FOURTH SECTION
CASE OF BIELAU v. AUSTRIA
(Application no. 20007/22)
 
 
JUDGMENT
Art 10 • Freedom of expression • Suspended disciplinary fine imposed on practising doctor for making scientifically untenable statements about ineffectiveness of vaccines • Relevant and sufficient reasons • Fair balance struck between competing interests • Sanction proportionate
 
Prepared by the Registry. Does not bind the Court. STRASBOURG
27 August 2024
 
FINAL
 
27/11/2024
 
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Bielau v. Austria,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
 Tim Eicke, President,
 Gabriele Kucsko-Stadlmayer,
 Faris Vehabović,
 Armen Harutyunyan,
 Anja Seibert-Fohr,
 Ana Maria Guerra Martins,
 Sebastian Răduleţu, judges,
and Simeon Petrovski, Deputy Section Registrar,
Having regard to:
the application (no. 20007/22) against the Republic of Austria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Austrian national, Mr Klaus Bielau (“the applicant”), on 13 April 2022;
the decision to give notice to the Austrian Government (“the Government”) of the applicant’s complaint concerning the restriction on the exercise of his right to freedom of expression under Article 10 of the Convention;
the parties’ observations;
Having deliberated in private on 11 June 2024,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The application concerns disciplinary proceedings against the applicant, a practising doctor, for certain statements on his “holistic medicine” website concerning the general ineffectiveness of vaccines. He complained under Article 10 of the Convention that the disciplinary sanction imposed on him had violated his right to freedom of expression. THE FACTS
2. The applicant was born in 1955 and lives in Graz. He was represented by Mr M. Damitner, a lawyer practising in Graz. 3. The Government were represented by their Agent, Mr H. Tichy, Head of the International Law Department at the Federal Ministry for European and International Affairs. 4. The facts of the case may be summarised as follows. 5. The applicant is a general practitioner (Arzt für Allgemeinmedizin) in Styria (Steiermark). He also has a “holistic medicine” (Ganzheitsmedizin) website, on which he describes himself as Dr K. Bielau, practice for self‑healing and homeopathy, author, expert on vaccinations and vaccine damage (Praxis für Selbstheilung und Homöopathie, Autor, Sachverständiger für Impfungen und Impfschäden). 6. On this website the applicant posted the following article on vaccination (Impfen) (status as of 27 June 2016):
“Vaccination
Death by tick ¿????¿¿¿¿????¿
A heretical essay (Ein ketzerischer Essay) – only vaccination really protects! A few weeks ago, there was a report in this country, a headline, a page 1 lead in all the local newspapers, and it even rippled beyond the borders that a girl had died as a result of a tick bite.
1
The reactions were expected and overwhelming. Even in die-hard non-vaccinating families, fears were running high, people who were otherwise rather neutral about these things ran to the vaccinators (Impfärzten); many pharmacies were in danger of running out of vaccines. Satisfied faces were seen on those who were not earning too little from it (or so they say). Vaccination educators and critics (Impf-Aufklärer und -kritiker) were disgraced and shamed, they should be feathered and tarred and sent to prison, these irresponsible agitators (Hetzer) against science; doctors who do not vaccinate should be banned from practising, the internet and TV and round tables (Stammtische) were unanimous ... because only vaccination protects! The tragic death was presented, purely and brightly (blank und pur), as a consequence of not vaccinating – and the majority of people fall for it. So, if you can die from a tick bite, why shouldn’t this girl have died from it?
