REPUBLIC AND CANTON OF GENEVA

The Judiciary

Cour de Justice  [Court of Appeal]

Case Postale 3108

1211 Geneva 3

Ref. P/5421/01

ACJP/12/03

                                                         HEARING OF MONDAY, 13 JANUARY 2003

                                                            ___________________________________

                                                                        CRIMINAL DIVISION

 

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,

                                    v.

PUBLIC PROSECUTOR of the Republic and Canton of Geneva, Offices of the Public Prosecutor, Palais de Justice, place du Bourg-de-Four, Geneva, respondent,

          Ragnar 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 Geneva; civil claimant

 

 

 

Notice of the present decision is given to the parties on 15 January 2003.

FACTS

 

A.       By judgement of 24 May 2002, notified on the same day, the Tribunal de police found Jean-Charles Rielle and Pascal Diethelm guilty of defamation (art. 173 CP [Code pénal suisse = Swiss Criminal Code]) ensuing from a press release drafted by them and publicised during a press conference on 29 March 2001: the said press release portrayed Ragnar Rylander as a fraud in the pay of tobacco companies, affirming in particular that he was responsible for an "unprecedented scientific fraud", that he was "secretly employed by Philip Morris USA", and that he was "one of Philip Morris's most highly paid consultants".  Jean-Charles Rielle and Pascal Diethelm were condemned to pay each a fine of CHF 4,000 and CHF 4,000 towards the legal fees of the civil claimant, Ragnar Rylander, and to bear procedural costs in the amount of CHF 1,750, including a CHF 400 judgement fee.  Ragnar Rylander's submissions pertaining to damages and publication of the judgement were dismissed.

B.        On 27 May 2002 Jean-Charles Rielle and Pascal Diethelm filed an appeal for reversal of the judgement.

At the hearing of 21 October 2002 before the present Court the appellants moved for the initial judgement to be reversed.  In their view, they had acted within the framework of an official duty, they had demonstrated the veracity of their allegations and, subsidiarily, they had had valid reasons, acting in good faith, to believe them to be true; concerning the last point, they criticised the Tribunal de police for not allowing them to produce evidence of their good faith.

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 Pascal Diethelm made available for publication a press release drafted by them and entitled "Geneva at the centre of an unprecedented scientific fraud: overwhelming evidence against the activities of 'Geneva' professor Ragnar Rylander!" In the text, they indicated that Professor Ragnar Rylander, professor of hygiene at the Faculty of Medicine of the University of Geneva and professor at the University of Göteborg (Sweden), was secretly employed by Philip Morris USA and paid by Fabriques de Tabac Réunies, Neuchâtel.  Jean-Charles Rielle and Pascal Diethelm also explained that, being attached to the Institut de médecine sociale et préventive [Institute for Social and Preventive Medicine], Ragnar Rylander was in charge of several of its research projects on dietary habits and lifestyle, one of which dealt with passive smoking.  According to them, the conclusion reached by one of his projects on respiratory infections in young children and environmental factors, namely that tobacco smoke did not modify risks of illness in young children, was mind-boggling and, when one knew that he was one of Philip Morris's most highly paid consultants, tended to call into question the objectivity of his work.  In the last part of their press release Jean-Charles Rielle and Pascal Diethelm requested in particular that an inquiry be launched within the University of Geneva regarding Ragnar Rylander's activities, that all ongoing studies based on or making direct or indirect references to his studies be immediately suspended, that the Rectorate of the University of Geneva publicly denounce his studies in scientific journals, and that university titles conferred on him in Geneva be revoked.

Ragnar Rylander, environmental physician, former researcher and lecturer at various institutes and universities, notably the Universities of Stockholm, Göteborg and Geneva, filed a criminal complaint on 18 April 2001 for defamation, or even calumny, against Jean-Charles Rielle and Pascal Diethelm, signatories to the above-mentioned press release.  In the complaint he indicated that his work on smoking represented 10% of his overall research and publications.

b.    The numerous exhibits produced by Jean-Charles Rielle and Pascal Diethelm show the following:

In the early 1970s Philip Morris purchased Infibo (Institut für industrielle und biologische Forschung), a laboratory located in Cologne.  According to the president of Philip Morris, the idea was to have a place for certain activities that the company was reluctant to conduct in the United States.  Using Inbifo would make it possible to keep certain research activities and their results confidential.  Besides, there was to be no direct contact between Philip Morris and Infibo.  Fabriques de Tabac Réunies (hereinafter FTR) in Neuchâtel, a subsidiary of Philip Morris, was to serve as intermediary.

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 Cologne, requiring him to be present there for three days each month, in return for a remuneration of USD 250 per day plus expenses.  Ragnar Rylander was to be paid by FTR.

