence in Denmark.

The European Court of Human Rights (ECtHR) in Strasbourg The European Court of Human Rights (ECtHR) in Strasbourg (photo: Nicoleon, Cour européenne des droits de l'homme, CC BY-SA 4.0)

Ms Mette Frisk as author and Mr Steen Jensen as responsible editor, in September 2008, published a prime time documentary in one of the national television networks entitled “When the doctor knows best”. The program addressed the fact that the hospital and its consultant were using Vinorelbine rather than Alimta as a chemotherapy medication for pleural mesothelioma cancer, in combination with Cisplatin or Carboplatin. 

Following a defamation application from the hospital and the consultant, during 2010-2011 the Copenhagen City Court and later the High Court of Eastern Denmark ruled against the journalists and the television director according to the criminal code. They were fined and also to pay the costs of proceedings. The content of the documentary was declared null and void.

The ECtHR ruled that the domestic decisions did not amount to violation of freedom of expression according to article 10 of the European Convention on Human Rights.

It said the topic of the documentary was in the public interest and the hospital and its staff members were vested with public functions. In such cases, it maintained, the limits to acceptable criticism are wider compared to cases of private individuals.

However, the top European Court agreed with the domestic assessment of the documentary’s content in that it had created an impression of malpractice. It gave the impression that the use of Vinorelbine was not approved for treatment of pleural mesothelioma cancer, that the drug was deliberately used for testing while its effects were not substantiated, and that the patients had died or had their lives shortened due to the medication test.

After the TV programme was broadcast, the Patient Insurance Association had received several complaints and the Copenhagen University Hospital reported that the patients increasingly chose Alimta rather than Vinorelbine.

"Accusations rested on a factually incorrect basis"

“Those (documentary) accusations rested on a factually incorrect basis”, the ECtHR judgement said. It referred to the domestic courts’ findings that various expert responses to the documentary including some from Switzerland and Germany, plus responses of the respective minister to the Parliament, and a memorandum from the hospital indicated that the practice that the journalists had questioned was a standard treatment, that there was no evidence that an Alimta treatment was more efficient, and that not all patients were part of a clinical trial. In any case the consultant did not benefit financially from such a clinical trial.

The journalists were in possession of this material before their program was broadcast. The Copenhagen University Hospital had said during the preceding hearing that it alone “spent about a man-year, or about 400,000 Danish krone on responding to inquiries from [the author], and huge efforts were made to accommodate her requests”.

In considering the proportionality of the domestic ruling, the ECtHR mentioned also the fact that the program was broadcast on television, that it had “important consequences”, and that it created distrust of the hospital and the consultant.

"No chilling effect"

The ECtHR ruled that neither the criminal sentence nor the fees and costs of proceeding in the case could be seen as “chilling effect on the exercise of media freedom” and “unreasonable or disproportionate”.

“The reasons relied upon were both relevant and sufficient to show that the interference complained of was ‘necessary in a democratic society’ and that the authorities of the respondent state (Denmark) acted within their margin of discretion in striking a fair balance between the competing interests at stake”, the ECtHR ruled. 

Case of Frisk and Jensen v. Denmark, application no. 19657/12. 5 December 2017

 





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