2
... because with a reasonably realistic, that is to say sensible understanding of nature, we cannot die from the bite of a tick. What we call a virus, literally a poison, is a pathogenic agent (Erreger) of various diseases, a speculation, an assumption, a supposition that is completely unproven (durch nichts bewiesen); a working hypothesis at best. Depending on the circumstances, we can fall ill or die from the bite of a poisonous snake or scorpion; there is no question that we are dealing with a veritable poison. Not so with the non-poisonous tick. This may lead to skin irritation or inflammation as a sign of a physical, healing reaction. Interlude (Intermezzo)
After a conversation with A.S. (head of the science editorial department of the magazine ...), who has since become a friend, I would like to make it quite clear that I am in no way denying the existence of viruses, bacteria and the like – they just, as I said, have a different biological function to that presented in conventional medicine and biology. And further
So what’s the deal with meningitis? Every headache is a more or less mild irritation of the meninges (Gehirnhäute). If I get too much sun, especially in early summer, then I get a headache, sometimes even sunstroke. The body tries to neutralise this excess sun, to get rid of it; there is swelling on the brain, which means there is usually a mild inflammation with heat, pain, weakness, often nausea and vomiting, etc. If this is blocked by our anxious lack of understanding – plus medication or pronounced physical weakness – healing processes in the brain-spinal cord system are hindered, even paralysed. This can possibly lead to the failure of the entire control system, in other words to death. We are therefore familiar with symptoms of meningitis as an attempt to heal. Associating these with a virus as the trigger is completely arbitrary and scientifically untenable (vollkommene Willkür, wissenschaftlich nicht haltbar). Lumbar punctures can sometimes detect antibodies associated with viruses that have also been found in ticks. Nothing more.
3
If we do not understand nature, illnesses appear to be evil accidents of nature (böse Zufälle der Natur). However, if we see them as the body’s efforts to heal which we should not hinder, everything becomes much easier. That’s why: Only vaccination protects! And it really does. Vaccination with an understanding of natural connections, education – and courage to listen to our own hearts, which means courage to listen to our intuition. This is never possible if we are paralysed by the habitual fears born out of a collective lack of understanding.
4
Why can chemical vaccinations never protect against disease? The answer, like everything that makes sense, is simple: we do not fall ill through bacteria and viruses; these are helpers or, in the case of viruses, broken cell nuclei (zerbrochene Zellkerne), that is, metabolic products that are excreted or reincorporated into the body. As simple as the processes in nature are, as long as we remain complicated and fearful, we will not understand the connections and will remain fearful beings, immature victims. Therefore, those who doubt should not stop doubting until we have found what suits us. Doubt is a possibility, like a healing illness, which will lead to recovery if we inform ourselves and examine the issues in question from all sides. It is not for nothing that we are told to test everything and keep what is good. Despair awaits those who lack the courage to have healthy doubt, which will be resolved by the heart and common sense into clear, joyful and cheerful insight; yes, the one view ... it comes from and leads to the eternal laws of nature ... Literature:
J. Fridrich, Vaccination seen through the eyes of the heart (Impfen mit den Augen des Herzens betrachtet)
K. Bielau, A turning point in medicine, Part 1, Part 2 (Wendezeit der Medizin, Teil 1, Teil 2)
A. Zoebel, Read this book before you get vaccinated (Lesen Sie dieses Buch bevor Sie Impfling)
 
Question vaccination at last! Why vaccinate? Vaccination – freezing in fear”
        PROCEEDINGS BEFORE THE DISCIPLINARY COUNCIL
7. On 27 June 2017, following a hearing, the Disciplinary Commission for Styria and Carinthia of the Disciplinary Council (Disziplinarrat) of the Austrian Medical Association (Österreichische Ärztekammer) found the applicant guilty of disciplinary offences under section 136(1)(1) and (2) of the Medical Practitioners Act (Ärztegesetz, see paragraph 16 below). It found that, in the above article on vaccination (see paragraph 6 above), he had made statements (i) denying the existence of pathogenic viruses; (ii) claiming that vaccinations never protected against diseases; (iii) claiming that nature knew no diseases; and (iv) claiming that not a single disease had disappeared through vaccination. The Disciplinary Council based its reasoning on an expert report by Dr G., a university professor and a prominent immunologist, concluding that the