On 7 December 1972 Philip Morris and Ragnar Rylander entered into a consultancy agreement.  Acting as consultant to Infibo, Ragnar Rylander also organised conferences dealing with research on the effects of tobacco smoke.

c.     A symposium on the effects of tobacco smoke on non-smokers, organised by Ragnar Rylander, was held in Bermuda from 27 to 29 March 1974.  Earlier, Ragnar Rylander had met a lawyer from the Tobacco Institute who represented the tobacco industry in lawsuits dealing with smoke- and health-related issues; being then of the opinion that there were sufficient elements to support the view that smoke was harmless to non-smokers, the lawyer was worried that the proposed conference might present a risk to the tobacco industry.  Further, in September 1973 Ragnar Rylander had submitted a preliminary list of participants to Donald Hoel, a lawyer close to Philip Morris, for his comments and proposals concerning new participants; by letter of 5 October 1973 he had notably asked Donald Hoel whether a certain Dr Dublin would be a suitable participant, stating however that although the person in question appeared to be somewhat biased, it was advisable to balance the list of participants so as not to be accused of having selected only one category of people.

Preparing the publication of a brochure setting out the various issues discussed at the conference, on 1 April 1974 Ragnar Rylander wrote to Donald Hoel, submitting the table of contents, the conclusions and recommendations, and a draft report on the criteria determining the effects of environmental tobacco smoke; he wished to discuss these documents with Donald Hoel.  On 7 August 1974 Ragnar Rylander forwarded to Helmut Wakeham, vice-president of the Philip Morris research centre based in Richmond, Virginia, the final version of the report for comments and suggestions, drawing his attention to the fact that the report would be an important part of the official proceedings of the conference.

The brochure was finally published during 1974.  It contained a mention that the University of Geneva had supported the conference through a grant from FTR.

Moreover, on 16 August 1974 Helmut Wakeham sent Ragnar Rylander a draft of the conference summary, written by a member of the Philip Morris research centre and meant to be published in the journal "Science" bearing Ragnar Rylander's name.  Ragnar Rylander was asked to choose carefully the names of four referees in North America to support the publication.  On 12 September 1974 Raymond Fagan, another member of the Philip Morris research centre, asked Ragnar Rylander to add a paragraph to the article to be published in "Science".  The text of the proposed paragraph began as follows:

"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".  Replying on 3 October 1974, Ragnar Rylander wrote that he subscribed to the content of the above paragraph but that its inclusion was not advisable because of the likely reactions by conference participants.  In his view, the concept behind the meeting would be put at risk and the article would no longer have the participants' full or partial support.

d.    In 1981 Ragnar Rylander was put in charge of organising a second conference on environmental tobacco smoke.  In a memorandum of 31 August 1981 Donald Hoel reported on a discussion with Ragnar Rylander who was of the opinion that the seminar would not be able to give environmental tobacco smoke "a clean bill of health".  Ragnar Rylander had prepared a memorandum strictly for internal use but was going to work on it further in order to provide a global overview of the subject that could be used as the introduction to the conference.  The prospective sponsor proposed by him was the Council for Tobacco Research (CTR), which could not be suspected of having made prior arrangements relating to any research proposals resulting from the symposium.  On 27 January 1982 Donald Hoel wrote to Thomas Osdene, director of Research at the Richmond centre, informing him of his meeting with Ragnar Rylander two weeks previously: the latter did not have a guest list but proved to be very receptive to the suggestions made to him, he would not be inviting Garfinkel or Hirayama, etc.  Ragnar Rylander wrote to Thomas Osdene on 25 May and again on 13 August 1982.  In the first letter he submitted the list of topics to be discussed at the symposium, mentioning that he had already sent them to Donald Hoel and was awaiting his comments.  In the second, he explained that he had established the plans for the conference and received the go-ahead from Donald Hoel; the symposium was to be held in Geneva from 15 to 17 March 1983.  Ragnar Rylander later met Donald Hoel on several occasions to discuss the conference proceedings.  The document in question, published in 1983, mentions financial support from the Tobacco Institute in Washington, D.C.

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.

e.     On 2 November 1991 Ragnar Rylander wrote to Thomas Osdene on the subject of respiratory diseases in children, stating that the data from the study on children was starting to look extremely interesting and that after corrections in the data base there was no correlation between exposure to environmental tobacco smoke and the frequency of respiratory infections.

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.

