6.  The applicant was born in 1951 and lives in Weinheim. He is a campaigner against abortion and operates an anti-abortion website on which he campaigns, occasionally in a very graphic way, against abortion.
7.  By a decision of 1 March 2007 the Federal Review Board for Publications Harmful to Minors (Bundesprüfstelle für jugendgefährdende Schriften) included the applicant’s website, www.babycaust.de (“the German website”), on the list of publications considered to be harmful to minors. The applicant subsequently redesigned his online presence. His new website included a link in bold type to the website www.babycaust.at, (“the Austrian website”) which was operated by M.H. – since deceased, described by the applicant on his current website as a “dear friend and fellow campaigner”. Attached to the link to the Austrian website was the following comment:
“If you want to know more about the modern-day, democratic crime of ‘abortion’, make your enquiries in Austria.” (Wenn Sie mehr über das modern demokratische Verbrechen der ‘Abtreibung’ wissen wollen, dann fragen sie in Österreich nach).
8.  At the material time, the content of the Austrian website was essentially consistent with that of the German website prior to the objection from the Federal Review Board. In addition, the Austrian website contained a link to a version of the applicant’s complete German website as it had originally existed prior to the Federal Review Board’s objection. Only the website credits had been deleted. The applicant had provided M.H. with a CD containing all the data required for the running of “the Austrian website”.
9.  The version of the German website which could be reached via the link on the Austrian website included the following statement:
“Equating the Babycaust to the Holocaust would mean relativising today’s abortion murders” (Den Babycaust mit dem Holocaust gleichzusetzen würde bedeuten die heutigen Abtreibungsmorde zu relativieren.)
10.  Moreover, on the home page of the Austrian website the following statement was shown between two photos of babies, one of which was obviously covered in blood:
“There is no other word for it: Abortion is ‘AGGRAVATED MURDER’!” (Abtreibung ist “MORD”, es gibt kein anderes WORT!)
The photo underneath showed a pile of corpses in an unspecified Third Reich concentration camp. The caption below read:
“Abortion and euthanasia are crimes that no human law can presume to declare lawful” (Abtreibung und Euthanasie sind Verbrechen, die für rechtmäßig zu erklären sich menschliches Gesetz anmaßen kann)
Furthermore, under a link “abortions” on the Austrian website a caricature-like drawing of a wolf as an executioner guillotining embryos was shown. The text above this image read:
“Abortionists: They can kill, but woe betide those who remind them of the killing.” (Abtreiber: Töten können sie, aber wehe wenn man sie ans töten erinnert)
Underneath, the text read:
“‘Fascists’/’Anti-Fascists’: Whether concentration-camp commanders or murderers of unborn children, both are manifestations of criminals! These ‘low lifes’ have the same genetic makeup” (“Faschisten” / “Antifaschisten”: KZ-Kommandanten oder Mörder von Ungeborenen, sind zwei Erscheinungsformen von kriminellen Menschen! Diese „Sumpfblüten” haben denselben genetischen Code)
Accessible via the link “not for the fainthearted” were images purporting to show aborted foetuses and the words:
“Sixty years post-Auschwitz: After ‘termination’, it’s off to the incinerator or the rubbish heap!” (60 Jahre nach Auschwitz: nach der “Unterbrechung” geht’s in den Verbrennungsofen oder auf den Müll!)
11.  Following the link “Germany” and a further link on that page to “Prayer requests”, reference was made to a decision by the Karlsruhe Court of Appeal (judgment of 28 February 2007 – 6 U 98/06) prohibiting the applicant from labelling abortions as performed by the doctors named on his website as “aggravated murder”. The reference was glossed with the following statement:
“We have not labelled and do not label abortion doctors as aggravated murderers. HOWEVER, we will stand firm in our conviction that the wilful ‘bringing-to-death’ of an innocent human being is AGGRAVATED MURDER. Can anyone seriously argue that an innocent, unborn human being is not wilfully killed in an ‘ABORTION’?” (Abtreibungsärzte sind von uns nicht als Mörder bezeichnet worden und werden von uns nicht als Mörder bezeichnet. ABER: Wir werden zu unserer Meinung stehen: Das vorsätzliche „zu Tode bringen“ eines unschuldigen Menschen ist MORD. Und wer kann ernstlich behaupten, dass bei einer „ABTREIBUNG“ kein unschuldiger, ungeborener Mensch vorsätzlich getötet wird?)
At the very bottom of the same page, under the highlighted text “German contemporary history in brief”, a sentence read:
“Perverted doctors murdered unborn children at the behest of their mothers” (Pervertierte Ärzte ermordeten im Auftrag der Mütter die ungeborenen Kinder)
From that page, the reader was directed to a location-based alphabetical list mentioning the names and practice addresses of many doctors across Germany who performed abortions. The list was accompanied by an invitation to pray for these doctors.