statements in question were not in line with the state of science and medical experience. The applicant had presented the risks of health-related preventive measures (die Risiken gesundheitlicher Vorbeugemaβnahmen) in a one-sided and negative manner. Objective information would consider advantages and disadvantages and would not rely on “superficial, unspecified references to other sources of information”. By providing unobjective information, the statements in the applicant’s article on vaccination on his website violated section 53 of the Medical Practitioners Act and paragraph 1 of the Regulation on Medical Practitioners and the Public (see paragraphs 15 and 18 below). Accordingly, the applicant had damaged the reputation of the medical profession under section 136(1)(1) of the Medical Practitioners Act and breached his professional duties under section 136(1)(2) of the same law. Pursuant to section 139(1) and (3) of that law (see paragraph 17 below), the Disciplinary Council fined the applicant 2,000 euros (EUR), suspended pending a probationary period of one year. He was further ordered to pay EUR 1,500 for the costs of the disciplinary proceedings. PROCEEDINGS BEFORE THE DOMESTIC COURTS   Before the Regional Administrative Court

8. On 12 December 2017 the applicant lodged a complaint against the decision of the Disciplinary Council (see paragraph 7 above) with the Styria Regional Administrative Court (Landesverwaltungsgericht), relying on his right to freedom of expression. He submitted that the statements on his website needed to be read in context and that anyone with any sense would understand what he meant. It was a provocative use of words intended to make people think. In his opinion, his website was not directly related to his professional practice and there was nothing untrue or unobjective on it, just unusual and pointed language. With regard to the expert report, he considered that, as a conventional doctor (Schulmediziner), the expert could not help but judge from his own point of view “without any holistic view”. He considered it arbitrary to admit as public opinion only narrow, supposedly scientific findings of academic points of view. 9. On 24 October 2018 the Regional Administrative Court held an oral hearing, in the presence of Dr K., a university professor and a specialist for “medicine, medical and chemical laboratory diagnostics” (Medizin, medizinische und chemische Labordiagnostik), who presented a second expert opinion. The court examined the impugned statements made on the applicant’s website (see paragraph 6 above). His oral submissions at the hearing, in so far as they were reproduced in the court’s subsequent decision, were as follows:
“Bacteria and viruses are not the cause of diseases, that is 100% certain for me. For me, it is not about faith, but about experience and insight. Vaccination has not eradicated or made a single disease disappear ... Nature knows diseases. When I wrote on my homepage that nature knows no illnesses, it was a peppy, provocative formulation to get people thinking. Acute illnesses are cleansing processes, as are chronic ones, of course. But acute ones in particular. The word ‘catarrh’ comes from the Greek and means ‘to flow out’. Our grandparents still referred to coughs and colds as ‘catarrh’. All illnesses are cleansing processes of the organism, body and soul, which can become chronic if they are not understood and suppressed. I do not see myself as primarily called to treat or cure, but to educate in order to enable free choices. Poisoning someone by vaccinating them goes against my ethos. I would not vaccinate anyone, but I would not advise anyone against it either, but would refer them to colleagues who do vaccinate ... I do not disagree with scientific practice, everyone is right. I just have a different point of view, which can also be scientifically substantiated. The question is: what is science? I assume that viruses are not the cause of various diseases. Viruses exist, but they are not pathogens (Krankheitserreger). There is TBE [tick-borne encephalitis], but not as a result of a tick bite ... Medication impedes healing processes in the brain and spinal cord system. The acute symptoms are suppressed. You have to read the homepage as a whole, not just sentence by sentence ... When I am asked why vaccinations are supposed to protect against a disease, I answer: Why should vaccinations protect against disease? I explain that, from a holistic perspective, health and illness are flowing processes that depend on countless factors (psychological, stress, burnout, lack of freedom, coercion, physical resources, nutrition, etc.). Microorganisms in the body are responsible for healing and cleansing processes. Microorganisms are bacteria or fungi, for example pus is always a cleansing process (pus bonum et laudabile). If the body is strong enough, it carries out an expulsion by itself, otherwise you have to help (for example cutting open ulcers, etc.) ...”
