The ECtHR's Ruling on Pseudomedical Advice on the Internet

Should protections for freedom of expression in art.10 of the European Convention on Human Rights (ECHR) grant a doctor the legal right to make scientifically proven false and other pseudomedical statements on the internet without also providing medically objective information? The majority of six judges of the European Court of Human Rights (ECtHR or the Court) upheld the Austrian courts’ findings that the answer to that question was an unequivocal "no". However, one ECtHR judge dissented and held that it should. Despite the brevity of analysis (no doubt motivated by the extensive analysis by the domestic courts, including reliance on several expert witnesses, and the fact that the Court found some of the applicant’s statements not only contrary to established science but also "devoid of reason") this case nonetheless raises compelling issues. This judgment is significant because it outlines the Court’s approach to the domestic regulation of professional medical expression made on the internet and to the general public outside of a doctor-patient relationship. This judgment is also significant because it outlines the Court’s approach to adjudicating freedom of expression claims in the post-pandemic era—where the public’s access to reliable and trustworthy health advice from medical professionals in the face of widespread online medical mis- and disinformation is needed more than ever. The ECtHR does not refer to or define medical mis- or disinformation in its judgment; it does, however, describe the problematic expression at issue as "categorical", "untrue", and "scientifically untenable" medical statements. This case note thus refers to these descriptors as "pseudomedical advice".