December 15, 2015
By Corina Heri
On 26 November 2015, the ECtHR published the Fifth Section’s judgment in Annen v. Germany. The majority in that case found a violation of the applicant’s freedom of expression under Article 10 ECHR by an injunction that prohibited him from distributing anti-abortion leaflets outside a day clinic and from publishing the names and address of two doctors on his website. The following will argue that the female perspective was entirely missing from the majority’s judgment, in three main regards.
The Facts of the Case
The applicant in Annen, who campaigns against abortion, distributed leaflets in the immediate vicinity of a day clinic run by Dr. M. and Dr. R., including in all the nearby mailboxes, on two weekdays in July 2005. The front page of the leaflet featured the full names of the doctors and the address of their clinic, stating that unlawful abortions were being performed at that location. A text set in smaller type followed, explaining that these procedures were not subject to criminal liability under German law. This reflects the fact that the relevant provision of the German criminal code, which penalizes abortion in Section 218, creates an exception to criminal liability for that act under the conditions set out in Section 218a.
The leaflets also stated that “[t]he murder of human beings in Auschwitz was unlawful, but the morally degraded NS-State allowed the murder of innocent people and did not make it subject to criminal liability”. The leaflet further referred to the applicant’s website, ‘www.babycaust.de’, which featured a list of so-called ‘abortion doctors’ that included Dr. M. and Dr. R.’s day clinic along with their full names.
Dr. M. and Dr. R. filed a request for a civil injunction against Mr. Annen, submitting that the procedures performed at their clinic were legal and that the leaflet had created an impression to the contrary. The Ulm Regional Court granted the injunction, ordering the applicant to desist from distributing leaflets containing the names of the applicants and allegations of unlawful conduct in the immediate vicinity of the clinic. It also ordered the applicant to remove the names and address of Dr. M. and Dr. R. from his website. According to the Regional Court, the applicant’s leaflet – considering its layout – incorrectly alleged that the day clinic performed illegal abortions. The court also found that, by singling out two doctors who had not given him reason to do so, Mr. Annen had created a “pillory effect” and seriously interfered with the personality rights of Dr. M. and Dr. R.
The same reasoning applied to the online list, the court held, which implied a connection between the doctors and the Holocaust. Mr. Annen’s appeal was rejected, with the Court of Appeal confirming that the leaflet created the impression that unlawful practices were taking place at the clinic. Even though freedom of expression includes the right to express offensive, shocking or disturbing opinions, that instance held, and there was a presumption in favor of opinions expressed in the context of a debate of public interest, the applicant had created a “pillory effect”, which was aggravated by the Holocaust reference. The applicant’s further appeals were unsuccessful.
At an unspecified point in time, Dr. M. and Dr. R. closed their practice, allegedly due to the negative public attention they had faced.
The Majority’s Judgment
The Court recalled that freedom of expression applies not only the expression of inoffensive information or ideas but also to those that offend, shock or disturb. There is thus little scope under Article 10 for restricting political expressions or debate in matters of public interest (§§ 52 and 53 of the judgment). However, a person’s rights under Article 10 can be restricted in order to protect the rights of others, including their right to the protection of their reputation, which falls under Article 8 ECHR.
Concerning Mr. Annen’s complaint, the Court noted that the domestic instances had acknowledged that his leaflet addressed questions of public interest and had held that he could use exaggerated and polemic statements in pursuing his political aims. The German courts had also found that there was an assumption in favour of freedom of expression in cases of this kind. The Court determined, however, that Mr. Annen’s statement that the clinic performed “unlawful abortions” was correct from a legal perspective and that the leaflet’s explanation on this matter was clear, even to a layperson (§ 61). The Court held that the applicant’s choice of location for the distribution of his leaflets had enhanced his campaign’s effectiveness, that he had contributed to a controversial debate of public interest that raised sensitive issues, and that it had not been proven that the day clinic had closed as a result of his actions (§ 62).
The Court also examined the wording of the leaflet, finding that the applicant had not equated abortion with the Holocaust. As a result of these considerations, the Court found that the domestic instances had failed to strike a fair balance between the rights of the applicant and the personality rights of the doctors; the applicant had therefore suffered a violation of Article 10. Regarding the order to remove the doctors’ names and address from the applicant’s website, the Court held that there had been a violation of the procedural principles enshrined in Article 10 in this regard as the domestic courts had not distinguished between the statements in the leaflet and those made online, and had failed to address the website specifically.
Joint Dissenting Opinion of Judges Yudkivska and Jäderblom
Judges Yudkivska and Jäderblom dissented from the majority’s judgment, making a series of important arguments against the two violations of Article 10 found in the case. Inter alia, the judges argued that the applicant’s campaign would have deserved strong protection under Article 10 if it had been aimed at policy-makers, but that here there was no public interest in the applicant’s statements, which were misleading and demonized the doctors.
They also argued that patients may have been put off from seeking the services of the two doctors given that their work was associated with the word “unlawful”, and that the closing of the day clinic deprived women of accessing the wide spectrum of reproductive health services offered there. The judges went on to argue that the scope of the injunction both regarding the website and the leaflet was narrow, and therefore did not place an excessive burden on the Mr. Annen. The dissenters also noted that “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.” In conclusion, they held that while the applicant should be free to distribute leaflets and online content critical of abortion in general, the domestic authorities had legitimately limited his right under Article 10 where his activities were aimed at “the continued destruction of the professional reputation of two doctors.” As a result, they considered that the balance struck by the domestic authorities between the competing interests at stake was a fair one.
