Cour de Justice [Court of Appeal]
Case Postale 3108
Pascal DIETHELM and Jean-Charles RIELLE, both represented by Christian PIRKER and Charles PONCET, attorneys-at-law; address for service: Offices of Christian PIRKER, attorney-at-law, place du Molard 7, case postale 3534, 1211 Geneva 3; appellants from a judgement of the Tribunal de police [Criminal Court of first instance] of 24 May 2002,
PUBLIC PROSECUTOR of the Republic and Canton of Geneva, Offices of
the Public Prosecutor, Palais de Justice, place du
RYLANDER, represented by David BITTON and Michel HALPERIN, attorneys-at-law;
address for service: Offices of Michel HALPERIN, attorney-at-law, avenue Léon-Gaud 5, 1206
Notice of the present decision is given to the parties on
By judgement of
24 May 2002, notified on the same day, the Tribunal
de police found Jean-Charles Rielle and Pascal
At the hearing of
The prosecution and the civil claimant moved to have the judgement affirmed and to be awarded costs and legal fees. The civil claimant further requested that the judgement be published on the Internet and in major Swiss newspapers.
C. The file shows the following pertinent facts:
a. On 29 March 2001, Jean-Charles Rielle and
environmental physician, former researcher and lecturer at various institutes
and universities, notably the Universities of Stockholm, Göteborg
b. The numerous exhibits
produced by Jean-Charles Rielle and Pascal
In the early 1970s
Philip Morris purchased Infibo (Institut für industrielle
und biologische Forschung),
a laboratory located in
In July 1972 Infibo was the subject of discussions between Philip Morris
and Ragnar Rylander. Philip Morris was in fact interested in
having Ragnar Rylander as
its part-time representative in
c. A symposium on the
effects of tobacco smoke on non-smokers, organised by Ragnar
Rylander, was held in
Preparing the publication
of a brochure setting out the various issues discussed at the conference, on
The brochure was
finally published during 1974. It
contained a mention that the
"It is my opinion that healthy non-smokers exposed to typical levels of environmental tobacco smoke run no substantial risk of thereby developing chronic pulmonary diseases. Furthermore, I do not believe CO generated by cigarettes presents any kind of major health danger to exposed non-smokers."
Raymond Fagan also
pointed out that if additional persons were to sign the article, "my"
should be replaced by "our".
d. In 1981 Ragnar Rylander was put in charge
of organising a second conference on environmental tobacco smoke. In a memorandum of
In a letter of 30 March 1984 to the president of the Tobacco Institute, the president of R.J. Reynolds Tobacco – expressing regret that the tobacco industry had never set up a programme to counter the ever-growing belief that passive smoking was harmful – cited the "Rylander symposium" as one of the new tools useful in combating the recognition of the harmfulness of passive smoking.
A short document distributed on 26 March 1992 to the participants in a meeting of the Association des épidémiologistes de langue française (ADELF) [Association of French-speaking epidemiologists] and bearing the names of Ragnar Rylander and Ysabelle Mégevand, indicated that preliminary results had enabled them to find a correlation between passive smoking in children and the frequency of bronchitis; other correlations were becoming apparent, too, in particular between a tendency to cough and the consumption of green vegetables. From 17 to 20 May of the same year, Ragnar Rylander took part in an international conference of the American Thoracic Society (ATS). Reporting to it on respiratory illness in children and environmental factors, he affirmed that no relation had been found between exposure to environmental tobacco smoke and respiratory diseases, but that a strong negative correlation had been found for the diet factors eggs and chicken meat.
1997 Ragnar Rylander was
invited by FTR to work with Dr Thorn on developing a joint project on the
"sick building syndrome" and a proposal to meet Dr Thorn and two FTR
representatives was put forward. Some
days later Ragnar Rylander
wrote to Richard Carchman, vice-president of the
Philip Morris research centre in
"A few days ago I received the attached letter from Ted. Whilst
I will help out as much as possible, I see a potential conflict in the task. Throughout
the years I have always been very strict to report to
g. In an internal
According to a
Philip Morris internal memorandum of
Under the 1999 budget, set out in a confidential Philip Morris document of July 1998, several consultants were to be paid USD 15,000 and others USD 20,000, 40,000, 50,000, 60,000 or 75,000: those receiving the highest amounts were Ragnar Rylander (USD 92,500) and HRW Associates (USD 325,000). The three persons working for Philip Morris full time were to be paid USD 116,800, USD 127,700 and USD 276,300 respectively.
