European Court of Human Rights

FIFTH SECTION

CASE OF ANNEN v. GERMANY (No. 5)

(Application no. 70693/11)

JUDGMENT

STRASBOURG

20 September 2018

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Annen v. Germany (no. 5),

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. 70693/11) 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 26 October 2011.

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 a civil injunction and an order to pay damages had violated his freedom of expression under Article 10 of the Convention.

4. On 3 November 2016 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.

5. Third party comments were received from the Alliance Defending Freedom (ADF International), the Ordo Iuris Institute for Legal Culture and Dr F. (plaintiff in the domestic proceedings), all of which had been given leave by the Vice-President to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 3 of the Rules of Court).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

A. Background to the case

6. The applicant was born in 1951 and lives in Weinheim. He is a campaigner against abortion and operates an anti-abortion website on which he campaigns, occasionally in a very graphic way, against abortion.

7. By a decision of 1 March 2007 the Federal Review Board for Publications Harmful to Minors ( Bundesprüfstelle für jugendgefährdende Schriften ) included the applicant's website, www.babycaust.de ("the German website"), on the list of publications considered to be harmful to minors. The applicant subsequently redesigned his online presence. His new website included a link in bold type to the website www.babycaust.at, ("the Austrian website") which was operated by M.H. - since deceased, described by the applicant on his current website as a "dear friend and fellow campaigner". Attached to the link to the Austrian website was the following comment:

"If you want to know more about the modern-day, democratic crime of 'abortion', make your enquiries in Austria." ( Wenn Sie mehr über das modern demokratische Verbrechen der 'Abtreibung' wissen wollen, dann fragen sie in Österreich nach ).

8. At the material time, the content of the Austrian website was essentially consistent with that of the German website prior to the objection from the Federal Review Board. In addition, the Austrian website contained a link to a version of the applicant's complete German website as it had originally existed prior to the Federal Review Board's objection. Only the website credits had been deleted. The applicant had provided M.H. with a CD containing all the data required for the running of "the Austrian website".

9. The version of the German website which could be reached via the link on the Austrian website included the following statement:

"Equating the Babycaust to the Holocaust would mean relativising today's abortion murders" ( Den Babycaust mit dem Holocaust gleichzusetzen würde bedeuten die heutigen Abtreibungsmorde zu relativieren. )

10. Moreover, on the home page of the Austrian website the following statement was shown between two photos of babies, one of which was obviously covered in blood:

"There is no other word for it: Abortion is 'AGGRAVATED MURDER'!" ( Abtreibung ist "MORD", es gibt kein anderes WORT! )

The photo underneath showed a pile of corpses in an unspecified Third Reich concentration camp. The caption below read:

"Abortion and euthanasia are crimes that no human law can presume to declare lawful" ( Abtreibung und Euthanasie sind Verbrechen, die für rechtmäßig zu erklären sich menschliches Gesetz anmaßen kann )

Furthermore, under a link "abortions" on the Austrian website a caricature-like drawing of a wolf as an executioner guillotining embryos was shown. The text above this image read:

"Abortionists: They can kill, but woe betide those who remind them of the killing." ( Abtreiber: Töten können sie, aber wehe wenn man sie ans töten erinnert)

Underneath, the text read:

"'Fascists'/'Anti-Fascists': Whether concentration-camp commanders or murderers of unborn children, both are manifestations of criminals! These 'low lifes' have the same genetic makeup" ( "Faschisten" / "Antifaschisten": KZ-Kommandanten oder Mörder von Ungeborenen, sind zwei Erscheinungsformen von kriminellen Menschen! Diese -�Sumpfblüten" haben denselben genetischen Code )

Accessible via the link "not for the fainthearted" were images purporting to show aborted foetuses and the words:

"Sixty years post-Auschwitz: After 'termination', it's off to the incinerator or the rubbish heap!" ( 60 Jahre nach Auschwitz: nach der "Unterbrechung" geht's in den Verbrennungsofen oder auf den Müll! )

11. Following the link "Germany" and a further link on that page to "Prayer requests", reference was made to a decision by the Karlsruhe Court of Appeal (judgment of 28 February 2007 - 6 U 98/06) prohibiting the applicant from labelling abortions as performed by the doctors named on his website as "aggravated murder". The reference was glossed with the following statement:

"We have not labelled and do not label abortion doctors as aggravated murderers. HOWEVER, we will stand firm in our conviction that the wilful 'bringing-to-death' of an innocent human being is AGGRAVATED MURDER. Can anyone seriously argue that an innocent, unborn human being is not wilfully killed in an 'ABORTION'?" ( Abtreibungsärzte sind von uns nicht als Mörder bezeichnet worden und werden von uns nicht als Mörder bezeichnet. ABER: Wir werden zu unserer Meinung stehen: Das vorsätzliche -�zu Tode bringen" eines unschuldigen Menschen ist MORD. Und wer kann ernstlich behaupten, dass bei einer -�ABTREIBUNG" kein unschuldiger, ungeborener Mensch vorsätzlich getötet wird? )

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

"Perverted doctors murdered unborn children at the behest of their mothers" ( Pervertierte Ärzte ermordeten im Auftrag der Mütter die ungeborenen Kinder )

From that page, the reader was directed to a location-based alphabetical list mentioning the names and practice addresses of many doctors across Germany who performed abortions. The list was accompanied by an invitation to pray for these doctors.

12. Dr F., the plaintiff in the main proceedings, was mentioned on the list. He was of Jewish faith and his family had suffered from the atrocities carried out during the National Socialist era.

B. Domestic Proceedings

13. Dr F. applied to the courts for an injunction against the applicant and M.H. as well as for damages for the violation of his personality rights. He argued that the websites in question had generated a direct association between the named doctors and the Third Reich, equated abortions with the crimes of the Third Reich and stigmatised him as a murderer.

14. On 9 February 2010, the Karlsruhe Regional Court ordered the applicant to desist from using and/or allowing the use of the term "aggravated murder" on the German website or the Austrian website to describe abortions performed by Dr F., who was named on those websites. It also ordered the applicant, as joint and several debtor ( Gesamtschuldner ) with M.H., to pay Dr F. compensation of 10,000 euros (EUR). A similar order against M.H. was issued in a separate judgment.

15. The Karlsruhe Regional Court gave the following grounds for its decision. Firstly it established that the statements at issue could be attributed to the applicant. The fact that the said content was accessible only via the indirect route of the Austrian website operated by M.H. was irrelevant. The applicant had made the content his own by having referred and created a link on the German website expressly to M.H.'s website. He had also not disputed during the proceedings that the statements had originated from him. Moreover, throughout the proceedings, he had continuously, and with conviction, described abortion as aggravated murder and considered the comparison of abortions and the Holocaust, reflected even in the "babycaust" domain name, to be appropriate.

16. In a next step the court analysed screenshots of the website, which had been submitted by the plaintiff. It concluded that the website at issue contained the general statement that abortions, as performed by Dr F., were acts of aggravated murder comparable with the utterly unjustifiable atrocities inflicted on Jews in the Third Reich. By mentioning Dr F.'s name and his practice address directly in this context, the applicant had reproached the doctor specifically for performing abortions and had created a "pillory effect". Even though the applicant had made his statements in the context of a public debate of fundamental importance and freedom of expression protected polemical and sharp criticism, the applicant's comments on the German website and the Austrian website had not been posted as broad criticism but specifically against the doctors mentioned on those sites. The applicant had purposefully undermined the plaintiff's right of personality by labelling abortion as aggravated murder, equating it to the crimes of the Holocaust and reproaching Dr F. specifically for his involvement. This was also true on the assumption that the statements constituted an expression of opinion and not a factual claim. Consequently, the weighing of all those considerations turned out in favour of Dr F.'s general right of personality, which in these circumstances prevailed over the applicant's freedom of expression.

17. As regards damages the Karlsruhe Regional Court reasoned that the violation of the right of personality and the associated stigmatising effect were particularly serious, given that Dr F. himself was Jewish and his family had suffered directly the Nazi atrocities in the Third Reich. Moreover, the court took into account that the applicant had persistently made these or similar statements and had not been dissuaded by orders to desist issued against him, such as the decision of the Karlsruhe Court of Appeal of 28 February 2007 (6 U 98/06) to which the website referred (see paragraph 11 above), or the inclusion of the website on the list of publications harmful to minors by the Federal Review Board.

18. By indicative order of 21 September 2010 the Karlsruhe Court of Appeal notified the applicant of its intention to dismiss his appeal owing to insufficient prospects of success. The court elaborated that the Regional Court's conclusion that the Austrian website had levelled the serious and personal allegation against Dr F. that he had performed acts of aggravated murder. The allegation had further involved comparing abortions to the extermination of Jews under Nazi rule. This had constituted a serious attack on Dr F.'s reputation and personality rights. The Court of Appeal also confirmed that the applicant had to assume responsibility for the content of the Austrian website. He had given the relevant content from his own website over to M.H. and had given his consent, by means of a link, for it to be posted on the Austrian website. Moreover, the award of monetary compensation was appropriate in the light of the severity of the interference with the general right of personality. The Regional Court had correctly taken into account, to the detriment of the applicant, that he had failed to observe the legally binding decision of the Karlsruhe Court of Appeal of 28 February 2007. The court further clarified that - for the purpose of determining the amount of compensation to be awarded - it was irrelevant whether Dr F. was Jewish and that his family had been persecuted under the Nazi regime. In support of that view, the court adjudged that there were no apparent indications that the applicant had had or should have had any such knowledge.

