Information Note on the Court’s case-law 190

November 2015

Annen v. Germany - 3690/10

Judgment 26.11.2015 [Section V]

Article 10

Article 10-1

Freedom of expression

Freedom to impart information

Court order restraining distribution of leaflets equating abortion to the Holocaust and publishing on-line the contact details of doctors performing abortions: violations

Facts – In 2005 the applicant, an anti-abort ion campaigner, distributed leaflets in the vicinity of a clinic ran by Doctors M. and R. where abortions were performed. The leaflet contained the following text in bold letters: “In the day clinic Dr M./Dr R. [full names and address] unlawful abortions a re performed”. This was followed by an explanation in smaller letters that abortions were, however, allowed by the German legislature and were not subject to criminal liability. On the back of the leaflet it was stated that “The murder of human beings in A uschwitz was unlawful, but the morally degraded [Nazi]-State allowed the murder of innocent people and did not make it subject to criminal liability.” Below this sentence the leaflet referred to a website operated by the applicant which contained an addres s list of so-called “abortion doctors”, including the clinic and the full names of Doctors M. and R. Following a complaint by the two doctors, the domestic courts ordered the applicant to desist from further disseminating the leaflets at issue and from men tioning the doctors’ names and address in his website. The applicant’s subsequent appeal was dismissed. In the Convention proceedings, the applicant complained of a breach of his right to freedom of expression.

Law – Article 10

(a) Order to desist from di sseminating leaflets in the immediate vicinity of the clinic – The domestic courts had acknowledged that the leaflet addressed questions of public interest and that the applicant was allowed to pursue his political aims even by the use of exaggerated and p olemic criticism. They however found that the applicant had created the erroneous impression that abortions had been performed unlawfully, because the whole layout of the leaflet was intended to draw the reader’s attention to the first sentence set in bold letters, while the further explanation was set in smaller letters with the intent of dissimulating its content. Furthermore, they held that the applicant had created a massive “pillory effect” by singling out the two doctors, an effect that was further ag gravated by the Holocaust reference.

In the Court’s view, however, the applicant’s statement that “unlawful abortions” had been performed was correct from a judicial point of view, because the domestic law merely distinguished between abortions which were considered “unlawful”, but were exempt from criminal liability, and abortions which were considered justified and thus “lawful”. The wording of that statement was also sufficiently clear and immediately accessible to the reader, even from a layperson’s per spective. Therefore, the facts of the present case had to be distinguished from those underlying the applicant’s prior applications to the Court, which had concerned leaflets and a poster which used the expression “unlawful abortions” without providing any further legal explanation.* Furthermore, the applicant’s choice of disseminating leaflets in the immediate vicinity of the clinic had enhanced the effectiveness of his campaign, which contributed to a highly controversial debate of public interest. Moreov er, although it appeared that the doctors, as a consequence of negative public attention, had closed the day clinic and had built up another professional practice, it was not clear whether the applicant’s activities had actually caused this development. As to the reference to the Holocaust, the Court could not agree with the domestic courts’ interpretation that the applicant had compared the doctors and their professional activities to the Nazi regime. In fact, his statement that the killing of human beings in Auschwitz had been unlawful, but allowed, and had not been subject to criminal liability under the Nazi regime, could also be understood as a way of creating awareness of the more general fact that law may diverge from morality. Although the Court was aware of the implicit meaning of the applicant’s statement, which was further intensified by the reference to his webpage called , it observed that the applicant had not explicitly equated abortion with the Holocaust. Thus, the Court was not convinced that the prohibition of disseminating the leaflets was justified by a violation of the doctors’ personality rights due to the Holocaust reference alone.

Conclusion : violation (five votes to two).

(b) Order not to mention the doctors’ contact details in the on-line list of “abortion doctors” – The domestic courts had found that the applicant’s leaflet and website equated the doctors’ actions with the Holocaust and with mass murder, which was not covered by his freedom of expression. However, they limited themselves to finding that the same principles which had been elaborated with regard to the leaflet should also apply to the website, without further examination of the individual and contextual circumst ances. In particular, they did not distinguish between the applicant’s statement in the leaflet, which had a geographically limited impact, and his statements on the Internet, which could be disseminated worldwide. Additionally, they did not analyse, for e xample, the exact content, overall context or specific layout of the applicant’s webpage listing the doctors’ names, the need to protect sensitive data, the doctors’ previous behaviour, the impact of the applicant’s statement on third parties and whether o r not it was likely to incite aggression or violence against the doctors.

It followed that the domestic courts had not applied standards in conformity with the procedural principles embodied in Article 10 of the Convention and had not based themselves on a n acceptable assessment of the relevant facts.

Conclusion : violation (five votes to two).

Article 41: claim in respect of non-pecuniary damage dismissed.

(See also A, B and C v. Ireland [GC], 25579/05, 16 December 2010, Information Note 136 ; Delfi AS v. Estonia [GC], 64569/09, 16 June 2015, Information Note 186 ; Hoffer and Annen v. Germany , 397/07 and 2322/07, 13 January 2011; PETA Deutschland v. Germany , 43481/09, 8 November 2012, Information Note 157 )

* See the decisions in the case of Annen v. Ge rmany of 30 March 2010 ( 2373/07 and 2396/07) and of 12 February 2013 ( 55558/10 ).

© Council of Europe/European Court of Human Rights This s ummary by the Registry does not bind the Court.

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