Striking a difficult balance between rights - The ECtHR on buffer zones around abortion clinics

By N.J.L. Swart, LLM Student International Human Rights Law & LLM Student Legal Research, University of Groningen, noorswart@gmail.com

In November 2020, a claim against a buffer zone around an abortion clinic in the United Kingdom was filed at the European Court of Human Rights. This will provide a crucial judgment on a highly topical and contentious issue. In this blog, the difficult balance that the Court has to strike between the right to freedom of speech and assembly and the right to privacy is touched upon, by drawing on previous case law.

In several states, buffer zones – or safe access zones – are set up around abortion clinics in order to protect the clinic’s visitors. In such zones, protesting, picketing and other actions can be prohibited, which clearly raises issues with regard to freedom of assembly and expression. In November 2020, a British woman has filed a claim at the European Court of Human Rights (ECtHR) challenging a buffer zone in Ealing, London.[1] This will result in a crucial judgment for states in which buffer zones already pose a legal challenge, such as the Netherlands.[2] The question is: how is the ECtHR likely to balance the freedom of assembly and expression, enshrined in articles 11 and 12 of the ECHR, with the right to privacy?

In 2018, a Public Space Protection Order (PSPO) was put in place by the London Borough of Ealing, prohibiting protests, prayer vigils and counselling within an area of 100 meters from the abortion clinic.[3] This PSPO was challenged in court, where the applicants claimed a violation of the right to freedom of speech and assembly. According to the High Court, however, the PSPO was justified based on the right to privacy of the clinic’s visitors.[4] The judgment was reinforced by the Court of Appeal and Supreme Court and is now pending before the ECtHR.[5]

The ECtHR has considered similar cases before. In Van den Dungen v. The Netherlands (1995), the Court upheld an injunction in which the applicant was prohibited to be within 250 meters of an abortion clinic. The applicant tried to persuade visitors not to have an abortion and handed out leaflets with shocking photographs. The Court stated that the interference with the freedom of expression was justified, because the injunction was aimed at protecting the rights of the clinic’s visitors. Moreover, the measure was proportionate, because it was granted for a limited duration and a specified area.[6]

In Annen v Germany (2015), the ECtHR took a different direction. In this case, the applicant was ordered by a German court not to disseminate leaflets in the immediate vicinity of a day clinic. In the leaflets, the applicant listed the full names of two of the clinic’s doctors and asserted that they performed unlawful abortions.[7] The ECtHR stated that the injunction violated the applicant’s right to free speech.[8] The applicant contributed to a controversial debate of public interest, and the location and personalized presentation of his arguments enhanced his campaign’s effectiveness.[9]

In the impending Ealing case, it appears to be unlikely that the ECtHR will follow its reasoning in Annen v Germany. It is striking that the rights of the clinic’s visitors did not play a role in this case, even though they were affected by the applicant’s actions as well:[10] these women find themselves in a time and place where they are vulnerable to uninvited attention.[11] Hence, their right to privacy must be given proper consideration.

Nevertheless, the ECtHR has consistently stated that freedom of expression and assembly are fundamental rights in a democratic society, that cannot be interpreted restrictively.[12] These rights can only be restricted if the measure is prescribed by law (in this case, the measure is laid down in domestic UK law[13]), if it serves a legitimate aim (in this case, the protection of the rights of the clinic’s visitors) and if the measure is necessary in a democratic society.[14]

This last requirement will be the main obstacle in the Ealing case. A general measure restricting the right to demonstration, such as the PSPO, can only be justified if there is a “real danger of their resulting in disorder which cannot be prevented by less stringent measures”.[15] However, it can be questioned whether engaging in dialogue with the clinic’s visitors, handing out leaflets and displaying shocking posters can be considered a real threat of disorder. Provided that the rights of freedom of expression and assembly cannot be interpreted restrictively, it can also be questioned whether such behavior could constitute a proportionate limitation of these rights.

Moreover, less stringent measures than a buffer zone might be at hand. Given the Court’s previous assertion that demonstrations should be held “within sight and sound of its target object”, a buffer zone of 100 meters might not be proportionate when it is also possible to stand at the other side of the street, or issue an injunction.[16] In that regard, the US Supreme Court concluded that a 10 meter buffer zone violated the right to free speech because less intrusive means were available.[17] Yet, such alternative means might still disproportionally interfere with the visitors’ privacy, given the highly personal nature of the medical procedure.