10. On 12 November 2018 the Regional Administrative Court dismissed the applicant’s complaint as unfounded. It quoted extensively from the statements made on the applicant’s website on vaccination and the oral submissions made during the hearing (see paragraphs 6 and 9 above). In its detailed decision, the Regional Administrative Court referred to medical facts established by the WHO, the concurring opinions of both experts, all the applicable provisions of domestic law and the case-law of the Supreme Administrative Court, according to which the restriction of freedom of expression of doctors served the protection of health, as patients should be able to trust that doctors, in the exercise of their profession, complied with their professional duties. The trustworthiness of doctors could be jeopardised if they unequivocally stated in their publications, lectures and other public statements that they would not administer the vaccinations required according to the state of medical science in a specific treatment or advised their patients against such vaccinations without informing them of different opinions. Furthermore, the authorities had to be able to rely on the trustworthiness of doctors in the exercise of their profession because complete control was not possible. Non-professional behaviour could therefore also indicate that doctors could not be trusted to provide careful patient care. The Regional Administrative Court further referred to Article 10 of the Convention, the relevant case-law of the Court and to academic literature. It examined the impugned statements (see paragraph 6 above) one by one and found, as the experts had formulated, that they were not in line with the current state of medical science, some of them (for example the claim that nature knew no diseases) not even in line with reason (entspricht nicht dem heutigen Stand der Wissenschaft oder gar der Vernunft). The applicant had dealt with the issue of vaccination in a purely one-sided and negative manner. Referring to tick-borne infections, like Lyme disease and tick-borne encephalitis, as well as hepatitis B and C (the latter showing that a disease was not a cleansing process), the court held that, according to the current state of science, a specific vaccination protected against a particular disease to a very high percentage. In any event, information about the risk, frequency and seriousness of the consequences of medical intervention or prevention would always have to be provided in the light of the damage to be prevented. The Regional Administrative Court emphasised that it was part of the medical duty of care to provide information to persons under one’s care in a professional manner, including information about the risk, frequency and severity of the consequences of the medical intervention or precautionary measure, taking into consideration the harm to be prevented. It was a violation of the principles of evidence-based medicine to advise against vaccinations without a contraindication in a personal consultation and could call into question professional trustworthiness. Since a protective vaccination represented an interference with the fundamental right to physical integrity, a patient’s consent had to be obtained beforehand. For this very reason, professionally sound medical information from doctors was the basis for a positive or negative decision with regard to protective vaccination, especially because of possible (contra-)indications, which medical laypersons were usually unable to weigh up for themselves. The Regional Administrative Court referred to section 53(1) of the Medical Practitioners Act (see paragraph 15 below), which prohibited doctors from providing unobjective and untrue information in connection with the exercise of their profession, and to paragraph 1 of the Regulation on Medical Practitioners and the Public (see paragraph 18 below), which prohibited doctors from providing any information that was unobjective, untrue or detrimental to the reputation of the medical profession. It concluded that the applicant’s statements on vaccination on his website had the potential to damage the reputation of doctors practising in Austria and breached the professional duties he had undertaken to observe. The applicant had consequently breached section 136(1)(1) and (2) in conjunction with section 53(1) of the Medical Practitioners Act and paragraph 1 of the Regulation on Medical Practitioners and the Public (see paragraphs 15-16 and 18 below). These provisions provided for a restriction of freedom of expression which was permissible for the protection of health. As regards the amount of the fine, the Regional Administrative Court noted that, according to the applicant’s own statements, he had a monthly income of EUR 1,200, was responsible for the care (sorgepflichtig) of two minor children and owned a house and several apartments. The court considered these statements implausible (unglaubwürdig), as a doctor with his or her own medical practice was expected to have a monthly income of at least EUR 3,000. It accordingly upheld the fine of EUR 2,000 imposed on the applicant, suspended pending a probationary period of one year. Before the Constitutional Court
11. On 29 January 2019 the applicant lodged a complaint with the Constitutional Court (Verfassungsgerichtshof), alleging a violation of his right to freedom of expression. 12. On 18 June 2019 the Constitutional Court declined to deal with the applicant’s complaint on the grounds that the legal issues raised did not require specific constitutional consideration. It referred the decision to the Supreme Administrative Court (see paragraph 14 below). Before the Supreme Administrative Court