h. Before the Tribunal de police Jean-Charles Rielle and Pascal
were heard. One of them was André Rougemont, director of the Institut de médecine sociale
et préventive at the
Faculty of Medicine of the
Chung-Yol Lee, physician and author of a report on smoking for the WHO, explained that it was by consulting Internet sites accessible to the general public, in the wake of various lawsuits brought against the tobacco industry in the United States, that he learned that Ragnar Rylander had received substantial amounts of money for the purpose of contacting researchers and organising seminars in order to promote the tobacco industry. He also indicated how cigarette manufacturers organised scientific gatherings presenting views favourable to the tobacco industry.
Theodor Abelin, physician, vice-president of the Commission fédérale pour la prévention du tabagisme [Swiss Federal Commission for the prevention of smoking] affirmed that Ragnar Rylander was aware of studies conducted in the 1980s and 1990s that had found the effect of poor eating habits on the development of cancer to be weak compared with that of passive smoking, but had never reported those findings in his various publications. Nor had he given a full explanation regarding the funds he had received.
Concerning Ragnar Rylander's letter of 2 November 1991, Hubert Varronier, physician and one-time chairman of the Commission "Santé et Environnement" ["Health and Environment" Commission] set up by the Département de l'action sociale et de la santé [Department for Social Work and Health], explained that an epidemiological study was based on criteria laid down by the experts in charge of that particular study; strict compliance with those criteria for the entire duration of the study was absolutely indispensable for the results to be analysed; modifying a pre-defined method in the course of the study amounted to manipulation.
Thomas Zeltner, physician and jurist, director of the Office fédéral de la santé publique [Swiss Federal Office for Public Health], stated that transparency was the key element of scientific research. As long as the general public knew that a study was co-financed by the tobacco industry, neither the researcher nor the study was discredited. On the other hand, lack of transparency could lead to confusion.
Richard Carchman affirmed that he had never asked Ragnar Rylander to carry out research favouring the tobacco industry. There had been no discussions on whether his research would be favourable to it. On the contrary, had Philip Morris noted that Ragnar Rylander's objective was to please the tobacco industry, it would not have engaged his services or paid for them.
William Farone, former director of applied research at Philip Morris, indicated that he had known of a direct link between passive smoking and cancer since 1965; Philip Morris had been aware of this correlation since 1976 at least. He stated that research done by Inbifo was forwarded to Philip Morris in an extremely confidential manner – in most cases orally, except for a few memoranda – via Ragnar Rylander and Thomas Osdene.
i. Jean-Charles Rielle was born on
1. The appeal is admissible, having been filed in the form and within the time period prescribed by law (art. 241 and 242 CPP [Code de procédure pénale = Code of Criminal Procedure]).
2. a. Under art. 173(1) CP, anyone who, addressing a third party, accuses a person of or casts suspicion on him for dishonourable conduct or any other fact likely to lower the esteem in which that person is held, or anyone who disseminates such an accusation or suspicion shall, upon complaint, be punished by imprisonment of up to six months or a fine. The accused shall not be punished if he proves that the allegations uttered or disseminated by him are true or that, acting in good faith, he had valid reasons to believe them to be true (art. 173(2) CP).
Article 173 CP safeguards a person's respectability, i.e. the possibility of behaving in the way a respectable person usually does according to generally accepted notions. The contested statements must therefore expose the targeted person to contempt; it is not enough for them to lower the person in his own esteem or with regard to qualities he believes to possess, notably in his professional, artistic, political and other activities; consequently, assertions which, without making the person appear contemptible, are only likely to tarnish his reputation in the eyes of those around him or to shake his self-confidence by criticising him as a professional, artist, politician, etc. are not punishable (ATF [Arrêt du Tribunal fédéral = decision of the Federal Supreme Court] 119 IV 44 point 2a and decisions cited).