19. The applicant was provided with the opportunity to submit his position on the above reasoning, which he made use of to no avail. On 2 February 2011 the Karlsruhe Court of Appeal dismissed an appeal by the applicant without an oral hearing. It referred to its reasoning in the indicative order of 21 September 2010 and emphasised that the awarded damages had been justified irrespective of whether Dr F. was Jewish.

20. On 18 April 2011 the Federal Constitutional Court refused to admit a complaint by the applicant for adjudication for being inadmissible (1 BvR 798/11), without providing reasons.

II. RELEVANT DOMESTIC LAW AND PRACTICE

21. The relevant domestic law and practice have been set out in the Court's judgment in Annen (no. 2) (no. 3682/10, §§ 13 - 18, 20 September 2018).

THE LAW

ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION

22. The applicant complained that the civil injunction and the order to pay damages had violated his freedom of expression as provided in Article 10 of the Convention, which reads, in so far as relevant, 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 health or morals, for the protection of the reputation or rights of others ..."

A. Admissibility

23. The Court notes that this complaint is not 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

24. The applicant submitted that his statements had contributed to a public debate of great importance and had not been aimed at equating the inhuman killing by Nazi doctors to the medical activities performed by Dr F. However, mentioning the Holocaust had been aimed at having a warning effect. The applicant further argued that Dr F.'s faith had had no bearing on the criticism of his conduct, which he had also made in regard to doctors of other faiths. Moreover, the applicant put forward the argument that abortions could be considered aggravated murder, as maliciousness was defined as the exploitation of the victim's helplessness and lack of suspicion. In sum, he claimed that there had been no pressing social need for the injunction and the order to pay damages and, given his contribution to a public debate, Dr F.'s personality rights should not have been considered more important than his freedom of expression.

25. The Government accepted that the judgments of the domestic courts had constituted an interference with the applicant's freedom of expression. Nonetheless, they submitted that this interference had been based on Articles 823, 1004 of the Civil Code, pursued the legitimate aim of protecting the rights and reputation of Dr F. and had been ultimately justified. The courts had assessed the content of the websites with the help of screenshots in detail and had considered possible interpretations. However, they had come to the conclusion that, based on a realistic interpretation, the website had contained the general statement that the abortions performed by Dr F. had constituted acts of aggravated murder comparable with the mass murder of Jews under the Nazi regime. As Dr F. had been listed by name and address on the website, he had been indirectly labelled a "perverted doctor" and "murderer of unborn children" with a character comparable to a "concentration camp commander". Having regard to these serious allegations, the balancing exercise between the applicant's freedom of expression and Dr F.'s personality right had had to fall in favour of Dr F.'s rights. Moreover, the accusations had been of such a serious nature that they not only justified a civil injunction but had also an order to pay damages.

26. The Government also argued that the present case differed strongly from the case of Annen v. Germany (no. 3690/10, 26 November 2015) on a factual level. In the present case the applicant had made no reference to the actual legal situation regarding the criminal liability of abortions or to the fact that law and morals could differ from each other. Moreover, the statements comparing abortions to the Holocaust were not limited to the domain name "babycaust" of the website, but, inter alia , to explicitly equating doctors performing abortions to concentration camp commanders.

2. The third-parties' submissions

27. The third-party intervener ADF International submitted that, according to the Court's case-law, freedom of expression played an essential role in a democratic society and that even ideas that offend, shock or disturb were protected under Article 10. Particular protection was granted to expressions of opinions, which were made in the course of a debate on matters of public interest and the Court itself had recognised that the question of abortions raised moral and ethical issues of public interest. Furthermore, the Court had also recognised the special importance of advocacy groups in democratic societies and for public discussion. In sum, ADF International argued that restrictions on speech in this area could only be justified in the most extraordinary circumstances.

28. The third-party intervener Ordo Iuris Institute referred to the Court's well-established case-law according to which even ideas that offend, shock or disturb were protected by freedom of expression. It further argued that this case-law had been followed by Polish courts, which had accepted comparisons between abortion and genocide in the context of anti-abortion campaigns.

