Freedom of expression and the Order of Physicians

( Does no harm just this once : Belgian justice sometimes recovers some dignity ! )

Translated from https://www.kairospresse.be/liberte-dexpression-et-ordre-des-medecins/

In a scathing judgment of 12 December 2024, the Belgian Court of Cassation recalled the fundamental principles of freedom of expression, which is formally guaranteed by Articles 10 of the Convention for the Protection of Human Rights (1) and 19 of the Belgian Constitution (2) , proclaiming that " in a debate of general interest, freedom of expression cannot be limited to the presentation of generally accepted ideas alone; it extends to the dissemination of information that offends, shocks or disturbs in areas where certainty is lacking."

In fact, the Court was required to rule on the legality of a disciplinary sentence handed down on 13 December 2022 by the Appeals Council of the Order of Physicians (OM) which had imposed the disciplinary sanction of a warning on one of their members who had published an article critical of the health measures taken in the context of the covid-19 “pandemic”, on the grounds that this article lacked caution and could be misleading for the general public, and that it therefore discredited the medical profession.

The Court's basic argument can be summarised as follows: " A public authority, and in particular a disciplinary authority, may restrict a person's freedom to express a value judgment in a debate of general interest where certainty is lacking only on condition that it does not rest on a sufficient factual basis; it may not, in examining this condition, substitute for the value judgment expressed another value judgment which it considers preferable. "

In this case, the doctor being prosecuted - the applicant in cassation - had indeed relied on factual elements deemed sufficient by the OM, in this case statistics revealing a drop in hospitalizations (in August 2020); this doctor had therefore deduced that maintaining such strict health measures was not justified, which constitutes a "value judgment" or an opinion, concepts precisely protected by the principle of freedom of expression (3) .

However, in its obsessive desire to impose its point of view, the OM believed it appropriate to substitute its own assessment of the facts ( i.e. statistics) for that of the doctor being prosecuted, and to add other factual elements and interpretations of these (nine in all!) to form the basis of its decision. Therefore, the Court having noted that the OM had substituted its own value judgments for those of the applicant, while noting that the factual bases are not contested, considers that " the contested judgment could not legally decide that the applicant's right to freedom of expression did not prevent a disciplinary sanction ": in short, the principles of freedom of expression were indeed respected by the applicant and therefore the disciplinary sanction is not justified!

The case is therefore referred back to the Appeals Council of the Order of Physicians, which will be composed differently and will have only two possibilities: either it follows the Court's argument and acquits the doctor being prosecuted (and therefore disavows his position!) or it upholds the initial conviction by developing a better argument, but risking a second appeal in cassation...

Several lessons can be learned from this unexpected judicial event:

In full compliance with the consistent case law of the European Court of Human Rights (ECHR), the Court therefore indicates that all "value judgments" are equal, provided that they are supported by " sufficient " factual elements (4) : the governmental and professional doxa in terms of management of the "health crisis" can therefore be criticized (5) , and opinions can be validly expressed even if they " offend, shock or worry in areas where certainty is lacking", or even if an opinion " is in the minority and may seem unfounded ": to remind the "virtuous" fact-checkers...

Freedom of expression is indeed a fundamental characteristic of a " normally plural, tolerant and open-minded democratic society", as stated in the consistent case law of the ECHR, as cited by the applicant in his application. Until proven otherwise, we therefore live in a plural and pluralist society, and in respect of which binary arguments are not only Manichean, but seem to be more akin to manipulation or intoxication on the part of their authors.

Justice is not a monolithic bloc and it is not "totally corrupt": it is delivered by magistrates who - like society - have diverse sensibilities, and who, like each of us, can demonstrate intellectual rigor or laziness.

It therefore seems appropriate to initiate legal action whenever one does not agree with so-called "political" decisions, even if the chances of success are not guaranteed: in fact, officially expressing one's disagreement with the authorities' discourse delays the advent of a totalitarian state in which speech is no longer free and where everyone remains silent...

