Defamation / Reputation, Political Expression
Malema v. Rampedi
Closed Contracts Expression
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The European Court of Human Rights found no violation of the right to freedom of expression in a case involving anti-abortion activists distributing pamphlets outside a medical centre, stating “Then: Holocaust /Today: Babycaust” and describing Dr.F. as a “Killing specialist for unborn children”. Specifically, the Court found that that the fines imposed by the German courts against the activists were appropriate because of the extreme violation of the personality rights of the Doctor. The Court also found there was a violation of Article 6 of the Convention because the proceedings before the Federal Constitutional Court lasted six and a half years, which exceeded the reasonable time requirement.
This case involves two applications brought by Ms Collene Hoffer and Mr Klaus Annen for violation of article 10 of the European Convention. Both applicants alleged “that their criminal convictions for defamation violated their right to freedom of expression and that the length of the proceedings before the Federal Constitutional Court was in breach of the ‘reasonable time’ requirement of Article 6.” [para 3]
The applicants, anti-abortion activists, distributed pamphlets in front of a Nuremberg Medical Centre equating abortions to the holocaust. The pamphlets also named a doctor at the clinic, Dr. F., describing him as a “Killing specialist for unborn children”. The city of Nuremberg, on behalf of the medical centre and the Doctor that worked there, brought criminal charges for defamation. The Nuremberg District Court acquitted the applicants, finding their conduct was protected under their right to freedom of expression, and this outweighed the doctor and the medical centre’s interest in protecting their reputation.However, on appeal, The Nuremberg regional court held that the statement “Then: Holocaust /Today: Babycaust” had to be interpreted as putting the lawful activity of Dr. F. on a level with the Holocaust, qualifying him as a mass murderer, which amounted to abusive insult. The applicants were convicted of defamation and fined. The Regional Court found all the other statements in the pamphlet to be protected speech under freedom of expression standards. The Regional Court fined the applicants. The Bavarian Court of Appel rejected the appeal. The Federal Constitutional Court held that the Statement did not qualify as abusive insult, but that the Regional Court had duly weighed the conflicting interests. Followed several back and forth between the Nuremberg court of appeal and the Nuremberg regional court regarding the re-assessment of the fines. On 25 September 2008 the Nuremberg Regional Court re-assessed the sentences and imposed fifteen daily fines of 10 EUR each on the first applicant and ten daily fines of 10 EUR each on the second applicant,
The European Court ruled that there had been no violation of article 10 of the Convention, which protects the right to freedom of expression.
The applicants argued the Federal Constitutional Court erred in allowing the personality rights of the Doctor to prevail over the applicant’s freedom of expression and that the “conviction was not necessary in a democratic society.” [para. 35]. The government countered that the interference of freedom of expression was necessary in a democratic society, and that the Federal Constitutional Court had correctly weighed the rights of the Doctor with the applicant’s rights to freedom of expression.
The Court noted there was no debate that the convictions amounted to an interference with the applicant’s rights to freedom of expression. The issue for the Court was whether this interference was prescribed by law and whether it was necessary in a democratic society. Under the Criminal Code, the applicants were aware of the potential conviction for defamation and therefore the Court found the convictions were prescribed by law. The Court thus turned its attention to whether the interference was necessary and satisfied a pressing social need. The Court limited its analysis to the statement in the pamphlet, “Then: holocaust / today: Babycaust” as the Regional Court had found the other statements contained in the pamphlet involved matters in the public interest which were protected under the applicants freedom of expression rights. The European Court observed in Par. 48 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. The reference to the Holocaust must also be seen in the specific context of the German past. The European Court therefore accepted the German courts’ conclusion that the impugned statement constituted a very serious violation of the physician’s personality rights. Next, the Court turned to whether there had been a violation of Article 6 of the Convention, which protects against legal proceedings exceeding a “reasonable time” requirement. The period complained of was the proceedings before the Federal Constitutional Court which lasted for six and a half years (from January of 2000 to June of 2006). When determining the reasonable time requirement the Court took into account the following factors: “the complexity of the case, the conduct of the applicants and the relevant authorities and what was at stake for the applicants in the dispute.” [para. 55]. The Court found in light of all the circumstances that this case had exceeded the reasonable time requirement. Accordingly, the Court found a violation of Article 6.
The applicants raised several other ancillary arguments which the Court rejected. Finally, under Article 41 of the Convention, the Court awarded each applicant EUR $4,000 for non-pecuniary damages for the violation of Article 6. The Court also awarded the applicants partial costs in the amount of EUR $1,000 per applicant.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
ECHR Commentators and Experts have largely questioned the decision on several grounds. FIRST, the Strasbourg Observers pointed out that the applicants were entitled to use provocative language to convey their disapproval of abortion, and it is to be expected that pamphlets will use such language. This is in keeping with a precedent established by the Court in Steel and Morris v. The United Kingdom where the Court laid down three pertinent principles: (i) that in a campaigning leaflet a certain degree of hyperbole and exaggeration is to be tolerated, and even expected (para. 90); (ii) that campaign groups play a legitimate and important role in stimulating public discussion (para. 95); and (iii) that there exists a strong public interest in enabling campaign groups outside the mainstream to contribute to public debate on matters of public interest (para. 89). SECOND, Comparing abortion to the Holocaust is a value-judgment, not susceptible to proof. It is not for a court to determine the reasonableness of this view, and punish a person for holding such a view. THIRDLY, a criminal conviction, even in the form of a small fine, creates a significant chilling effect on freedom of expression. FOURTHLY, Hugh Tomlinson suggested that “the leaflet did not threaten or incite violence and, despite its strong language, it was clearly intended to form part of political debate on the abortion issue. While a criminal conviction might have resulted on similar facts in the United Kingdom, there is a strong argument that this kind of conduct should not be criminalised and that a violation should have been found by the Court of Human Rights.”
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