Comparisons to Nazi outside Free Speech Protection (ECtHR)
On 18 October 2018, the European Court of Human Rights ruled in the case of Annen v. Germany (No. 6) (App. No.: 3779/11) that Article 10 of the European Convention on Human Rights did not protect statements comparing doctors conducting stem-cell research to Nazi experiments. The Claimant was originally convicted before a German court for the crime of ‘insult’ contrary to Article 185 of the German Criminal Code and the case was brought before the European Court of Human Rights on the grounds that the comparison had been made in the context of a larger public debate and was therefore covered by the freedom of speech.
The Claimant argued that the conviction constituted a disproportional interference under Article 10 of the Convention. The state on the other hand argued that the conviction was necessary for the purposes of the “protection of the reputation or rights of others”, which is an allowable exception to the Article 10 rights. Ultimately, the Court held that the conviction fell within the margin of appreciation granted to Germany. It was also emphasised that “regardless of the forcefulness of political struggles, it is legitimate to try to ensure a minimum degree of moderation and propriety and that a clear distinction must be made between criticism and insult.” (para. 24).
With this case, the European Court of Human Rights maintains its limited approach to the Article 10 protection whereby, unlike under the First Amendment to the US Constitution, the freedom of speech does not cover offensive statements, even if made on a topic of public importance (e.g. Handyside v UK (App. No.: 5493/72), Otto-Preminger-Institut v Austria (App. No.: 13470/87), Vejdeland v Sweden (App. No.: 1813/07), etc.).