EHRM, 02-12-2008, nr. 18620/03

The applicant argued that the freedom of expression was at its widest in a doctor-patient relationship. Referring to the principles laid down in the case of Nikula v. Finland (no. 31611/96, § 44, ECHR 2002-II) the applicant submitted that, just like defence counsel's freedom of expression, the freedom of expression in a doctor-patient relationship required particular protection. When a parent or relative finds that a small child has bruises, should he or she be afraid to repeat to the doctor what the child has told him or her? If there exists doubt as to the origin of a bruise, should it be punishable to engage in a discussion with the doctor about the various possibilities? A doctor must be able to rely on the truthfulness of a patient's statement and it was equally clear that false statements regarding, inter alia, sexual abuse, were punished. A medical doctor was, however, an expert in matters relating to physical abuse. If the patient raises a concern regarding his or her son's or grandson's injuries, the doctor can directly judge whether or not the concerns are substantiated.

The applicant had seen a bruise on the boy after he had visited his father. The boy had told her how the bruise had come about. The applicant had never accused T. of assaulting his son, but expressed concern to the doctor as regards the boy's injuries. The doctor had found the bruise to be consistent with a possible assault by T. of his son. It is clear that one cannot report assault to the police unless there is evidence supporting the allegation. It cannot, however, be so that the required level of certainty is the same both for reporting an assault to the police and for consulting a doctor to ask his opinion.

The applicant argued that, as regards the requirement of ‘prescribed by law’, the relevant repealed provision of the Penal Code was problematic. It was possible for a person to be sentenced for defamation even if the act was unintentional, if he was not able to satisfy the shifted burden of proof, that is, to prove himself innocent. Furthermore, could a reasonable person be expected to understand that this provision would be applied when expressing concern to the family doctor about the origin of bruises on her grandson? In order for an offence to be punishable, the law had to be particularly precise. The Supreme Court had delivered 35 published judgments on defamation or slander. There was no established doctrine, correcting the imprecision in law, on the basis of which the applicant could or should have foreseen that she could be prosecuted.

The Government conceded that the liability to pay damages and the conviction, although the sentence was waived, amounted to an interference with the applicant's right to freedom of expression. It had a basis in section 10(1) of the then Constitution Act, Chapter 27, Articles 1 and 2, of the Penal Code and Chapter 5, section 6, of the Tort Liability Act. Their interpretation in the present case had in no way been arbitrary. The interference aimed to protect the rights of the boy's father. Taking into account the margin of appreciation left to the Contracting States, the national authorities were, in the circumstances of the case, entitled to interfere with the exercise of the applicant's right to freedom of expression (compare Tammer v. Estonia, no. 41205/98, § 69, ECHR 2001-I), and this interference was necessary in a democratic society. The impugned measures, the waived sentence, the modest non-pecuniary damages and costs were ‘proportionate to the legitimate aim pursued’ and the reasons adduced by the courts to justify them were ‘relevant and sufficient’ within the meaning of Article 10 § 2.

The Government submitted that the Court of Appeal had found it proved that the applicant had alleged that T. had assaulted his son, by giving the doctor to understand that an assault had taken place. The applicant had not produced such grounds for the suspicion that would justify her allegations or prove that the insinuations were true. The fact that the boy had told her that his father had punched him could not be accorded significance as a reasonable cause for the suspicion, considering his young age and the fact that she had discussed the matter with him the previous evening, and as he might also have heard the preliminary information provided by her prior to the discussion between him and the doctor.

The case mainly involved assessment of evidence. The Court of Appeal firstly assessed whether the applicant had intentionally expressed a suspicion that T. had assaulted the boy, finding in the affirmative. Secondly, it assessed whether the applicant had sufficient cause to express her suspicion that T. had committed an assault. The court answered this question in the negative, finding that the applicant had not produced reasonable cause required by the Penal Code in support of her suspicion. Therefore, it convicted her of defamation.

In the light of the evidence provided, the Court of Appeal had not and could not have taken a stand on whether the applicant's report to the doctor on a suspected assault was originally expressed by her or whether the boy had told her so. The court assessed the case as a whole, took account of the applicant's particular status as the boy's grandmother, and considered her action excusable, waiving punishment and only ordering her to compensate for the distress caused to T.

Assessing the type of the boy's injury and determining the need for medical care or protecting the doctor-patient relationship did not require the name of the person who might have caused the bruise to be mentioned. Medical confidentiality is without significance, because the mere informing of an unfounded suspicion may fulfil the essential elements of an offence.

As regards the reference to the case of Nikula v. Finland (cited above) the Government submitted that it was not as such comparable to the case under consideration, because it concerned defence counsel's freedom of expression, which required particular protection, whereas the present case concerned a private individual's freedom of expression when consulting a doctor.

As for the applicant's view that the old defamation provision was not sufficiently precise to permit her to foresee how it would be applied in her case, the Government noted that it laid down expressly that reasonable cause must be produced in support of the reproach and its application was therefore foreseeable. Its application became established case-law over a long period of time, on the basis of which it was clear that expressing unfounded suspicions of a crime committed by another person was to be considered defamation.

In exercising its supervisory function, the Court must look at the impugned interference in the light of the case as a whole including, in this case, the content of the remark held against the applicant and the context in which it was made.

