Posted by: euromediablog | August 17, 2009

Don’t Speak! Medical Advertising Ban vs. Free Speech

Advertising  drugs, whose import is nationally prohibited,  is generally not allowed in Europe (§ 86 EU Directive 2001/83/EC). But how is advertising to be defined?

This question  won on relevance after  Frede Damgaard,a Danish journalist, published information on his website about Hyben Total in 2003, a medicine product deprived of  marketing authorisation in Denmark.

According to Danish prosecutors  his positive description of the medicament contravened Directive 2001/83/EC, although it could not be described as classical advertising. Mr. Damgaard appealed, by claiming that he was not doing advertising but  medical journalism. For him the action of the danish authorities constituted thus a severe injury of the freedom of expression.

Soon the case was forwarded to the European Court of Justice, which published its sentence last week. ECoJ’s ruling claims that Article 86 “is to be interpreted as meaning that dissemination by a third party of information about a medicinal product…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…of the manufacturer and the seller of such a medicinal product.”

Some critics look at this sentence as a disastrous way of imposing national censorship on medical journalism. And to some extent they’re right- why should medical journalists not be allowed to report on nationally banned drugs? After all banning opinions on prohibited drugs might be a serious blow to the EU Protections to the  freedom  of expression

May be, instead  of banning all kinds of opinions on particular product, one should think of a better way to distinguish independent journalism from mere marketing strategies. The question is how?

For further information:EATG and AdAge

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