In June 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 Richmond, Virginia:

"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 Richmond only and particularly not get engaged in the activities of the Neuchâtel group. (…) Finally, I have never been involved with any Philip Morris executive in meetings or contacts with outside persons, to retain as far as possible the image as an independent scientist."

f.     On 5 February 1998 Ragnar Rylander wrote to the "European Journal of Public Health" submitting for publication his article entitled "Dietary habits for non-smoking women living with smokers or non-smokers"; in his letter he stated the following: "No part of the research presented has been funded by sources that might lead to a conflict of interest." The article in question was published in 1999.  In a letter dated 28 May 2001, the editor-in-chief of the above-named journal asked Ragnar Rylander about his relations with the tobacco industry.  Replying on 26 June 2001, Ragnar Rylander indicated that he had not been engaged by Philip Morris as a consultant but as its representative at Infibo, a research institute for inhalation toxicology, that he had never been a formal consultant to Philip Morris, no contract ever having been signed, and that he had never received regular payment for consulting services as such, only travel expenses and per diems.  Meeting on 17 December 2001, the Committee on Publication Ethics of the above-named journal considered that the general public should be made aware that in the course of his career Ragnar Rylander had been sponsored by the tobacco industry and had lied about it, and that an article should therefore be written to highlight his past lapses and give a full account of the affair.

g.     In an internal memorandum of 18 September 1984 Thomas Osdene set out the budget relating to the remuneration of Philip Morris consultants.  Under it, Ragnar Rylander was to receive USD 120,000 in 1986, USD 125,000 in 1987, USD 130,000 in 1988 and USD 135,000 in 1989.  Only FTR and the American Health Foundation were to receive substantially higher amounts.  The remuneration of other consultants, on the other hand, was considerably lower than that earmarked for Ragnar Rylander.  In the event, Ragnar Rylander received USD 140,000 in 1989.

According to a Philip Morris internal memorandum of 10 July 1987 regarding funds paid to Ragnar Rylander, the latter received fees ranging from USD 2,500 in 1972 to USD 85,000 in 1997.  As stated in the same document, Philip Morris had also made available to him funds for various research activities at the University of Geneva since 1974, Ragnar Rylander acting as either principal investigator in the research or administrator of the funds; the amount of the grants ranged from USD 40,000 in 1985 to USD 80,000 in 1997.

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 Diethelm repeated their allegations on several occasions.  On 29 June 2001 one of their counsel requested that his clients be allowed to produce evidence that would exempt them from punishment (see trial proceedings, p. 4).  On 16 August 2001 the Tribunal de police issued an order authorising Jean-Charles Rielle and Pascal Diethelm to present evidence of the truth of their allegations.  Their second counsel subsequently insisted that the court should not acquit them on the basis of the good-faith defence (see proceedings of the hearing of 23 April 2002, p. 3).

Several witnesses were heard.  One of them was André Rougemont, director of the Institut de médecine sociale et préventive at the Faculty of Medicine of the University of Geneva, who pointed out that seeking private funds to finance research was the rule, given that the budget of the Département de l'instruction publique [Department of Public Education] was insufficient.  However, had he known, in his capacity as director of the institute, that Ragnar Rylander was a consultant to Philip Morris, he would have asked him to choose between the University and the tobacco company.

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 13 August 1952.  He is married and has a grown-up daughter from a previous marriage.  He is a physician with the Service de santé de la jeunesse [Youth Health Service]; he is also co-director of the Centre d'information et de prévention du tabagisme (CIPRET) [Centre for Information and the Prevention of Smoking], consultant to the State of Geneva and associate judge at the Tribunal de la jeunesse [Juvenile Court].  He earns between CHF 10,000 and CHF 12,000 a month.  He owns an apartment, on which he is paying off a mortgage.  Jean-Charles Rielle has no previous criminal record.

Pascal Diethelm was born on 1 December 1944.  He is married and has a grown-up daughter.  Econometrician by training, he is a retired official of the WHO, where he worked for thirty years.  Since January 2000 he has been general manager of a company active in developing software for the art market.  Through his business he earns some CHF 10,000 a month.  Pascal Diethelm is founder and president of Oxygenève, an association active in the defence of non-smokers.  He owns a villa.  Pascal Diethelm has no previous criminal record.

 

LEGAL BASIS

 

            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.

            The 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 Richmond, should be treated with circumspection, given his ties with the tobacco industry.  Finally, the conviction expressed by the president of Reynolds Tobacco in 1984 that the "Rylander symposium" was a useful tool for combating the recognition of the harmfulness of passive smoking, is troubling to say the least; indeed, it implies that the "Rylander symposium" was favourable to the tobacco industry.

            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:

            Admits the appeal filed by Jean-Charles Rielle and Pascal Diethelm from the judgement of the Tribunal de police (2nd Division) of 24 May 2002 in the case P/5421/2001.

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 Diethelm to a fine of CHF 1,000 each.

            Condemns Jean-Charles Rielle and Pascal Diethelm jointly and severally to bear the costs of appeal, including a fee in the amount of CHF 2,500.

            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.