CASE OF ANNEN v. GERMANY (No. 2)

FIFTH SECTION

CASE OF ANNEN v. GERMANY (No. 2)

(Application no. 3682/10)

JUDGMENT

STRASBOURG

20 September 2018

FINAL

20/12/2018

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Annen v. Germany (no. 2),

The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:

Yonko Grozev, President,
Angelika Nußberger,
André Potocki,
Síofra O’Leary,
Mārtiņš Mits,
Lәtif Hüseynov,
Lado Chanturia, judges,
and Claudia Westerdiek, Section Registrar,

Having deliberated in private on 28 August 2018,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 3682/10) against the Federal Republic of Germany lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a German national, Mr Klaus Günter Annen (“the applicant”), on 15 January 2010.

2. The applicant was represented by Mr L. Eck, a lawyer practising in Passau. The German Government (“the Government”) were represented by their Agents, Mr H.‑J. Behrens and Ms K. Behr, of the Federal Ministry of Justice and Consumer Protection.

3. The applicant alleged that an order by the domestic courts to desist from labelling abortions “aggravated murder” on his webpage had violated his freedom of expression under Article 10 of the Convention.

4. On 3 January 2017 the complaint concerning Article 10 of the Convention was communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1951 and lives in Weinheim. He is a campaigner against abortion and operates an anti-abortion website (). At the time of the proceedings outlined below, the website included, among other things, the following content.

6. On the starting page a picture of graves was shown and the text underneath read “then: Holocaust”. Upon clicking on the picture, the user was directed to a page titled: “Abortion – the new Holocaust?” on which the Holocaust was compared to abortions. On the left margin of the starting page, there were several links, of which one was called “Life or death?”. Upon clicking on it, the user was directed to a page with the headline “Prayer requests for Germany”. From that page, the reader was directed to a location-based alphabetical list mentioning the names and practice addresses of doctors who performed abortions in Germany, and to a request for prayers for those doctors.

At the very bottom of the same page, under the highlighted text “German contemporary history in brief”, a sentence read:

“Perverted doctors murder unborn children at the request of the mothers” (Pervertierte Ärzte ermorden im Auftrag der Mütter die ungeborenen Kinder)

On the same page, clicking on the button “close page” forwarded the user to a page where it was stated:

“Pray, if possible regularly, for the doctors ... who personally undertake the AGGRAVATED MURDER of abortion killing” (Beten Sie – wenn möglich regelmäßig – für die Mediziner ..., welche den MORD der Abtreibungstötung selbst vornehmen ...) (Emphasis in original).

Somewhat farther down on the same page, it was stated that counselling centres that issued certifications:

“... are enabling and facilitating the unpunished aggravated murder of children in their mother’s womb.” (... ermöglichen und begünstigen einen straffreien Kindermord im Mutterschoβ.)

7. One of the doctors listed on the applicant’s website, Dr Q., sought a civil injunction ordering the applicant to remove his name and address from the website.

8. On 23 May 2006 the Mannheim Regional Court rejected Dr Q.’s application on the grounds that it was a fact that Dr Q. performed abortions and that the remainder of the website’s content was covered by the applicant’s freedom of expression. It observed, in particular, that the present case was not comparable to similar cases which had concerned an interference with personality rights by the distribution of personalised leaflets. The publishing of a doctor’s name on a list of abortion performing doctors had no comparable “pillory effect”.

9. Subsequently Dr Q. appealed and – during the appeal proceedings –

modified his application, seeking a civil injunction ordering the applicant to desist from labelling abortions, such as those performed by Dr Q., “aggravated murder”.

10. On 28 February 2007 the Karlsruhe Court of Appeal granted the sought injunction. The court held that the applicant’s website led it to be understood that abortions performed by Dr Q. constituted “aggravated murder”. While the term “aggravated murder” did not have to be understood in a merely legal sense but could also be understood as a moral judgment, the overall presentation of the website at the very least did not exclude a reading that Dr Q. had perpetrated the criminal offence of aggravated murder. Even though the applicant had pointed out that abortions were exempt from punishment, he had not referred to section 218a of the Criminal Code (see paragraph 14 below), which exempted abortions as performed by Dr Q., from criminal liability. In addition, the applicant had emphasised the term “aggravated murder” in the relevant parts of the website and had compared abortions with the Holocaust. In sum, the statements of the website could be understood as a personalised accusation against Dr Q. of perpetrating aggravated murder.

11. On 29 May 2007 the Federal Court of Justice refused a request by the applicant for legal aid on the grounds that the applicant’s intended appeal on points of law lacked sufficient prospect of success.

12. On 2 July 2009 the Federal Constitutional Court refused to admit a complaint by the applicant for adjudication for being inadmissible, without providing reasons (no. 1 BvR 1663/07).