The arguments made by the dissenters in this case highlight a rather glaring omission in the majority judgment, namely the failure to incorporate a female perspective. Of course, this myopic view may be ascribable to the nature of the submissions made by the parties to the case. However, given the need for consistency in the outcomes of cases brought from different perspectives, as underlined by the majority itself (§ 56), the Court cannot ignore this point. In exploring the significance of this omission, it is interesting to compare Annen to another case under Article 10, Van den Dungen v. the Netherlands. The Commission’s admissibility decision in that case, which is similar to Annen on the facts, found that an injunction on anti-abortion campaigning in the vicinity of an abortion clinic was proportionate to the aim pursued because it did not aim to deprive the applicant of his Article 10 rights, but merely restricted them in a geographically and temporally limited manner to protect the clinic, its employees and patients (§ 2). As a result, the Commission found that the Article 10 complaint made in that case was manifestly ill-founded.
The Court reached a similar conclusion in previous applications brought by Mr. Annen, but – as the above summary has shown – it took a different approach in the present case. Here, the Court found that the domestic authorities failed to strike a fair balance between the applicant’s right to freedom of expression and the personality rights of the doctors. In doing so, it did not consider the rights of a third group of individuals involved: the clinic’s patients. The following will point out three main points that the majority neglected to consider.
First, it seems that the dangers of demonizing abortions and the medical personnel who perform them have gone unnoticed by the majority. Some of the more severe potential risks that anti-abortion campaigning poses to women’s safe and unencumbered access to abortion become clear when one considers, for example, the related violence seen in the United States context and the extreme number of conscientious objections amounting to a de facto denial of access seen in Italy. In short, unchecked anti-abortion campaigning entails the risk of frustrating women’s right to safely and consistently access a legally available medical procedure. Precisely because abortion continues to be a controversial and divisive topic, these aspects are also too important to simply ignore.
Second, the effect of the applicant’s actions on the patients themselves must be considered. The Court has previously recognized that pregnant women are in a situation of great vulnerability, and held that feelings of anguish and uncertainty regarding the health of their foetus or their own health may violate their Convention rights under Articles 3 and 8 ECHR. While the past case-law has concerned the State failure to provide access to information and medical services, the vulnerability of pregnant women underscores the importance of taking their interests into consideration when evaluating the conformity of the injunction against Mr. Annen with the Convention. Pregnant patients who are confronted by an anti-abortion campaigner, told that they are about to undergo an ‘illegal’ procedure and faced with comparisons between abortion and murder will likely experience significant distress that exacerbates the intrinsically psychologically demanding nature of the procedure. For one, the idea of illegal abortions connotes a lack of safety. Furthermore, it is worth noting that Mr. Annen distributed leaflets in all of the mailboxes in the vicinity of the clinic, thus creating a “pillory effect” not only vis-à-vis the doctors but also, though on a more limited scale, with respect to their vulnerable patients.
Third, the dissenters have convincingly argued that the nature and context of the applicant’s expression must be taken into account. The fact that the applicant was not lobbying policy-makers for a change in the legislation that permits abortion, but was instead harassing individual doctors and their patients, is indeed relevant for present purposes. The applicant’s right to contribute to the public debate on abortion rights, which is a morally divisive one and a matter of public interest, even where his opinion is shocking or offensive, is not in question. At issue here is the targeting of a particular clinic and the publication of specific doctors’ personal details. While the domestic instances unanimously found that the leaflet created a “pillory effect”, misrepresented the facts and infringed the personality rights of the doctors, the Court supplanted the balance between the rights of the applicant and the doctors struck by the domestic instances with its own assessment. Why it chose to do so despite the margin of appreciation granted to the State in this regard is unclear.
On this last point, a further aspect of the case must be pointed out. In Peta Deutschland v. Germany, the Court found that the instrumentalization of the Holocaust by an animal rights organization had violated the personality rights of its survivors, and took into account the “specific context of the German past” by deferring to fact that the authorities considered themselves to be “under a special obligation towards the Jews living in Germany”. Given that the German courts had taken an analogous position in the present case, it is difficult for the reader to understand why the Court imposed its own assessment of the Holocaust references made by the applicant over that of the domestic authorities.
The above has shown three points regarding which the majority displayed a rather myopic and decontextualized take in the Annen judgment. In particular, the judgment downplays the rights of the women necessarily affected by the facts at hand. As a whole, Annen – which presents a strong case for deference to the domestic margin of appreciation – reads more like a fourth instance judgment than as an example of subsidiary European supervision.
 Annen (II) v. Germany, nos. 2373/07 and 2396/07, Decision of 20 March 2010; Annen v. Germany, no. 55558/10, Decision of 12 February 2013.
 In the latter vein, it is worth noting that the German Law on Conflicts in Pregnancy, which requires the Bundesländer to ensure that a sufficient number of health service providers offer access to abortion, also stipulates that no person is obligated to perform a medically non-indicated abortion (‘Gesetz zur Vermeidung und Bewältigung von Schwangerschaftskonflikten’ (Law on Conflicts in Pregnancy) of 27 July 1992 (BGBl. I S. 1398), last amended by Article 14 No. 1 of the Law of 20. October 2015 (BGBl. I S. 1722), §§ 13(2) and 12).
 Regarding Article 3, see R.R. v. Poland, no. 27617/04, Judgment of 26 May 2011, Reports 2011-III (extracts), §§ 151 and 159. Regarding Article 8, see Tysiąc v. Poland, no. 5410/03, Judgment of 20 March 2007, Reports 2007-I, §§ 114-130.