Summary:

I.

The complainant regards abortions as reprehensible on the grounds of his religious convictions. He regularly organises protests against gynaecologists who carry out pregnancy terminations. For this purpose, he stands in the street near the respective doctor’s practice and uses posters and leaflets to draw attention to his opinion on the subject of abortion. He also addresses passersby, especially those whom he believes to be possible patients of the respective gynaecologist. He then attempts to persuade them to re-consider their stance on abortions.

In the present case, the complainant positioned himself in front of a gynaecologist’s practice on two occasions. According to the findings of the regular courts, the gynaecologist concerned performed pregnancy terminations as part of his medical practice at that time, and also made this information available on the internet. The complainant distributed leaflets stating that the doctor carried out “illegal abortions ... which, however, are permitted by the German legislature and are not criminal offences”. The complainant also operates a website on which he listed the relevant gynaecologist as an “abortion doctor”. In response, the gynaecologist concerned instituted civil proceedings against the complainant for an order to cease and desist.

The Regional Court (Landgericht) found in favour of the plaintiff. It ordered the complainant to cease and desist from

– referring in public to the fact that the plaintiff, identifiable by name or otherwise, performed pregnancy terminations, or to the fact that pregnancy terminations were carried out in the plaintiff’s practice

– addressing patients of the plaintiff or passersby within a radius of one kilometre from the plaintiff’s current paractice and from referring expressly or implicitly to abortions being carried out in the practice.

The Regional Court found that the complainant’s demonstrations constituted an unlawful interference with the plaintiff’s general right of personality, and that the plaintiff was therefore entitled to the cease-and-desist order sought, pursuant to §§ 823.1, 1004 of the German Civil Code. The Higher Regional Court (Oberlandesgericht) rejected the complainant’s appeal on questions of fact and law.

II.

The First Chamber of the First Senate of the Federal Constitutional Court accepted the constitutional complaint for decision, reversed the decisions of the civil courts and remanded the matter to the Regional Court.

In essence, the Court’s decision is based on the following key considerations:

The statements, which the complainant was ordered to cease and desist from, are true statements of fact. They do not touch the plaintiff’s sphere of intimacy, which enjoys particular protection, nor his sphere of privacy, but merely state events relating to the plaintiff’s social sphere. Such statements must, in principle, be tolerated. As a general rule, they only cross the threshold of violating the right of personality if they give rise to the fear that damage to one’s personality will be suffered, and that such damage would be disproportionate to the interest in the disseminating of truth. However, measured against constitutional law, the decisions challenged do not provide sound reasons establishing such a serious interference with the plaintiff’s general right of personality. In particular, it is not discernible that the gynaecologist concerned was at risk of suffering an extensive loss of social respect in the event that his willingness to perform pregnancy terminations became a subject of public discussion. Arguing against such risk is the fact that he was accused not of a criminal offence or other unlawful activity, but merely of an activity that was considered morally reprehensible in the personal opinion of the complainant. In addition, the gynaecologist himself had made the information, the he was performing abortions, available to the public.

Moreover, the regular courts also failed to take sufficient consideration of the fact that the complainant, by drawing attention to pregnancy terminations, had addressed a topic of considerable public interest. In the necessary weighing of interests, this increases the importance accorded to the complainant’s interest in making such statements, vis-à-vis the rights of the affected gynaecologist.

In the challenged decisions, the courts also referred, by way of supplementary reasoning, to the effects of the statements in question as regards the doctor-patient relationship. Yet, these considerations are not sufficient to sustain the challenged decisions under constitutional law either. This notwithstanding, the consideration, that patients who have to walk passed the complainant in order to reach the doctor’s practice feel as if they were running the gauntlet as a result of the protest campaign, constitutes an important aspect to be taken into account. While Article 5.1 of the Basic Law does protect the expression of opinions, such protection does not extend to activities which are designed to force others – by coercive means – to subscribe to a specific opinion. Therefore, it cannot be ruled out that, in the individual case, this consideration – together with the resulting interference with the confidential relationship between doctor and patient, which enjoys particular legal protection­ ­– could serve as a constitutional basis for prohibiting particular forms of protest. In any case, however, it does not justify a prohibition as broad as the one applied in the present case.

Possible harassment of patients, which touches on the doctor’s fundamental right of occupational freedom under (Article 12.1of the Basic Law) cannot be invoked as a basis for prohibiting any statement referring to pregnancy terminations within a one-kilometer radius from the practice where they are carried out – irrespective of whether the location where such statements are made is one which patients have to pass –, let alone as a basis for further prohibiting any conduct addressing such topic by means other than express reference.