II. RELEVANT DOMESTIC LAW AND PRACTICE

13. Article 5 of the German Basic Law (Grundgesetz) reads, in so far as relevant, as follows:

“(1) Every person shall have the right freely to express and disseminate his opinions in speech, writing and pictures, and to inform himself without hindrance from generally accessible sources. ...

(2) These rights shall find their limits in the provisions of general laws, in provisions for the protection of young persons, and in the right to personal honour.”

14. The relevant provisions of the German Criminal Code (Strafgesetzbuch) read:

Article 211
Aggravated murder

“(1) Whosoever commits aggravated murder shall be liable to imprisonment for life.

(2) A murderer under this provision is any person who kills a person for pleasure, for sexual gratification, out of greed or otherwise base motives, maliciously or cruelly or by means that pose a danger to the public or in order to facilitate or to cover up another offence.”

Article 218
Abortion

“(1) Whosoever terminates a pregnancy shall be liable to imprisonment of not more than three years or a fine. Acts the effects of which occur before the conclusion of the nidation shall not be deemed to be an abortion within the meaning of this law.

(2) In especially serious cases the penalty shall be imprisonment from six months to five years. An especially serious case typically occurs if the offender acts against the will of the pregnant woman; or through gross negligence causes a risk of death or serious injury to the pregnant woman.

(3) If the act is committed by the pregnant woman the penalty shall be imprisonment of not more than one year or a fine.

(4) The attempt shall be punishable. The pregnant woman shall not be liable for the attempt.”

Article 218a
Exception to liability for abortion

“(1) The offence under section 218 shall not be deemed fulfilled if the pregnant woman requests the termination of the pregnancy and demonstrates to a doctor by certificate in accordance with section 219 (2) 2nd sentence that she obtained counselling at least three days before the operation; the termination of the pregnancy is performed by a doctor; and not more than twelve weeks have elapsed since conception.

(2) The termination of pregnancy performed by a doctor with the consent of the pregnant woman shall not be unlawful if, considering the present and future living conditions of the pregnant woman, the termination of the pregnancy is medically necessary to avert a danger to the life or the danger of grave injury to the physical or mental health of the pregnant woman and if the danger cannot reasonably be averted in another way from her point of view.”

15. The Federal Constitutional Court, in its leading judgment of 28 May 1993 (BVerfGE 88, 203), accepted abortions being performed by doctors after a pregnant woman had obtained counselling by a third person, and developed a rather singular approach by qualifying certain acts of abortion as unlawful, but not punishable. “Abortions which are performed without the establishment of a medical indication must not be treated as being justified (not unlawful)” (Schwangerschaftsabbrüche, die ohne Feststellung einer Indikation nach der Beratungsregelung vorgenommen werden, dürfen nicht für gerechtfertigt (nicht rechtswidrig) erklärt werden). However, abortions performed by a doctor within twelve weeks of conception and following obligatory counselling are considered to be unlawful, but are exempt from criminal liability.

16. The relevant provision of the Conflicts in Pregnancy Act (Schwangerschaftskonfliktgesetz) reads as follows:

Section 12
Refusal

“(1) Nobody is obliged to assist in abortions. ...”

17. The relevant provisions of the German Civil Code (Bürgerliches Gesetzbuch) read as follows:

Article 823

“(1) A person who, intentionally or negligently, unlawfully injures the life, body, health, freedom, property or another right of another person, is liable to pay compensation to the other party for the damage arising from this. ...”

Article 1004

“(1) If the ownership is interfered with by means other than removal or retention of possession, the owner may require the disturber to remove the interference. If further interferences are to be feared, the owner may seek a prohibitory injunction. ...”

18. According to the case-law of the German civil courts, Article 823 §§ 1 and 2 in conjunction with Article 1004 (in analogous application) of the Civil Code grants any person whose personality rights concretely risk being violated by another person a claim to compel that other person to refrain from performing the impugned action.

THE LAW

ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION

19. The applicant complained that the Court of Appeal’s order to desist from labelling abortions “aggravated murder” on his webpage had violated his freedom of expression as provided in Article 10 of the Convention, which reads as follows:

“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. ...

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society... for the protection of the reputation or rights of others, ...”

A. Admissibility

20. The Court notes that this complaint is neither inadmissible for non‑exhaustion of domestic remedies (see Annen v. Germany, no. 3690/10, §§ 37-40, 26 November 2015) nor manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ submissions

21. The applicant argued that the Court of Appeal’s desist order had interfered with his freedom of expression without being justified by the protection of the personality rights of Dr Q. He submitted that his website had contributed to a public debate and he had not personally attacked Dr Q., who had been only one of the doctors listed on the website. An overall assessment of the website showed that his intention had not been to slander a particular doctor, but to criticise the legal situation in Germany under which abortions performed by a doctor within twelve weeks of conception and following obligatory counselling were considered to be unlawful, but were exempt from criminal liability. In the light of his contribution to a public debate of great importance possible interferences with doctors’ personality rights had been justified.

