Case Summary and Outcome

The European Court of Human Rights held that an injunction on the distribution of pamphlets and a website which named doctors involved in abortions and which implicitly compared abortion to the holocaust was a violation of the right to freedom of expression. The Court found that the domestic courts had failed to distinguish the impact of publication on the internet from the impact of a pamphlet, and that the applicant had correctly stated that abortion was technically unlawful under the complicated laws in force in Germany. The application had been made by an anti-abortion campaigner who had handed out leaflets outside an abortion day-clinic and named doctors on a website, www.babycaust.de.

Facts

The applicant, an anti-abortion protestor, had distributed leaflets outside an abortion clinic alleging that the abortions performed there were unlawful and akin to the murders committed at Auschwitz during the holocaust.  The pamphlets linked to a website, “www.babycaust.de,” and named doctors at the clinic. Two doctors applied for an injunction, which was granted by the Ulm regional court on the grounds that the abortions were within the law and thus did not constitute murder.

An appeal to the Stuttgart Court of Appeals was unsuccessful, the court holding that without going into the question of whether the allegation of “murder” was to be taken literally, the applicant had created a massive pillory effect by singling out the plaintiffs. The court opined that the applicant could have expressed his general criticism of abortion without singling out the doctors. Further appeals to the Federal Court of Justice and the Federal Constitutional Court were refused.

A year later, another set of proceedings came before the Constitutional Court involving the same applicant. This was an appeal of an injunction granted by courts in Munich with regard to a separate clinic, preventing the Applicant from distributing pamphlets and publishing another doctor’s information on the website. The Constitutional Court found that this injunction had violated the applicant’s right to freedom of expression as the doctors involved had not suffered any damages in the form of loss of business or reputation.

Decision Overview

The European Court of Human Rights examined whether the injunction with regard to the first set of pamphlets and the website violated the applicant’s right to freedom of expression, focusing on whether they could be considered to be necessary in a democratic society.

The applicant had argued that his statements in both the pamphlet and on the website were true and concerned a matter of public interest, and that he had not specifically singled out the doctors – the website named many others. The German government countered that a reasonable person reading over the pamphlet would conclude that the doctors were performing illegal abortions, and that a prohibition on publishing their names and addresses of necessary to protect their privacy rights. The government noted the graphic images used and statements comparing abortions to the holocaust.

Two NGOs, the Alliance Defending Freedom and Aktion Lebensrecht Für Alle, submitted briefs arguing that abortion was an issue of great public interest and concern, and that debate on abortion was often characterized by strong language on both sides. They argued that the protection of personality rights – a right which they argued was not found in the Convention – was not a sufficient reason for interfering with the freedom of speech of pro-life groups. A third NGO, the European Centre for Law and Justice, also submitted a brief, arguing that the comparison to the holocaust was customarily made in the abortion debate and that the applicant had simply pointed out the difference between legality and justice.

Analyzing these arguments, the Court first restated its general principles on the importance of the right to freedom of expression in a democratic society. The Court also noted that Article 8 of the Convention does protect reputation and the right to respect for private life, the personality right referred to by the German courts, but that for this to come into play allegations “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”. [para. 54] The Court emphasized that when domestic courts balance the right to privacy and the right to freedom of expression in conformity with the criteria laid down in its case-law, it would “require strong reasons to substitute its view for that of the domestic courts”. [para. 57]

Turning to the facts of the case, the Court examined separately the injunction on the website and on the pamphlets. With regard to the pamphlets, the Court found that the injunction violated the applicant’s right to freedom of expression. It took into account that the statement that the abortions being performed were unlawful was technically true under German law; and that the pamphlet explained the legal detail that while unlawful, the abortions were not subject to criminal liability. This distinguished the case from an earlier application to the Court by the applicant in which he had distributed leaflets which had bluntly said abortions to be ‘unlawful’. While the Court accepted that the doctors had been singled out because the pamphlets were handed out outside their clinic, this was justified because of the importance of the issue. The Court noted that “the applicant’s choice of presenting his arguments in a personalised manner, by disseminating leaflets indicating the doctors’ names and professional address in the immediate vicinity of the day clinic, enhanced the effectiveness of his campaign” and pointed out that there could be “no doubt as to the acute sensitivity of the moral and ethical issues raised by the question of abortion or as to the importance of the public interest at stake”. [para. 62] While the clinic had been closed following the protests, it was not known whether this was as a direct result of the campaign and the doctors had not lodged a claim for  compensation. The Court also noted that the applicant had only implicitly equated abortion with the holocaust and that this alone could not justify the injunction – even in the context of Germany, where mention of the holocaust was obviously a sensitive issue.

With regard to the website, the Court found that the domestic courts had erred with respect to their analysis of the law. They had applied the same principles to the site as to the pamphlet without taking into account the different nature of the internet as a medium. This was a procedural error which also resulted in a violation of Article 10. The Court noted that the domestic courts should have taking into consideration factors such as “the exact content, the overall context and the specific layout of the applicant’s webpage [as well as] the doctors’ previous behaviour, for example whether they themselves had publicly announced on the Internet that abortions were performed in the day clinic”; and “the impact of the applicant’s statement on third parties and whether or not it was likely to incite aggression or violence against the doctors”. [para. 72]

In a dissenting opinion, Judges Yudkivska and Jäderblom argued that the injunction did not violate the right to freedom of expression as it was narrow in scope. They argued furthermore that although the leaflets and the website did not explicitly “single out” the two doctors they had had that effect, and had discouraged people from coming to their clinic by calling the abortions unlawful even though that was “legally correct.”