29. Dr F. submitted that the right to freedom of expression was subject to the limitations outlined in § 2 of Article 10 of the Convention. Therefore, freedom of expression could be restricted if it was necessary for the protection of the right of others. In particular when statements went beyond being polemical or exaggerated critique and solely pilloried someone, these statements no longer served a debate of public interest but constituted vilification. This held particularly true when doctors were accused of aggravated murder and their medical activities were compared with the unjustifiable annihilation of Jews in the Third Reich. The third party intervener further argued that the present case had to be clearly distinguished from Annen v. Germany (no. 3690/10, 26 November 2015) since the statements currently at issue clearly compared abortion with the Holocaust and it was not possible to understand them as merely generating awareness that law and morals could differ from each other.

3. The Court's assessment

30. At the outset, the Court considers - and this is not in dispute between the parties - that the injunction and the order to pay damages interfered with the applicant's right to freedom of expression, that the interferences were prescribed by law - namely Articles 823 and 1004 of the Civil Code - and that they pursued the legitimate aim of protecting the rights of others. It therefore remains to be determined whether the interferences were 'necessary in a democratic society'.

31. 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 ..."

32. 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).

33. 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).

34. Turning to the circumstances of the present case, the Court observes that the Regional Court classified the statements not as statements of fact but as expressions of opinion. The Court will therefore proceed on the assumption that the statements are to be considered value judgments and would reiterate in that regard that while the existence of facts can be demonstrated, the truth of value judgments is not susceptible of proof. However, 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).

35. The Court notes that the domestic courts concluded that the website contained the general statement that abortions, as performed by Dr F., were acts of aggravated murder. Given the applicant's statements such as "There is no other word for it: Abortion is 'aggravated murder'!" and "...we will stand firm in our conviction that the wilful 'bringing-to-death' of an innocent human being is aggravated murder" the Court agrees with that conclusion. The Court also takes note of the fact that the applicant argued before the Court that abortions could be considered aggravated murder within the meaning of Article 211 of the Criminal Code. However, it also observes that Article 218 of the Criminal Code clearly outlines the criminal liability of abortions that are not exempted from criminal liability under Article 218a of the Criminal Code and that there is no domestic case-law or other evidence in domestic law supporting the applicant's claim. In sum, the Court finds that there was not a sufficient factual basis for calling abortions as performed by Dr F. "aggravated murder". In that regard the Court also notes that these 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.

36. The Court further observes that the domestic courts additionally justified the injunction and the order to pay damages by the applicant's comparison of abortion with the Holocaust and the atrocities under the Nazi regime. The Court would reiterate that the impact an expression of opinion has on another person's personality rights cannot be detached from the historical and social context in which the statement was made and that references to the Holocaust must be seen in the specific context of German history (see Annen , cited above, § 63; Hoffer and Annen v. Germany (dec.), nos. 397/07, 2322/07, 13 January 2011).

37. In the Annen case the Court concluded that the Holocaust reference in the leaflet at issue alone could not justify a civil injunction since the applicant had not explicitly equated abortion with the Holocaust and his reference to the killing of human beings in Auschwitz could be understood as a way of creating awareness of the general fact that law may diverge from morality. However, the Court notes that the applicant's statements in the present case exceeded the ones examined in the context of the case of Annen and that the applicant equated doctors who performed abortions with concentration camp commanders and even stated that "Equating the Babycaust with the Holocaust would mean relativising today's abortion murders". In view of these statements the Court agrees with the findings of the domestic courts that the applicant had equated the medical activities of Dr F. to the utterly unjustifiable atrocities inflicted on Jews under the Nazi regime.

38. In sum, the Court considers that the applicant's statement had no sufficient factual foundation and severely violated Dr F.'s reputation. Consequently, the reasons adduced by the domestic courts were not only relevant but also sufficient to justify the interferences with the applicant's freedom of expression.

39. Lastly, the Court observes that the applicant was not criminally convicted for slander. As regards the civil injunction, the Court takes note of the fact that the applicant was not prevented from campaigning against abortions in general but only prohibited from describing abortions, as performed by Dr F., as aggravated murder. In so far as damages are concerned, the Court observed that the domestic courts elaborated in detail why the violations of Dr F.'s personality rights had been particularly serious and why they considered damages appropriate in the present case. While the Court accepts that this interference with the applicant's right to freedom of expression was more intense than in cases where he was only ordered to desist from making a specific statement, it considers that, based on the national courts' reasoning, the amount awarded to Dr. F did not fall outside their margin of appreciation.

40. In these circumstances the Court concludes that the injunction and the order to pay damages were not disproportionate to the legitimate aim pursued, and that the reasons given by the domestic courts were relevant and sufficient. The interference with the applicant's 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 Dr F. There has accordingly been no violation of Article 10 of the Convention.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the complaints concerning Article 10 of the Convention 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 Westerdiek Yonko Grozev
Registrar President