22. The Government submitted that the injunction by the Court of Appeal had not violated the applicant’s freedom of expression. The court had carefully weighed the applicant’s freedom of expression against the rights of the doctor concerned, arising from Article 8 § 1 of the Convention. In doing so, it had recognised the importance of the applicant’s freedom of expression, especially within the context of the public debate about abortion. Within the scope of its margin of appreciation, the Court of Appeal had come to the compelling conclusion that the content of the applicant’s website had been such a serious violation of Dr Q.’s personality rights as to justify a restriction on the applicant’s freedom of expression.

23. The Government further argued that unlike in the case of Annen (cited above) the Karlsruhe Court of Appeal had carried out an extensive analysis of the content of the website and had documented parts of it with screen shots. In doing so, it had sufficiently examined the applicant’s statements in the light of the right to freedom of expression, and had also addressed alternative possibilities of interpretation. As a result, the court had concluded that, in characterising the medical activities of Dr Q. as “aggravated murder” and equating them with the Holocaust, the applicant had committed a serious personal attack and had therefore violated Dr Q.’s personality rights.

2. The Court’s assessment

24. At the outset the Court considers – and this is not in dispute between the parties – that the injunction interfered with the applicant’s freedom of expression, had a legal basis and pursued the legitimate aim of protecting the rights and reputation of Dr Q. It therefore remains to be determined whether the interference was “necessary in a democratic society” and whether the balancing exercise undertaken by the domestic courts was in conformity with the criteria laid down in the Court’s case-law.

25. The fundamental principles concerning the question of whether an interference with freedom of expression is “necessary in a democratic society” are well established in the Court’s case-law and have recently been summarised as follows (see Delfi AS v. Estonia [GC], no. 64569/09, § 131, 16 June 2015 with further references):

“(i) Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no ‘democratic society’. As set forth in Article 10, this freedom is subject to exceptions, which ... must, however, be construed strictly, and the need for any restrictions must be established convincingly ...

(ii) The adjective ‘necessary’, within the meaning of Article 10 § 2, implies the existence of a ‘pressing social need’. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a ‘restriction’ is reconcilable with freedom of expression as protected by Article 10.

(iii) The Court’s task, in exercising its supervisory jurisdiction, is not to take the place of the competent national authorities but rather to review under Article 10 the decisions they delivered pursuant to their power of appreciation. This does not mean that the supervision is limited to ascertaining whether the respondent State exercised its discretion reasonably, carefully and in good faith; what the Court has to do is to look at the interference complained of in the light of the case as a whole and determine whether it was ‘proportionate to the legitimate aim pursued’ and whether the reasons adduced by the national authorities to justify it are ‘relevant and sufficient’... In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they relied on an acceptable assessment of the relevant facts ...”

26. The Court further reiterates that the right to protection of reputation is protected by Article 8 of the Convention as part of the right to respect for private life (see Chauvy and Others v. France, no. 64915/01, § 70, ECHR 2004-VI; Pfeifer v. Austria, no. 12556/03, § 35, 15 November 2007; and Polanco Torres and Movilla Polanco v. Spain, no. 34147/06, § 40, 21 September 2010). In order for Article 8 to come into play, however, an attack on a person’s reputation must attain a certain level of seriousness and be made in a manner causing prejudice to personal enjoyment of the right to respect for private life (see A. v. Norway, no. 28070/06, § 64, 9 April 2009; Axel Springer AG v. Germany [GC], no. 39954/08, § 83, 7 February 2012; and Delfi AS, cited above, § 137). In cases that concerned allegations of criminal conduct the Court also took into account that under Article 6 § 2 of the Convention individuals have a right to be presumed innocent of any criminal offence until proved guilty (see, among other authorities, Worm v. Austria, 29 August 1997, § 50, Reports of Judgments and Decisions 1997‑V; and Du Roy and Malaurie v. France, no. 34000/96, § 34, ECHR 2000-X).

27. When examining whether there is a need for an interference with freedom of expression in a democratic society in the interests of the “protection of the reputation or rights of others”, the Court may be required to ascertain whether the domestic authorities have struck a fair balance when protecting two values guaranteed by the Convention which may come into conflict with each other in certain cases, namely on the one hand freedom of expression protected by Article 10, and on the other the right to respect for private life enshrined in Article 8 (see Hachette Filipacchi Associés v. France, no. 71111/01, § 43, 14 June 2007; MGN Limited v. the United Kingdom, no. 39401/04, § 142, 18 January 2011; Axel Springer AG, cited above, § 84; and Delfi AS, cited above, § 138).

