A victory for freedom of expression

The case concerned an anaesthetist and intensive care doctor, a member of his hospital’s Medical Council, who had published an article critical of the health measures linked to the Covid‑19 pandemic. This text, published in an online medical journal, had led to a warning from the Medical Council (Ordre des médecins), which considered that the article lacked caution and risked discrediting the health authorities.

The matter could have ended there, since the warning was not accompanied by any real sanctions, but our anaesthetist would have none of it and took the Order to court.

The initial disciplinary sanction

In its initial decision, the Appeal Council of the Medical Council had confirmed the disciplinary sanction of a warning imposed on the practitioner. It reproached him in particular for having relied on factual bases deemed insufficient to criticise the preventive measures, and for having neglected essential aspects such as quality of care and the protection of vulnerable patients. Moreover, the Order considered that the article could encourage a relaxation of health measures while the virus was still active.

The arguments before the Court of Cassation

The doctor appealed to the Court of Cassation, invoking a violation of his freedom of expression guaranteed by Article 10 of the European Convention on Human Rights (ECHR). He argued that his remarks were part of a debate of general interest and were based on real factual elements, albeit minority or controversial ones.

The position of the Court of Cassation

In its ruling, the Court of Cassation criticised the approach of the Medical Council. It considered that the institution had exceeded its role by substituting its own value judgement for that of the doctor. The Court recalled that, in a democratic society, restrictions on freedom of expression must be proportionate and justified by a pressing social need. It stressed that even shocking or minority opinions enjoy a high level of protection when they contribute to a public debate on questions of general interest.

This position is reinforced by the case law of the European Court of Human Rights.

Indeed, in the case of Hertel v. Switzerland, in 1998, the Court protected a Swiss researcher who had published work criticising the effects of microwaves on health, considered minority and controversial views.

The ECHR had held that even unpopular or contested opinions deserve to be protected in a democratic society, especially when they form part of a debate of general interest.

Similarly, in the judgment Fressoz and Roire v. France, in 1999, the Court defended journalists who had published sensitive information on tax income, recalling that freedom of expression also includes information that may shock or disturb when it serves public debate.

These principles find a direct echo in the case of the Belgian doctor, who chose to express a critical opinion on the health measures linked to the pandemic.

A victory for freedom of expression

Consequently, the Court of Cassation annulled the disciplinary sanction, ordering the case to be referred back to a differently composed Appeal Council.

This ruling is an important victory for the freedom of expression of health professionals, while recalling that this freedom comes with responsibilities and must be exercised with respect for medical ethics.

A fundamental reminder

By quashing a disciplinary decision of the Medical Council, the Court of Cassation stressed that a disciplinary authority such as the Order cannot impose its own interpretations in order to discredit value judgements. As the Court so aptly put it: “In a debate of general interest, freedom of expression cannot be limited to setting out only generally accepted ideas; it extends to the dissemination of information that offends, shocks or disturbs in areas where certainty is lacking.”

This statement is part of a continuity of case law established by the European Court of Human Rights, as shown by the case of Hertel v. Switzerland^[1], which defended minority ideas against commercial pressure, or the judgment Fressoz and Roire v. France^[2], which strengthened journalists’ freedom of expression on sensitive subjects.

These precedents confirm that, in complex debates such as those on health measures or vaccination, a plurality of voices is essential to guarantee genuine democratic debate.

Case law that is highly embarrassing for the Order

In concrete terms, the Medical Council may bring new disciplinary proceedings against the practitioner concerned, but the arguments underpinning the proceedings have been invalidated by the Court of Cassation, making any new action very unlikely.
This ruling also opens the way for other doctors sanctioned by the Order during the Covid crisis to rely on this decision, in particular by seeking the annulment of their own sanctions. In theory, it could also make it possible to claim compensation for the harm suffered, although the legal feasibility of such steps depends on specific cases and could require in-depth analysis. Moreover, this decision strengthens the hope of the doctors concerned of restoring their reputation and effectively challenging the disciplinary measures taken against them. We think in particular of Dr Alain Colignon, Dr Pascal Sacré, Dr Laurence Kayser, Dr David Bouillon, Dr Gaëtane Beeckaert, Dr Frédéric Goareguer, Dr Cécile Andri, Dr Stéphane Résimont and so many others.

Isabelle Duchateau and Marcan for BAM!

Read the full judgment of the Court of Cassation (in French):

https://www.cass.be/pdf/arresten‑arrets/D.23.0001.F.pdf

Illustration

Photo by Johan Pafenols, Court of Cassation, Palace of Justice in Brussels, Room 1.36

File:Hof van Cassatie - gewone zittingszaal.jpg - Wikimedia Commons

[1] https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001‑62778%22]}

[2] https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001‑28678%22]}