OM appears to have acted with great carelessness (6) when drafting its sentence by omitting the principles of freedom of expression guaranteed by the Safeguarding Convention and the Constitution, and in doing so by failing to respect the rule of law (7) . It is by draping itself in the role of defender of the dignity of the profession and of respect for ethical rules — a fine example of corporatism! — and by being blinded by its desire to impose its point of view at all costs that OM arrived at the opposite result to what it wanted: the best is the enemy of the good, or he who embraces too much, embraces badly! (8)

Furthermore, it is regrettable that the Court did not respond to the second argument developed by the applicant in his application, which concerned censure: in fact, the first argument relating to the substitution of value judgments was welcomed favourably by the Court and was therefore sufficient to quash the contested award, without it having to examine the second argument.

Concretely, not content with substituting its point of view for that of the applicant, the award had also criticised the applicant for not having sought the opinion of the OM before publishing the disputed article, which obviously amounts to prior censorship formally excluded by Articles 19 and 25 (9) of the Belgian Constitution and Article 10 of the Safeguarding Convention, and which is also confirmed by the constant case law of the ECHR .

In conclusion, thanks to this particularly stubborn doctor, Belgian citizens will be able to continue to freely express their various critical opinions, provided that they are sufficiently supported. Belgian doctors seem to have escaped the establishment of an obscurantist imprimatur system that was believed to have been the exclusive preserve of 20th century dictatorships .

But, in reality, this conclusion cannot be limited to Belgium alone. By its general scope and because it is fully consistent with the consistent case law of the ECHR, this judgment can and must be invoked before all the courts of the signatory countries of the said Convention.

So, do not hesitate for a moment to circulate this information around you, and to communicate it in particular to those whose freedom of expression is currently most exposed: the free and independent press, healthcare workers, active citizens who wish to denounce the excesses of the system, etc. Because do not forget: freedom of expression only wears out if we do not use it!

By Thierry Vanderlinden, lawyer and artistic ironworker

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Notes and references

1. This article provides that " everyone has the right to freedom of expression and that this right includes freedom to hold opinions and to receive and impart information and ideas without interference by public authority ." The only possible restrictions on the exercise of fundamental freedoms - including that of expression - must be provided for by law, necessary, useful and limited in time, and be proportionate to the objective pursued, as case law and doctrine consistently affirm.

2. " The freedom to express one's opinions in all matters is guaranteed, except for the repression of crimes committed in the exercise of this freedom ."

3. To be even more precise, the ECHR considers that " the materiality of facts can be proven, while value judgments do not lend themselves to the demonstration of their inaccuracy. It deduces from this that the requirement to demonstrate the truth of a value judgment is unrealizable and therefore infringes freedom of expression ."

4. In this respect, one could deduce that the Court implicitly approves of the management of the health crisis, but it is absolutely not its role to rule on this matter. Let us recall that the Court of Cassation has two very specific missions: to verify whether the rules of procedure have been respected, and whether the law has been correctly applied, which was not the case here.

5. The doxa can even be mocked: by judgment of June 29, 2023, the Brussels Court of Appeal considers that the legal exception of parody authorized the citizen collective "Zone Libre" to distribute flyers entitled " Do I get vaccinated? ", and that this is therefore in no way an infringement of the copyright of AVIQ (Walloon Agency for a Quality Life) which had created a website "Jemevaccine".

6. While the Appeals Council of the Order of Physicians is chaired by a former advisor to the Court of Cassation, and is composed — in addition to doctors — of four presidents of chambers of the Court of Appeal!

7. The examples of non-compliance with the rule of law during the management of the health crisis by public authorities have been legion and would justify an article in themselves.

8. I leave it to psychologists, sociologists and other anthropologists to interpret this need to impose one's point of view: thirst for power, lack of self-confidence...?

9. Article 25: “ The press is free; censorship can never be established.”