28. Although opinions may differ on the outcome of a judgment, where a balancing exercise was undertaken by the national authorities in conformity with the criteria laid down in the Court’s case-law, the Court would require strong reasons to substitute its view for that of the domestic courts (see Lillo-Stenberg and Sæther v. Norway, no. 13258/09, § 44, 16 January 2014, with references to Axel Springer AG, cited above, § 88, and Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, § 107, ECHR 2012).

29. Turning to the circumstances of the present case, the Court notes, at the outset, that the Court of Appeal, in contrast to the courts in the case of Annen v. Germany (no. 3690/10, §§ 19, 71-75, 26 November 2015), assessed the website, with reference to the situation at the relevant time. The Court therefore concludes that the legal protection received by the applicant at the domestic level was compatible with the procedural requirements of Article 10 of the Convention.

30. As regards the balancing of the applicant’s freedom of expression and the doctor’s personality rights, the Court acknowledges, like the Court of Appeal, that the applicant’s statements addressed questions of public interest.

31. It further observes that the Court of Appeal held that the applicant had stated on his website that the medical activities performed by Dr Q. had constituted “aggravated murder” and examined in detail how the term “aggravated murder” had to be understood. It concluded that the content of the website had been ambiguous and that the statements could be understood as a personalised accusation against Dr Q. of having perpetrated the criminal offence of aggravated murder. It therefore concluded that the applicant’s statements could be understood as statements of fact. Since the statements were evidently incorrect, the Court of Appeal ordered the injunction.

32. The Court reiterates that the classification of a statement as a fact or as a value judgment is a matter which in the first place falls within the margin of appreciation of the national authorities, in particular the domestic courts (see Prager and Oberschlick v. Austria, 26 April 1995, § 36, Series A no. 313). Having regard to the screenshots of the website provided by the Government, the applicant’s statements and the presentation of these statements, the Court finds the classification by the Court of Appeal acceptable.

33. The Court also agrees with the Court of Appeal’s conclusion that the applicant’s statements could be understood as an accusation that Dr Q. had perpetrated the criminal offence of aggravated murder. The Court of Appeal reasoned that the applicant had not made it sufficiently clear that doctors providing abortions in accordance with Article 218a of the Criminal Code had been exempted from criminal liability. Therefore, the present case has to be distinguished from the case of Annen (cited above), which concerned a leaflet of the applicant in which he had called abortions unlawful but had clearly provided an additional explanation that they had not been subject to criminal liability. In the present case, however, the applicant did not provide such additional information, but merely stated that abortions constituted aggravated murder and mentioned only once that they were “unpunished” (see paragraph 6 above). This singular reference in the context of counseling centres could easily go unnoticed and did not have to be understood as elaboration of the legal situation in Germany, according to which doctors providing abortions in accordance with Article 218a of the Criminal Code were exempted from criminal liability.

34. Concerning the factual foundation for the applicant’s statements, the Court notes that the applicant argued neither before the domestic courts nor before the Court that the abortions performed by Dr Q. constituted aggravated murder in the legal sense of Article 211 of the Criminal Code. The Court therefore concludes that there was no factual foundation whatsoever for the allegation that Dr Q. committed the criminal offence of aggravated murder. The Court would further add that even where a statement amounts to a value judgment, there must be a sufficient factual basis to support it, failing which it will be excessive (see Jerusalem v. Austria, no. 26958/95, § 43, ECHR 2001‑II). Consequently, the Court finds that, even assuming that the applicant’s statements were to be considered value judgments, there was not a sufficient factual basis for calling abortions as performed by Dr Q. “aggravated murder”. In that context the Court also notes that the accusations were not only very serious, something reflected in the fact that a conviction for aggravated murder would carry a life sentence, but might also incite to hatred and aggression.

35. Lastly, the Court observes that the applicant was not criminally convicted for slander or ordered to pay damages (contrast Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99, § 93, ECHR 2004‑XI) but that the applicant was only ordered to desist from labelling abortions, such as those performed by Dr Q., “aggravated murder” and to desist therefore from implying that Dr Q. was committing that criminal offence.

36. Having regard to the foregoing and in particular to the seriousness of the accusations against Dr Q., the Court considers that the injunction was not disproportionate to the legitimate aim pursued, and that the reasons given by the Court of Appeal were relevant and sufficient. The interference with the applicant’s exercise of his right to freedom of expression could therefore reasonably be regarded by the domestic courts as necessary in a democratic society for the protection of the reputation and rights of others.

37. There has accordingly been no violation of Article 10 of the Convention.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the complaint concerning Article 10 admissible;

2. Holds that there has been no violation of Article 10 of the Convention.

Done in English, and notified in writing on 20 September 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Claudia WesterdiekYonko Grozev
RegistrarPresident

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