In order to determine whether a statement is detrimental to a person's honour, one must base oneself not on the meaning that the targeted person reads into it, but on an objective interpretation derived from the meaning that an unbiased person should attribute to it in the specific circumstances (ATF 121 IV 76 point 2a/bb = JdT [Journal des Tribunaux = Court Reports] 1997 IV 75; 119 IV 44 point 2a). A written statement must be analysed not only in the light of each expression taken separately but also on the basis of the overall meaning emerging from the text as a whole. It is not unusual for an accumulation of details that appear insignificant when considered individually to result in a detestable general picture.
The punishable act may consist in making accusations against a person, i.e. affirming facts that cause the person to be held in contempt, in casting suspicion on that person about such facts, or in disseminating such an accusation or suspicion, even when one cites the source thereof or claims not to believe it (ATF 117 IV 27 point 2c and references cited). The offence may be realised through any form of expression: orally, in writing, by picture or gesture, or by any other means (art. 176 CP).
Defamation presupposes a factual allegation and not a mere value judgement (ATF 117 IV 27 point 2c and case cited). However, should any facts have been alleged in support of a value judgement, these facts may constitute defamation (ATF 121 IV 76 point 2a/bb = JdT 1997 IV 75).
From a subjective point of view, it is sufficient for the author to have known that his remarks were of a nature to impugn a person's honour and to have made them nonetheless; it is not necessary for him to have had the intention of hurting the person targeted (ATF 119 IV 44 point 3a and cases cited).
b. In the case in point, the statements denouncing the respondent as being responsible for an "unprecedented scientific fraud", being "secretly employed" by a cigarette manufacturer and "one of its most highly paid consultants", make him appear as contemptible and his conduct contrary to that of a respectable and honourable man, and especially of a respectable scientist. This feeling is moreover strengthened by the appellants' calls for an inquiry and for administrative sanctions against the respondent.
The appellants have therefore made defamatory statements about the respondent. Furthermore, they could not have been unaware of the defamatory nature of their allegations.
3. It should be determined whether the appellants have succeeded in bringing proof that would exempt them from punishment (art. 173(2) CP).
In this respect, it will be noted that the appellants have waived the second possibility provided for by art. 173(2) CP, namely the good-faith defence, and that they have invoked only that pertaining to truth.
The Tribunal de police was therefore right not to examine whether the appellants should be allowed to present evidence of their good faith; it is thus inappropriate for them to criticise the judgement on that point, since they had asked the Tribunal not to examine it.
a. Under art. 173(2) CP, the accused is not punishable if he demonstrates that the allegations uttered or disseminated are true or that, acting in good faith, he had valid reasons to believe them to be true.
The burden of proof is on the author of the defamatory remarks. He has the choice of proving either the veracity of the statements or his good faith in believing them to be true. Where one of the arguments has been proven, the accused must be acquitted (ATF 119 IV 44 point 3). He can even produce elements of proof that were unknown to him at the time when the remarks were made; the only pertinent question is the veracity of the statements (ATF 124 IV 149 point 3a). The evidence must be material to the disparaging fact that has been alleged, hinted at or disseminated; if the statements at issue contain both a value judgement and a factual allegation, the proof should relate to the facts behind the value judgement (ATF 121 IV 76 point 2a/bb = JdT 1997 IV 75).
b. In the present case, it should be examined whether the appellants have proven that the three allegations held to be defamatory are true.
Concerning the allegation that the respondent was "secretly employed by Philip Morris", exhibits show that he had entered into a consulting agreement with Philip Morris in 1972 and that he had not made this fact public. Indeed, the "Thorn" episode, which took place in 1977, shows that the respondent did everything not to let his ties to Philip Morris become publicly known in order to, in his own words, "retain as far as possible the image as an independent scientist". In addition, following the publication of an article in the "European Journal of Public Health", he attempted to conceal the existence of a formal contract with Philip Morris, and this led the journal's Committee on Publication Ethics to take an unfavourable decision in his regard.
The Tribunal de police therefore rightly considered this fact as proven.
As regards the allegation that the respondent was "one of Philip Morris's most highly paid consultants", it should not be forgotten that the work he carried out in connection with smoking represented only 10% of his research and publications; this is important in determining whether the amounts he received from the tobacco industry are high. Several documents show the respondent to be among Philip Morris's most highly paid consultants, not counting FTR, a subsidiary of Philip Morris, the American Health Foundation and HRW Associates, none of them physical persons. It is therefore true that the respondent was one of Philip Morris's most highly paid consultants. The sums he received – fees amounting sometimes to USD 85,000 a year, plus the funds received for various research activities – were substantial, especially in view of the fact that the respondent devoted no more than 10% of his activities to research dealing with the effects of smoking.