13. On 7 August 2019 the applicant lodged an extraordinary appeal (ausserordentliche Revision) with the Supreme Administrative Court (Verwaltungsgerichtshof). He again relied on his right to freedom of expression and submitted, inter alia, that the Regional Administrative Court had applied the law in an unconceivable manner (denkunmöglich) in its decision (see paragraph 10 above) and that section 53 of the Medical Practitioners Act in conjunction with paragraph 2 of the Regulation on Medical Practitioners and the Public (see paragraphs 15 and 18 below) was a form of advertising restriction. The statements on his website had however been the expression of his opinion as an author and not as a doctor advertising his services. His statements had not been intended to attract new patients, but rather to give the general public information concerning vaccinations so that they could form their own opinions and make free decisions. They had also not been made in the exercise of his profession, which was required by section 53(1) of the Medical Practitioners Act (see paragraph 15 below). He also denied that he had disseminated unobjective or untrue information or information that was detrimental to the reputation of the medical profession. 14. On 28 October 2021 the Supreme Administrative Court dismissed the applicant’s appeal as inadmissible. In its detailed reasoning, the court, referring to its previous case-law (see paragraph 10 above, as well as the decision summarised in paragraph 19 below), essentially stated that a breach, through certain statements, of the duty set out in the Regulation on Medical Practitioners and the Public (see paragraph 18 below) to provide purely objective and true information and information that was not detrimental to the reputation of the medical profession could, in principle, constitute professional misconduct within the meaning of section 136(1) of the Medical Practitioners Act (see paragraph 16 below). It reiterated that section 53(1) of the Medical Practitioners Act (see paragraph 15 below) required that the statements or information in question be made or provided by a doctor “in connection with the exercise of his or her profession”. In the case of a practising doctor’s website, there was no doubt that a connection with the medical profession existed, as the website was obviously (also) designed to draw attention to his or her medical practice and therefore served advertising purposes. The applicant’s statements clearly served the purpose of highlighting his own treatment methods for advertising purposes. According to the expert report by Dr K., the applicant’s impugned statements were not in line with the current state of medical science, some not even in line with reason (see paragraph 10 above). In the light of this, the Supreme Administrative Court had no concerns about the Regional Administrative Court’s assessment that the applicant had damaged the reputation of the medical profession by providing unobjective information for advertising purposes in violation of section 53(1) of the Medical Practitioners Act and the Regulation on Medical Practitioners and the Public in conjunction with section 136(1)(1) of the Medical Practitioners Act (see paragraphs 15, 16 and 18 below). In addition, the Supreme Administrative Court upheld the Regional Administrative Court’s finding that the applicant had – by one and the same act (Idealkonkurrenz) – also committed the offence of breach of professional duties under section 136(1)(2) of the Medical Practitioners Act, since his website had not only been designed for advertising purposes in order to attract new patients, but had obviously also been a source of information and advertising for existing patients. As regards the right to freedom of expression under Article 10 of the Convention, the Supreme Administrative Court held that section 53(1) of the Medical Practitioners Act and the Regulation on Medical Practitioners and the Public (see paragraphs 15 and 18 below) regulated restrictions on advertising for the medical profession. The prohibition – by paragraph 1 of that Regulation – of information which was unobjective, untrue or detrimental to the reputation of the medical profession was in the interests of the medical profession and the general public so that they could be guided by objective considerations when using medical services. In this context, the Supreme Administrative Court also referred to the Court’s statements on the principle of proportionality in the Grand Chamber judgment Vavřička and Others v. the Czech Republic ([GC], nos. 47621/13 and 5 others, 8 April 2021). On the basis of the information on vaccination posted by the applicant on his website, which was at least unobjective, and in view of the relatively low fine, the Supreme Administrative Court concluded that the restriction of the applicant’s right to freedom of expression resulting from the disciplinary sanction could not be regarded as disproportionate, in view of the aim set out in Article 10 § 2 of the Convention. RELEVANT LEGAL FRAMEWORK AND PRACTICE        DOMESTIC LEGAL PROVISIONS   The Medical Practitioners Act (Ärztegesetz)

15. Section 53 of the Federal Act on the Exercise of the Medical Profession and the Professional Representation of Medical Practitioners (“the Medical Practitioners Act” – Bundesgesetz über die Ausübung des ärztlichen Berufes and die Standesvertretung der Ärzte, Ärztegesetz) relates to restrictions on advertising for the medical profession and reads, in so far as relevant, as follows:
“(1)  A doctor shall refrain from providing any information in connection with the exercise of his or her profession which is unobjective [unsachlich], untrue [unwahr] or prejudicial to the reputation of his or her profession [das Standesansehen beeinträchtigend].
