ANNEN v. GERMANY – JUDGMENT
17
persistently available online. Bearing in mind the need to protect the values
underlying the Convention, and considering that the rights under Articles 10
and 8 of the Convention deserve equal respect, a balance must be struck that
retains the essence of both rights. Thus, while the Court acknowledges that
important benefits can be derived from the Internet in the exercise of
freedom of expression, it is also mindful that liability for defamatory or
other types of unlawful speech must, in principle, be retained and constitute
an effective remedy for violations of personality rights (see Delfi AS, cited
above, § 110).
68. The Court notes, at the outset, that the Court of Appeal found that
the labelling of the doctors as “abortion doctors” on a website which was
called “www.babycaust.de" implied a connection between the doctors and
crimes which were, according to the applicant, comparable to the crimes
committed by the Nazis during the Holocaust. It thus concluded, in eight
lines of its relevant judgment, that the applicant had put the doctors’ actions
on a level with the Holocaust and with mass murder, and that this was not
covered by the applicant’s freedom of expression (see paragraph 19 above).
69. The Court further notes that the Court of Appeal considered that it
had not been necessary for the doctors to submit the exact content of the
website, as this website was generally accessible and its content was thus
known. Furthermore, the Court observes, and this was not contested by the
Government, that neither a description of the webpage’s exact content and
layout nor a screenshot was included in the domestic case files.
70. As to the judgment’s reasoning, the Court observes that the Court of
Appeal limited itself to finding that the same principles which had been
elaborated with regard to the leaflet should also apply to the website. The
domestic courts thus appear neither to have examined the content and the
overall context of the specific link “death or life”/“request for prayers for
Germany” under which the doctors’ names and professional address had
been published in an alphabetical list, nor to have interpreted the expression
“abortion doctors” against the background that abortions were in fact
performed at the day clinic.
71. The Court reiterates that its task is to review whether the national
authorities applied standards which were in conformity with the principles
embodied in Article 10 and, moreover, whether they relied on an acceptable
assessment of the relevant facts (paragraph 54 above). It further observes
that an examination of the case would therefore involve individual and
contextual assessment, with reference to the situation at the time when the
impugned publication was put online (compare Ringier Axel Springer
Slovakia, a. s. v. Slovakia, no. 41262/05, § 106, 26 July 2011; Ringier Axel
Springer Slovakia, a.s. v. Slovakia (no. 3), no. 37986/09, §§ 83, 84,
7 January 2014).
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