12
ANNEN v. GERMANY - JUDGMENT
3. The Court’s assessment
50. The Court considers, and it was not disputed by the Government,
that the civil injunction issued by the national courts amounted to an
“interference” with the applicant’s right to freedom of expression as
guaranteed by Article 10 of the Convention. Such interference will infringe
the Convention if it does not satisfy the requirements of paragraph 2 of
Article 10. It should therefore be determined whether it was “prescribed by
law”, whether it pursued one or more of the legitimate aims set out in that
paragraph and whether it was “necessary in a democratic society” in order
to achieve those aims.
51. The Court finds, and this is common ground between the parties, that
the interference was prescribed by section 823 § 1 in conjunction with
section 1004 § 1 of the Civil Code (see paragraphs 29 and 30 above), and
that the Civil Courts’ decisions were designed to protect “the reputation or
rights of others”, namely the reputation and personality rights of Dr M. and
Dr. R. The parties disagree, however, as to whether the interference was
“necessary in a democratic society”.
(a) General principles
52. 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.