16
ANNEN v. GERMANY - JUDGMENT
to the Nazi regime. In fact, the applicant’s statement according to which the
killing of human beings in Auschwitz had been unlawful, but allowed, and
had not been subject to criminal liability under the Nazi regime, may also be
understood as a way of creating awareness of the more general fact that law
may diverge from morality. Although the Court is aware of the subtext of
the applicant’s statement, which was further intensified by the reference to
the webpage “www.babycaust.de”, it observes that the applicant did not – at
least not explicitly – equate abortion with the Holocaust. Thus, the Court is
not convinced that the prohibition of disseminating the leaflets was justified
by a violation of the doctors’ personality rights due to the Holocaust
reference alone.
64. Having regard to the foregoing considerations and, in particular, the
fact that the applicant’s statement, which was at least not in contradiction
with the legal situation with regard to abortion in Germany, contributed to a
highly controversial debate of public interest, the Court, in view of the
special degree of protection afforded to expressions of opinion which were
made in the course of a debate on matters of public interest (see
Tierbefreier e.V. v. Germany, no. 45192/09, § 51, 16 January 2014 with
further references) and despite the margin of appreciation enjoyed by the
Contracting States, comes to the conclusion that the domestic courts failed
to strike a fair balance between the applicant’s right to freedom of
expression and the doctors’ personality rights.
65. There has therefore been a breach of Article 10 of the Convention in
respect of the order to desist from further disseminating the leaflets.
(ii) Order to desist from mentioning the doctors’ names and address in the list of
“abortion doctors” on the website
66. With regard to online publications, the Court has previously held
that in the light of its accessibility and its capacity to store and communicate
vast amounts of information, the Internet plays an important role in
enhancing the public’s access to news and facilitating the dissemination of
information in general (see Delfi AS, cited above, § 133 with further
references). The Court also reiterates the Internet’s importance for the
exercise of the right to freedom of expression generally (see Times
Newspapers Ltd v. United Kingdom (nos. 1 and 2), no. 3002/03 and
23676/03, § 27, 10 March 2009). At the same time, the risk of harm posed
by content and communications on the Internet to the exercise and
enjoyment of human rights and freedoms, particularly the right to respect
for private life, is certainly higher than that posed by the press (see Editorial
Board of Pravoye Delo and Shtekel v. Ukraine, no. 33014/05, § 63, ECHR
2011 (extracts)).
67. Defamatory and other types of clearly unlawful speech, including
hate speech and speech inciting violence, can be disseminated as never
before, worldwide, in a matter of seconds, and sometimes remain
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