JOINT DISSENTING OPINION OF JUDGES YUDKIVSKA AND JÄDERBLOM

We respectfully disagree with the majority ’ s finding of violations of Article 10 in this case.

The injunctions issued against the applicant consisted of an order to desist from “further disseminating in the immediate vicinity of the day clinic leaflets containing the plaintiffs ’ names and the assertion that unlawful abortions were performed in the plaintiffs ’ medical practice” and from spreading information about the plaintiffs ’ names and addresses via a website at the address www.babycaust.de (paragraph 14 of the judgment) .

The judgment is based on a presumption that the applicant ’ s leaflets about two doctors, as well as mentioning their names and addresses on the website, “contributed to a highly controversial debate of public interest” (see paragraphs 62 and 64) in a State which does not prohibit abortions “by law in a wider sense” (paragraph 25).

It goes without saying that the very issue of abortion constitutes a matter of public interest, and society remains divided over abortion rights. Thus, a similar campaign against those responsible for government policy in this respect would undoubtedly warrant strong protection under Article 10. The same can be said, for instance, about those who are allegedly involved in serious malpractice in this domain (compare Bergens Tidende and Others v. Norway, no. 26132/95, 2 May 2000 ).

In the present case, however, we can hardly agree that a public interest threshold is reached when one is talking about ordinary doctors, merely performing their professional duties in strict accordance with the relevant rules, like many other gynaecologists in Germany. What was the interest for the general public – ( a) in being deliberately misled about their professional integrity (the first word in the leaflet about their activities was “unlawful”), and ( b) in having their clinic ’ s address published on the internet in – to say the least – a very negative context?

Two doctors were singled out as the victims of the applicant ’ s struggle against women ’ s procreative liberty; and what the applicant accused the two doctors of doing was no more and no less than what other doctors were doing. The form and intensity he had chosen for his campaign had an intended outcome – the doctors had to close their clinic (see paragraph 47), which was a natural consequence in the circumstances: if the first result found when “googling” the clinic was the “babycaust” website, an average potential patient might prefer to avoid it. A potential patient might also choose not to be treated by doctors whose practices were associated with the word “unlawful”. In this respect we cannot subscribe to the majority ’ s finding in paragraph 62 that it is not clear if there was actually a causal link between the applicant ’ s activities and the closure of the clinic.

Indeed, the applicant ’ s campaign proved to be counter-productive: it deprived women in the vicinity of the clinic from a wide spectrum of gynaecological services outside the scope of abortion. As can be seen from the case-file material, abortions constituted a minor part of the clinic ’ s services.

We do not share the majority ’ s view that the judgment of the Federal Constitutional Court of 8 November 2010 was dealing with “almost identical questions”. That court underlined the key difference in its judgment; in that case the doctor himself had publicly advertised the abortion services on the internet, and had therefore consciously exposed himself to criticism from the anti-abortion movement (see paragraph 25).

The exposure as such of the two doctors did not contribute to the matter of public interest. Nevertheless, the applicant was able to demonise them by mixing their names with notions related to the most horrifying crime in the history of humankind – “Holocaust”, “Auschwitz”, “Nazi”. It is, perhaps, tolerable as an artistic device to describe mass abortion as such in general (and the applicant ’ s website was thus not closed), but not with respect to individual doctors faultlessly performing their ordinary duties.

It is also important to mention that the applicant was not held liable for his actions, and his website is still fully operational, although without the two doctors ’ names or the address of their former clinic. T he injunction as regards the website did not affect the applicant ’ s right to maintain the website or his criticism of abortion contained thereon, but was restricted to the publication of the plaintiffs ’ personal data. As regards the leaflets, the ban was restricted to distribution in the immediate vicinity of the medical practice and there was nothing to stop the applicant from continuing to disseminate his criticism of the plaintiffs elsewhere. Given their very limited effect, it cannot be said that t he injunction orders placed an excessive burden on the applicant.

For these reasons we cannot find that the applicant ’ s right to freedom of expression has been violated.

Noting that the present case involved injunction proceedings, we are also unable to share the majority ’ s criticism of the domestic courts ’ failure to apply “procedural principles embodied in Article 10”. The reasoning by the domestic courts appears to be convincing enough (even without a clear balancing exercise based on criteria established by the Strasbourg Court ’ s case-law), and the outcome reached is, from our point of view, compatible with the requirements of the Convention.

It also appears that the domestic courts took into account some broader consequences of the harassment actions against abortion doctors. Section 12 of the Law on Conflicts in Pregnancy (see paragraph 27) provides for the right to conscientious objection; and derision of abortion doctors, to which the applicant resorted, pushes more and more doctors to refuse to perform abortions, to the detriment of women in difficult situations. The Parliamentary Assembly of the Council of Europe has expressed the concern that “the unregulated use of conscientious objection may disproportionately affect women, notably those having low incomes or living in rural areas” [1] .

As we have already mentioned, there is no doubt that the applicant participated in a debate involving moral and ethical issues, which normally calls for a high degree of protection in terms of free-speech requirements. The United States Supreme Court has recently invalidated a Massachusetts statute that prevented pro-life activists from campaigning within a 35-foot buffer zone around abortion clinics, whilst the petitioners in that case were merely offering women information about alternatives to abortion [2] . It could be perfectly legitimate to distribute leaflets and run a website criticising abortion as a phenomenon, which the applicant continues to do, but in the present case the actions prohibited by the domestic judicial authorities were limited to the continued destruction of the professi onal reputation of two doctors.

In sum, we find that the German authorities have struck a fair balance between the competing interests at stake.

[1] 1. PACE Resolution 1763 (2010) “ The right to conscientious objection in lawful medical care ”, adopted by the Assembly on 7 October 2010.

[2] 2. McCullen v. Coakley , 573 U.S. ___ (2014).