The fact that the respondent was one of Philip Morris's most highly paid consultants has therefore been proven.
Finally, as regards the allegation that the respondent is responsible for an "unprecedented scientific fraud", the Court wishes to point out first of all that the press release at issue does not use the term "responsibility" as such. It merely highlights the respondent's conduct as being part of the unprecedented scientific fraud described by the appellants.
respondent has had frequent contacts with Philip Morris for many years. These contacts are troubling for several
reasons. In 1991, within the framework
of a study on respiratory diseases in children, the respondent modified a data
base so that no link could be made between passive smoking and the frequency of
respiratory infections. At an
international conference in May 1992 he affirmed that no relation had been
found between respiratory infections in children and their exposure to smoke
but that there was a strong negative correlation with the consumption of eggs
and chicken meat; two months earlier, however, he had agreed to have his name
on a document distributed to participants in a meeting of epidemiologists and
indicating that a correlation had been found between passive smoking and the
frequency of bronchitis in children. In
1997, the respondent expressed his unease about meeting a scientist together
with FTR representatives, for until then he had made every effort not to be
seen by people from outside Philip Morris in the presence of the latter's
executives so as to "retain as far as possible the image as an independent
scientist"; such a remark implies that the respondent was precisely not an
independent scientist. Moreover, the
correspondence exchanged by Philip Morris representatives and the respondent
before and after the conferences he organised, notably on the subject of
invitations, reports to be submitted to participants and summaries to be
published, seriously calls into question his independence vis-à-vis Philip
Morris. In this respect, the testimony
of Richard Carchman, vice-president of the Philip
Morris research centre in
The above elements show that the respondent did not hesitate to deceive the general public in order to show himself favourable to the tobacco company that was paying him. In particular, the study on respiratory diseases in children in which he altered the data base so that no link could be made between passive smoking and the frequency of respiratory infections, appears fraudulent. Nevertheless, the terms used by the appellants go far beyond the truth. They actually give the impression that the respondent's whole career was nothing but a vast deception. This kind of exaggerated statements cannot be tolerated.
Therefore, the Court does not find that the respondent's participation in an uprecedented fraud has been proven.
As noted in point 3 above, the Court does not need to examine the question of the appellants' good faith since they expressly refrained from invoking that line of defence. In any case, given the exaggerated character of the statements, it is difficult to accept that the appellants had good reason to believe their allegations to be true, all the more so since it is impossible to know whether the documents they produced in the present procedure were known to them at the time the contested press release was published.
In view of the above, the guilty verdict on the charge of defamation is upheld.
4. With regard to art. 32 CP invoked by the appellants, it should be recalled that even though they are active in the prevention of smoking, their position did not authorise them to use defamatory statements contained in the press release of 29 March 2001, since those statements exceed simple information.
5. Since only one statement has been found to be defamatory, it is justified to reduce to CHF 1,000 the amount of the fine to which each appellant was condemned.
6. In so far as their appeal has failed to a large extent, the appellants shall bear the costs thereof. However, in determining the amount of the fee, account will be taken of the point on which they have prevailed.
Given the outcome of the case, each party shall bear its own legal fees.
For the above reasons, the Court:
As to form:
the appeal filed by Jean-Charles Rielle and Pascal
On the merits:
Affirms the judgement except as regards the amount of the fine.
Ruling anew on this point:
Condemns Jean-Charles Rielle and Pascal
Jean-Charles Rielle and Pascal
Decides that each party shall bear its own legal fees.
Informs the parties that they can appeal from the present decision to the Tribunal fédéral within thirty days of receipt hereof (art. 272 and 273 PPF [Loi fédérale sur la procédure pénale = Federal Rules of Criminal Procedure].
Standing to appeal and other conditions relating thereto are governed by art. 268 ff PPF.
Antoinette Stalder, Presiding judge; Richard Barbey and Louis Peila, Judges;
Raphaël Nicollier, Clerk.