Criminal proceedings against Frede Damgaard.
Date: 2009-04-02
22. In that regard, it must be stated that, even where it is carried out by an independent third party outside any commercial or industrial activity, advertising of medicinal products is liable to harm public health, the safeguarding of which is the essential aim of Directive 2001/83.
23. It is for the national court to determine whether Mr Damgaard’s actions constituted a form of door-to-door information, canvassing activity or inducement designed to promote the prescription, supply, sale or consumption of Hyben Total.
26. Whilst the principle of freedom of expression is expressly recognised by Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, and constitutes one of the fundamental pillars of a democratic society, it nevertheless follows from the wording of Article 10(2) that freedom of expression is also subject to certain limitations justified by objectives in the public interest, in so far as those derogations are in accordance with the law, motivated by one or more of the legitimate aims under that provision and necessary in a democratic society, that is to say justified by a pressing social need and, in particular, proportionate to the legitimate aim pursued (see Case C‑71/02 Karner  [2004] ECR I‑3025, paragraph 50).
27. It is common ground that the discretion enjoyed by the national authorities in determining the balance to be struck between freedom of expression and the abovementioned objectives varies for each of the goals justifying restrictions on that freedom and depends on the nature of the activities in question. When the exercise of the freedom does not contribute to a discussion of public interest and, in addition, arises in a context in which the Member States have a certain amount of discretion, review is limited to an examination of the reasonableness and proportionality of the interference. This holds true for the commercial use of freedom of expression, particularly in a field as complex and fluctuating as advertising (see Karner , paragraph 51).
28. If the information disseminated on Mr Damgaard’s website, which is at issue in the main proceedings, were to be found to constitute ‘advertising’ for the purposes of Directive 2001/83, his conviction could be considered reasonable and proportionate, in the light of the legitimate aim pursued, namely the protection of public health.
29. In the light of all the foregoing, the answer to the question referred is that Article 86 of Directive 2001/83 is to be interpreted as meaning that dissemination by a third party of information about a medicinal product, including its therapeutic or prophylactic properties, may be regarded as advertising within the meaning of that article, even though the third party in question is acting on his own initiative and completely independently, de jure and de facto, of the manufacturer and the seller of such a medicinal product. It is for the national court to determine whether that dissemination constitutes a form of door-to-door information, canvassing activity or inducement designed to promote the prescription, supply, sale or consumption of medicinal products.
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