... (4)  The Austrian Medical Association may issue more detailed regulations on the type and form of the information referred to in paragraph 1.”
16. Section 136 concerns disciplinary offences and reads, in so far as relevant, as follows:
“(1)  Doctors are guilty of a disciplinary offence if, in Austria or abroad, they
1.  damage the reputation [Ansehen] of the medical profession practising in Austria by their conduct towards the community, patients or colleagues, or
2.  breach the professional duties [Berufspflichten] which they undertook to observe on the occasion of their doctorate as doctor medicinae universae or which they are obliged to observe under this Federal Act or under other regulations.”
17. Section 139 lists the disciplinary sanctions possible and reads, in so far as relevant, as follows:
“(1)  Disciplinary sanctions are
1.  a written reprimand,
2.  a fine of up to 36,340 euros,
3.  a temporary ban on practising,
4.  removal from the list of doctors.
... (3)  The disciplinary sanctions may be imposed conditionally, with a probationary period of one to three years, if it can be assumed that the threat of such sanctions will be sufficient to deter the accused from committing further disciplinary offences and that enforcement of the sanction is not necessary to discourage the commission of disciplinary offences by other doctors.”
   The Regulation on Medical Practitioners and the Public (Verordnung Arzt und Öffentlichkeit)
18. The Regulation of the Austrian Medical Association on the nature and form of permissible medical information in public (“the Regulation on Medical Practitioners and the Public” – Verordnung der Österreichischen Ärztekammer über die Art und Form zulässiger ärztlicher Informationen in der Öffentlichkeit, Verordnung Arzt und Öffentlichkeit) was adopted by the plenary of the Medical Association on 27 June 2014 in accordance with section 53(4) of the Medical Practitioners Act (see paragraph 15 above). It reads, in so far as relevant, as follows:
“1. A doctor is prohibited from providing any information that is unobjective, untrue or detrimental to the reputation of the medical profession. 2. (1)  Medical information is unobjective if it contradicts scientific knowledge or medical experience. (2)  Information is untrue if it does not correspond to the facts. (3)  Information is deemed to be damaging to the reputation of the medical profession if it consists of
1.  disparaging statements about doctors, their activities and their medical methods;
2.  portrayal of untruthful medical exclusivity;
3.  self-promotion [Selbstanpreisung] or services by means of intrusive and/or blatant advertising. 3. Advertising for medicinal products, remedies and other medical products and for their manufacturers and distributors is not permitted. It is permissible to provide factual and truthful information on medicinal products, remedies and other medical products and on their manufacturers and distributors in the exercise of the medical profession that does not damage the reputation of the medical profession.”