It was common ground between the parties that the applicant's conviction constituted an interference with her right to freedom of expression, as guaranteed by Article 10 § 1 of the Convention. Furthermore, the parties agreed that the interference pursued a legitimate aim, namely the protection of the reputation or rights of others, within the meaning of  Article 10 § 2. The Court endorses this assessment. The applicant and the Government differed on whether the interference was ‘prescribed by law’ and ‘necessary in a democratic society.’ As to the former issue, the Court accepts that the applicant's criminal conviction was based on a reasonable interpretation of the Penal Code as in force at the relevant time and that the order requiring her to pay damages was based on the relevant provision of the Tort Liability Act. The interference was thus ‘prescribed by law’ (see Nikula v. Finland, cited above, § 34; Selistö v. Finland, no. 56767/00, § 34, 16 November 2004 and Karhuvaara and Iltalehti v. Finland, no. 53678/00, § 43, ECHR 2004-X). It remains to be determined whether the interference in question was ‘proportionate to the legitimate aims pursued’ and whether the reasons adduced by the national authorities to justify it were ‘relevant and sufficient’. In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they based themselves on an acceptable assessment of the relevant facts (see Nikula v. Finland, § 44).

This case calls into consideration two countervailing interests, each of high social importance: the need to safeguard children from abuse by their own parents, and the need to protect parents from unnecessary interference with their right to respect for their private and family life or the risk of unjustified arrest and prosecution. The first of these interests involves protection of children as the victims of crime. The Court has emphasised that children and other vulnerable individuals, in particular, are entitled to State protection, in the form of effective deterrence, against such serious breaches of personal integrity (see, mutatis mutandis, X and Y v. the Netherlands, 26 March 1985, §§ 21–27, Series A no. 91; Stubbings and Others v. the United Kingdom, 22 October 1996, §§ 62–64, Reports 1996-IV; and also the United Nations Convention on the Rights of the Child, Articles 19 and 37). The Court would refer, in particular, to the case of A. v. the United Kingdom (23 September 1998, § 22, Reports 1998-VI) where a stepfather had subjected a child to treatment contrary to Article 3 and where he was acquitted having argued that the treatment amounted to ‘reasonable chastisement’. The Court held in that case that the obligation under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken together with Article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman or degrading treatment or punishment, including such ill-treatment administered by private individuals.

If the source of the abuse is the parent, the child is at risk from his primary and natural protector within the privacy of his home. Child abuse is indeed a hard form of criminal conduct to combat, because its existence is difficult to uncover. Babies and young children are unable to tell, older children are often too frightened. The question raised by this application is how to strike a proper balance when a parent is wrongly suspected of having abused his or her child, while protecting children at risk of significant harm. In considering these questions, the starting point is to note that the applicant acted properly in considering whether the bruise on the boy's back had been deliberately inflicted. Having become suspicious, she consulted a medical doctor who rightly decided to communicate to the child welfare authorities the suspicion which he personally formed having examined and interviewed the boy. That is the essential next step in child protection. The seriousness of child abuse as a social problem requires that persons who act in good faith (see, mutatis mutandis, Guja v. Moldova [GC], no. 14277/04, § 77, ECHR 2008-…), in what they believe are the best interests of the child, should not be influenced by fear of being prosecuted or sued when deciding whether and when their doubts should be communicated to health care professionals or social services. There is a delicate and difficult line to tread between taking action too soon and not taking it soon enough. The duty to the child in making these decisions should not be clouded by a risk of exposure to claims by a distressed parent if the suspicion of abuse proves unfounded.

It is true that the applicant was convicted merely of defamation committed ‘without better knowledge’, to be distinguished from defamation ‘despite better knowledge’, that is to say, intentionally imputing an offence to T. whilst knowing that he had not committed it (rather than voicing a mere suspicion that he had). Nonetheless, the threat of an ex post facto review in criminal proceedings of a concerned grandmother's statement made in good faith to the child's doctor accords ill with every adult's moral duty to defend a child's interests. The Court finds it alarming that the Court of Appeal took the view that the applicant, when there was no doubt that she had seen the boy's bruised back, was not entitled to repeat what the boy had told her, that is, that he had been hit by his father, a matter which he had repeated when interviewed by the doctor. The possibility to voice a suspicion of child abuse, formed in good faith, in the context of an appropriate reporting procedure should be available to any individual without the potential ‘chilling effect’ of a criminal conviction or an obligation to pay compensation for harm suffered or costs incurred.

The Court is aware that the spectre of vexatious litigation is often used as a reason for requiring that extra care be shown when making a report on alleged child abuse to the authorities. It was not argued before the domestic courts or before this Court that the applicant acted recklessly, that is without caring whether the boy's allegation of abuse was well-founded or not. On the contrary, even a health care professional, the medical doctor, made his own assessment that the case should be reported to the child welfare authorities.

It is therefore only in exceptional cases that restriction of the right to freedom of expression in this sphere can be accepted as necessary in a democratic society. In the Court's view, sufficient reasons for the interference have not been shown to exist and the restriction on the applicant's right to freedom of expression therefore failed to answer any ‘pressing social need’.

There has therefore been a violation of Article 10 of the Convention.