Defamation of a doctor who was involved in cell research that he resembles to a Nazi criminal and the freedom of expression

JUDGMENT

Annen v. Germany  18.10.2018 (n. 6) (no. 3779/11)

see here   

SUMMARY

An anti-abortion activist was opposed to cell research and likened a web-based researcher to those who experimented with humans during the Nazi era, suggesting that the behavior of scientists carrying out stem cell research is equivalent to the atrocities committed by the Nazis. A fine was imposed on him by the criminal courts for defamation (450 euros fine). The European Court of Human Rights considered that the applicant’s statements were particularly serious, shocking and offensive and required a particularly strong real basis. The Court has found no violation of freedom of expression

PROVISION 

Article 10

PRINCIPAL FACTS

The applicant, Klaus Günter Annen, is a German national who was born in 1951 and lives in
Weinheim (Germany). He is a campaigner against abortion.

The case concerned Mr Annen’s criminal conviction for insult.

Mr Annen published a press release online in December 2007, criticising stem-cell research and a
group of scientists researching at the University of Bonn. He mentioned one professor by name and
compared the research to experiments on humans under the Nazi regime.

In November 2008 the domestic courts found that Mr Annen had insulted the professor by
comparing the scientist to doctors conducting experiments on humans in concentration camps and
sentenced him to 30 daily fines of 15 euros each. His appeals against that conviction were ultimately
dismissed by the Court of Appeal in February 2010.

Relying on Article 10 (freedom of expression) of the European Convention on Human Rights,
Mr Annen complained that his criminal conviction for insult had interfered with his freedom of
expression without being justified by the protection of the professor’s personality rights. His press
release had sought to contribute to a public debate and not to personally attack the professor. In the
applicant’s view the domestic courts had not taken full account of the fact that the professor had
acted as a spokesperson for the scientists and had therefore already been part of the public debate

THE DECISION OF THE COURT

The Court observes that the domestic courts understood the text of the press release as implying that the conduct of the scientists carrying out stem-cell research, and in particular of Prof. B., was seen as equivalent to the atrocities committed by the Nazis. The applicant challenged this understanding of his press release. The Court notes, however, that the applicant’s press release contained a series of comparisons between modern-day stem-cell research and experiments carried out on humans during the Nazi regime, which culminated in the sentence “The time has finally arrived to overcome the spirit of Auschwitz!!”. Given these statements, the Court sees no reason to call into question the domestic courts’ conclusion that the applicant did indeed directly link the work of the scientists – and in particular of Prof. Dr B. – to the atrocities during Nazi times. The Court further notes that the allegations made by the applicant were particularly serious. Even if, as in the instant case, regarded as value judgment, such serious and particularly offensive comparisons demand a particularly solid factual basis (compare Genner, cited above, § 46). While the Court accepts that the moral responsibility of scientists was the issue discussed, this alone does not provide a solid factual basis for targeting personally Prof. B.’s scientific work, this all the more so as the comparison used was not only shocking and disturbing but went beyond the limits of any acceptable criticism.

The Court also notes that the domestic courts concluded that the focus of the press release had been on “the issue” and had sought to contribute to a public debate, rather than defaming the individual doctor. It accepts this finding but would add that the applicant nonetheless made allegations against the scientists and doctors conducting stem-cell research, and in particular against Prof. Dr B. The Court therefore finds that even though the intention behind the applicant’s press release was not mainly to defame the scientists, by naming Prof. Dr B. it still had a stigmatising and defaming effect.

In regard to the seriousness of the personal attack on the scientists and Prof. Dr B., the Court reiterates 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 comparison of modern-day stem-cell research to experiments carried out on humans in concentration camps must therefore be seen in the specific context of German history. The Court has previously accepted that in the light of their historical role and experience, States which have experienced the Nazi horrors may be regarded as having a special moral responsibility to distance themselves from the mass atrocities perpetrated by the Nazis.  The Court therefore concludes that the attack on Prof. Dr B.’s reputation was serious and that the historical context is a weighty factor to be taken into account when assessing whether there existed a pressing social need for interfering with the applicant’s right to freedom of expression.

The Court also observes that Prof. Dr B. and the other scientists had – by responding to the criticism voiced by Bishop F. – entered the public debate concerning stem-cell research before the publication of the applicant’s press release and therefore finds that they could not claim the same particular protection as individuals completely unknown to the public.

Notwithstanding the facts that the applicant’s statements sought to contribute to a public debate and that Prof. Dr B. had entered the public stage to a certain degree, the Court concludes that the domestic courts provided relevant and sufficient reasons for the criminal conviction of the applicant. The Court recalls that where the balancing exercise has been 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. It finds that the decisions by the domestic courts were based on a reasonable assessment of the statements in question, the rights of Prof. Dr B. and of the circumstances of the present case

Lastly, the Court observes that the sanction was criminal in nature, which is – in view of the existence of other means of intervention and rebuttal, particularly through civil remedies – one of the most serious forms of interference with the right to freedom of expression. While the use of criminal‑law sanctions in defamation cases is not in itself disproportionate, the nature and severity of the penalties imposed are factors to be taken into account, because they must not be such as to dissuade the press or others who engage in public debate from taking part in the discussion of matters of legitimate public concern. In that regard, it notes that the applicant was sentenced to a penalty of 30 daily fines of EUR 15 each and thereby to a sentence at the lower end of the possible criminal sanctions for insult. Having regard to the seriousness of the violations of Prof. Dr B.’s personality rights and the nature of the personalized attacks, when seen in the historical context,  the Court finds that the penalty appears moderate and did not fall outside of the domestic courts’ margin of appreciation.

33. There has accordingly been no violation of Article 10 of the Convention(echrcaselaw.com editing). 


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