      DOMESTIC CASE-LAW OF THE SUPREME ADMINISTRATIVE COURT
19. As submitted by the Government, in a decision of 29 October 2019 (Ra 2019/09/0010), the Supreme Administrative Court annulled a disciplinary sanction imposed on a doctor in relation to a presentation he had made to an audience of mainly young parents. Whereas it was true that the doctor had presented the disadvantages and dangers of vaccination in a unilateral, unobjective and untrue manner, it had however been evident to the audience that the opinion expressed by him had been an unrecognised minority opinion, not shared but rejected by the majority of experts and the health authorities. Besides declaring himself to be a critic of vaccinations at the beginning of his presentation, the doctor had also referred to (other) general practitioners and pharmacies for positive information on vaccination. In the view of the Supreme Administrative Court, the restriction of the freedom of expression of the doctor concerned had not been necessary for the pursuit of one of the legitimate aims under Article 10 § 2 of the Convention in the sense of a pressing social need, in particular the protection of health. The court nevertheless indicated that a doctor’s extraprofessional conduct (auβerberufliches Verhalten) could however also constitute a breach of general professional duties under section 136(1) of the Medical Practitioners Act, as doctors had to ensure that their professional reputation was upheld in all their conduct, including outside the exercise of their profession. Furthermore, statements on medical methods could also fall under the advertising restrictions imposed on doctors. Consequently, the professional duties under section 136 of the Medical Practitioners Act included both doctors’ conduct in the exercise of their profession and their extraprofessional conduct. As regards section 53(1) of the Medical Practitioners Act (see paragraph 15 above), the court further held that it only concerned information provided by a doctor “in connection with the exercise of his or her profession” (im Zusammenhang mit der Ausübung seines Berufes), and that doctors were only obliged to provide comprehensive advice and information to the patients in their care. 20. In a decision of 22 March 2023 (Ra 2021/09/0269), the Supreme Administrative Court referred to the case-law of the Constitutional Court according to which there were no constitutional objections to the disciplinary law of doctors and it was justified in the public interest to subject advertising by certain professional groups, including lawyers and doctors, to restrictions. The prohibition of information which was unobjective, untrue or detrimental to the professional reputation of the medical profession, as laid down in section 53 of the Medical Practitioners Act (see paragraph 15 above), was in the interests of the medical profession and the general public so that they could be guided by objective considerations when using medical services. The Supreme Administrative Court further reiterated its case-law according to which interference with freedom of expression in the form of a disciplinary sanction was to be measured against the standard of Article 10 of the Convention. Doctors also had to be able to participate in public debates on health policy issues and to express factual criticism, especially as they had a higher level of expertise. It was to be emphasised, however, that a stricter standard had to be applied when assessing the “proportionality of [a sanction in relation to] statements made by doctors, in particular to protect public trust in the seriousness of professional practice and expertise. Statements which were even devoid of reason were in no way covered by the freedom of expression”. In the case at hand, the statements at issue had been made in the context of a controversial discussion on which preventive measures the State should take in connection with the COVID-19 pandemic and on the introduction of compulsory vaccination against COVID-19. The doctor concerned had clearly wanted to contribute to this public debate, as he had made the statement during a press conference and in a newspaper interview, rather than in the context of educational talks with patients. Furthermore, he had not rejected all government measures to combat the spread of COVID-19, but had propagated a differentiated view, for example on the use of protective masks. He also had not rejected vaccination against COVID-19 as dangerous in general. The focus had not been on the safety of the vaccination. Rather, he was primarily opposed to “forced vaccination” (Zwangsimpfung). He had clearly been concerned with critically questioning the COVID-19 vaccination obligation in Austria and the general obligation to wear masks, in particular the use of self-sewn fabric masks envisaged at the time. The court found that restricting his freedom of expression in the form of a disciplinary sanction was disproportionate in view of Article 10 § 2 of the Convention. THE LAW         ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION

21. The applicant complained of a restriction of his right to freedom of expression on account of the disciplinary sanction imposed on him. He relied on Article 10 of the Convention, which reads as follows:
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority ... 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, ... for the protection of health ..., for the protection of the reputation or rights of others ...”