12.  Dr F., the plaintiff in the main proceedings, was mentioned on the list. He was of Jewish faith and his family had suffered from the atrocities carried out during the National Socialist era.
13.  Dr F. applied to the courts for an injunction against the applicant and M.H. as well as for damages for the violation of his personality rights. He argued that the websites in question had generated a direct association between the named doctors and the Third Reich, equated abortions with the crimes of the Third Reich and stigmatised him as a murderer.
14.  On 9 February 2010, the Karlsruhe Regional Court ordered the applicant to desist from using and/or allowing the use of the term “aggravated murder” on the German website or the Austrian website to describe abortions performed by Dr F., who was named on those websites. It also ordered the applicant, as joint and several debtor (Gesamtschuldner) with M.H., to pay Dr F. compensation of 10,000 euros (EUR). A similar order against M.H. was issued in a separate judgment.
15.  The Karlsruhe Regional Court gave the following grounds for its decision. Firstly it established that the statements at issue could be attributed to the applicant. The fact that the said content was accessible only via the indirect route of the Austrian website operated by M.H. was irrelevant. The applicant had made the content his own by having referred and created a link on the German website expressly to M.H.’s website. He had also not disputed during the proceedings that the statements had originated from him. Moreover, throughout the proceedings, he had continuously, and with conviction, described abortion as aggravated murder and considered the comparison of abortions and the Holocaust, reflected even in the “babycaust” domain name, to be appropriate.
16.  In a next step the court analysed screenshots of the website, which had been submitted by the plaintiff. It concluded that the website at issue contained the general statement that abortions, as performed by Dr F., were acts of aggravated murder comparable with the utterly unjustifiable atrocities inflicted on Jews in the Third Reich. By mentioning Dr F.’s name and his practice address directly in this context, the applicant had reproached the doctor specifically for performing abortions and had created a “pillory effect”. Even though the applicant had made his statements in the context of a public debate of fundamental importance and freedom of expression protected polemical and sharp criticism, the applicant’s comments on the German website and the Austrian website had not been posted as broad criticism but specifically against the doctors mentioned on those sites. The applicant had purposefully undermined the plaintiff’s right of personality by labelling abortion as aggravated murder, equating it to the crimes of the Holocaust and reproaching Dr F. specifically for his involvement. This was also true on the assumption that the statements constituted an expression of opinion and not a factual claim. Consequently, the weighing of all those considerations turned out in favour of Dr F.’s general right of personality, which in these circumstances prevailed over the applicant’s freedom of expression.
17.  As regards damages the Karlsruhe Regional Court reasoned that the violation of the right of personality and the associated stigmatising effect were particularly serious, given that Dr F. himself was Jewish and his family had suffered directly the Nazi atrocities in the Third Reich. Moreover, the court took into account that the applicant had persistently made these or similar statements and had not been dissuaded by orders to desist issued against him, such as the decision of the Karlsruhe Court of Appeal of 28 February 2007 (6 U 98/06) to which the website referred (see paragraph 11 above), or the inclusion of the website on the list of publications harmful to minors by the Federal Review Board.
18.  By indicative order of 21 September 2010 the Karlsruhe Court of Appeal notified the applicant of its intention to dismiss his appeal owing to insufficient prospects of success. The court elaborated that the Regional Court’s conclusion that the Austrian website had levelled the serious and personal allegation against Dr F. that he had performed acts of aggravated murder. The allegation had further involved comparing abortions to the extermination of Jews under Nazi rule. This had constituted a serious attack on Dr F.’s reputation and personality rights. The Court of Appeal also confirmed that the applicant had to assume responsibility for the content of the Austrian website. He had given the relevant content from his own website over to M.H. and had given his consent, by means of a link, for it to be posted on the Austrian website. Moreover, the award of monetary compensation was appropriate in the light of the severity of the interference with the general right of personality. The Regional Court had correctly taken into account, to the detriment of the applicant, that he had failed to observe the legally binding decision of the Karlsruhe Court of Appeal of 28 February 2007. The court further clarified that – for the purpose of determining the amount of compensation to be awarded – it was irrelevant whether Dr F. was Jewish and that his family had been persecuted under the Nazi regime. In support of that view, the court adjudged that there were no apparent indications that the applicant had had or should have had any such knowledge.
19.  The applicant was provided with the opportunity to submit his position on the above reasoning, which he made use of to no avail. On 2 February 2011 the Karlsruhe Court of Appeal dismissed an appeal by the applicant without an oral hearing. It referred to its reasoning in the indicative order of 21 September 2010 and emphasised that the awarded damages had been justified irrespective of whether Dr F. was Jewish.
20.  On 18 April 2011 the Federal Constitutional Court refused to admit a complaint by the applicant for adjudication for being inadmissible (1 BvR 798/11), without providing reasons.