Belgium: big win freedom of speech on sanctioned covid critical physician

BAM press reported: A victory for freedom of expression

In a ruling dated 12 December 2024, the Belgian Court of Cassation reiterates a fundamental principle: even in a sensitive debate such as that of health measures or vaccination, freedom of expression also and above all protects opinions that disturb, shock or worry, thus underlining its key role in democratic societies where pluralist debate is essential.

The case concerned an anaesthetist-resuscitator, a member of his hospital's Medical Council, who had published an article critical of the health measures related to the Covid-19 pandemic. This text, published in an online medical journal, had prompted a warning from the Order of Physicians, considering that the article lacked caution and risked discrediting the health authorities.

The matter could have ended there, the warning not being accompanied by real sanctions, but our anesthesiologist-resuscitator does not see it that way and is suing the Order.

The initial disciplinary sanction

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

The argument in cassation

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

The position of the Court of Cassation

In its judgment, the Court of Cassation criticised the approach of the Order of Physicians. 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 benefit from high protection when they contribute to a public debate on issues of general interest.

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

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

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

Similarly, in the Fressoz and Roire v. France judgment in 1999 , the Court defended journalists who had published sensitive information on tax revenues, 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 referral of the case to a differently composed Appeals Council.

This ruling constitutes an important victory for freedom of expression for healthcare professionals, while reminding us that this freedom comes with responsibilities and must be exercised in compliance with medical ethics.

A fundamental reminder

In overturning a disciplinary decision of the Order of Physicians, the Court of Cassation stressed that a disciplinary authority such as the Order cannot impose its own interpretations to discredit value judgments. As the Court so aptly expressed: "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."

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

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

A very embarrassing case law for the Order

Concretely, the Order of Physicians has the possibility of reintroducing disciplinary proceedings against the practitioner concerned, but the arguments on which the procedure was based 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 assert this decision, in particular by invoking the cancellation of their own sanctions. In theory, this could also make it possible to claim compensation for the damages suffered, although the legal feasibility of such steps depends on specific cases and could require in-depth analysis. Furthermore, this decision strengthens the hope for the doctors concerned to restore their reputation and effectively contest the disciplinary measures taken against them. We are thinking 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 many others.

Isabelle Duchateau and Marcan for BAM!

Read the full judgment of the Court of Cassation:

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

Illustration

Photo by Johan Pafenols, Court of Cassation, Brussels Palace of Justice, 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]}