   Admissibility
22. The Government did not raise any objection as to the admissibility of the application. 23. The Court notes that the application is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. Merits     The parties’ submissions   The applicant

24. The applicant submitted that the domestic courts had failed to recognise that the legal requirements for a disciplinary offence under section 136(1)(1) and (2) of the Medical Practitioners Act (see paragraph 16 above) had not been met. Furthermore, these provisions, as well as section 53 of the Medical Practitioners Act, read in conjunction with paragraph 2 of the Regulation on Medical Practitioners and the Public were not applicable to the present circumstances because articles and statements posted on a doctor’s website could not be regarded as advertising by a doctor. Only a measure capable of attracting new patients for treatment could be regarded as advertising. There had consequently been an unconceivable (denkunmöglich) application of the law. 25. The applicant further maintained that the right to freedom of expression also protected stressing a specific aspect related to vaccinations, namely their risks. If every doctor had to remain within the inflexible boundaries of conventional medicine in all of his or her public statements, any diversity of opinion concerning alternative medical treatment options would be lost and a significant part of the population would not consult a doctor. The exercise of his right to freedom of expression therefore served the legitimate interests of the general public, namely the part of the population interested in alternative treatment options. Even if the impugned statements on his website were not in line with conventional medical science, or could have been perceived as offensive, shocking or disturbing by the State or part of the population, there were a number of scientific publications supporting the content. They were therefore justifiable and could not lead to disciplinary measures, at least in so far as they did not damage the reputation of the medical profession and did not breach professional duties if they had not been made in the exercise of his profession. 26. The applicant agreed that within a democratic society, it was reasonable to impose special obligations (and restrictions) on doctors and medical professionals due to their position as medical advisers. Such obligations were suitable for establishing a solid relationship of trust between doctors and their patients. Restrictions of the right to freedom of expression could be proportionate to the legitimate aim of preventing other individuals from being restricted in their own right to freedom of expression. In the present case, however, there had been no such legitimate purpose, nor had the restriction of his right to freedom of expression been proportionate. The Government
27. The Government admitted that the disciplinary sanction in question had constituted an interference with the applicant’s right to freedom of expression which had however been justified under Article 10 § 2 of the Convention. Disciplinary sanctions under section 139(1) of the Medical Practitioners Act (see paragraph 17 above) could only be imposed under strict conditions which, according to the case-law of the Supreme Administrative Court (see paragraphs 19-20 above), had to be interpreted narrowly in view of the Convention guarantees. The relevant provisions referred to in the applicant’s case (see paragraphs 15-16 and 18 above) did not restrict doctors from participating in public debates on health policy issues in their professional capacity and from voicing criticism, provided that they declared this to be a minority opinion, where appropriate, and referred to information on contrasting opinions. The applicant’s statements on the website of his medical practice were not such objective criticism, but rather the dissemination of unobjective or unfounded information which had, inter alia, been provided for advertising purposes. Using section 136(1)(1) and (2) of the Medical Practitioners Act (see paragraph 16 above) as the legal basis for the disciplinary sanction had therefore been in line with domestic case-law. 28. The Government further argued that the disciplinary sanction had pursued a legitimate aim under Article 10 § 2 of the Convention as it had been necessary for the protection of public health and in the interests of the general public so that they could be guided by objective considerations when seeking medical services. There was no doubt that there should be room for critical opinion on the issue of vaccination and for views other than those of conventional medicine. It was however necessary to set limits to purely one‑sided and medically clearly refuted allegations for the protection of public health and the reputation of the medical profession, which ensured the trust of the general public in medical practice and expertise. 29. Lastly, the Government insisted that the interference had been proportionate. First, the applicant, in his statements, had challenged, among other things, vaccinations per se. The Court had however already held that there was a general consensus among the Contracting Parties, strongly supported by the specialised international bodies, that vaccination was one of the most successful and cost-effective health interventions and that each State should aim to achieve the highest possible level of vaccination among its population (reference was made to Vavřička and Others v. the Czech Republic [GC], nos. 47621/13 and 5 others, § 277, 8 April 2021). The interest in protecting public health clearly outweighed an individual’s right to disseminate unobjective or even wrong information, as in the present case, where a doctor, in connection with his professional practice, had disseminated information which had been proven to be untrue, presented in a non‑differentiating manner and liable to generally unsettle patients and the general public. Secondly, the disciplinary sanction had not been imposed because of the applicant’s statements as such, but because of their presentation on his website, which he had clearly been operating as a medical practitioner and had therefore been subject to the rules of conduct of the medical profession. Thirdly, in view of the prescribed scale of sanctions (see paragraph 17 above), the relatively low fine did not seem unreasonable, not least because the applicant had been granted a conditional suspension. The Court’s assessment   General principles established in the Court’s case-law      On freedom of expression in general

30. In order to determine whether Article 10 of the Convention was infringed it must first be ascertained whether the disputed measure amounted to an interference with the exercise of freedom of expression, in the form of a “formality, condition, restriction or penalty” (see Wille v. Liechtenstein [GC], no. 28396/95, § 43, ECHR 1999-VII). Such interference will breach the Convention if it fails to satisfy the criteria set out in the second paragraph of Article 10.

Article of the Convention at issue: Article 10
Outcome: no_violation