In conclusion, it is still unclear what balance of rights the ECtHR will strike in the Ealing case. On the one hand, it will have to protect two pillars of our democratic society, while on the other, the needs of those who are vulnerable in that society must be defended. Which interest is more ‘necessary’?

[1] ‘Mother challenges prayer and counselling ban at Europe’s top court’ (ADF International, 25 November 2020) <https://adfinternational.org/news/uk-mother-challenges-prayer-and-counselling-ban-at-europes-top-court/> accessed 3 December 2020.

[2] Lianne M. Reddy, ‘Safe access zones – What do other countries do?’ (Oireachtas Library & Research Service, 8 May 2019) <https://data.oireachtas.ie/ie/oireachtas/libraryResearch/2019/2019-05-08_l-rs-note-safe-access-zones-what-do-other-countries-do_en.pdf> accessed 6 December 2020, 13-14; ‘Minister De Jonge supports buffer zones around abortion clinics [translated]’ (NOS 29 March 2019) <https://nos.nl/artikel/2278056-de-jonge-steunt-bufferzones-bij-abortusklinieken.html> accessed on 6 December 2020.

[3] Dulgheriu & Orthova v Ealing LBC [2019] EWCA Civ 1490, para 10; ‘Supreme Court refuses permission to appeal on UK’s first abortion clinic ‘buffer zone’’ (Cornerstone Barristers, 11 March 2020) <https://cornerstonebarristers.com/news/supreme-court-refuses-permission-appeal-ukrsquos-first-abortion-clinic-lsquobuffer-zonersquo/#:~:text=Cases-,Supreme%20Court%20refuses%20permission%20to%20appeal,first%20abortion%20clinic%20'buffer%20zone'&text=In%20that%20decision%2C%20handed%20down,of%20Ealing%20in%20April%202018.> accessed on 6 December 2020.

[4] Dulgheriu & Orthova v Ealing (n3), para 22-24.

[5] ‘Supreme Court refuses permission to appeal on UK’s first abortion clinic ‘buffer zone’’ (n3).

[6] European Court of Human Rights, Van den Dungen v Netherlands App No. 22838/93 (22 February 1995); ‘Guide on Article 9 of the European Convention on Human Rights’ (ECtHR, 31 August 2020) <https://www.echr.coe.int/Documents/Guide_Art_9_ENG.pdf> accessed on 7 December 2020.

[7] European Court of Human Rights, Annen v Germany App No. 3690/10 (26 November 2015), para 14.

[8] Ibid, para 60.

[9] Ibid, para 62; Corina Heri, ‘The problem with Insularity: On the Court’s View of Anti-Abortion Campaigning in Annen v. Germany’ (Strasbourg Observers, 15 December 2015) <https://strasbourgobservers.com/2015/12/15/the-problem-with-insularity-on-the-courts-view-of-anti-abortion-campaigning-in-annen-v-germany/> accessed 3 December 2020.

[10] Heri (n10).

[11] Dulgheriu & Orthova v Ealing (n3), para 65.

[12] ‘Guide on Article 11 of the European Convention on Human Rights’ (ECtHR, 31 August 2020) <https://www.echr.coe.int/Documents/Guide_Art_11_ENG.pdf> accessed on 7 December 2020, 6; European Court of Human Rights, Djavit An v. Turkey App No. 20652/92 (20 February 2003), para 56.

[13] Chapter 2 of the Anti-Social Behaviour, Crime and Policing Act 2014 of the United Kingdom, section 59 

[14] Article 10(2) and article 11(2) of the European Convention for the Protection of Human Rights, as amended by Protocols Nos 11 and 14 (adopted 4 November 1950, entered into force 1 January 1990) ETS 5; ‘Guide on Article 11 of the European Convention on Human Rights’ (n12), 13-15.

[15] ‘Guide on Article 11 of the European Convention on Human Rights’ (n12), 15.

[16] European Court of Human Rights, Lashmankin and others v Russia App No. 57818/09 (7 February 2017), 405.

[17] McCullen v Coakley 573 US 464, 12-1168 (2014).