Case Summary and Outcome

The European Court of Human Rights (ECtHR) determined that the conviction of a Danish journalist for aiding and abetting a xenophobic group violated the freedom of expression. Jens Olaf Jersild broadcast over radio and interview with members of the Greenjackets, a radical xenophobic group, in which the interviewees made derogatory statements about racial minorities and immigrants; a Danish court fined Jersild, as well as the head of Danmark Radio’s news section Lasse Jensen, for publishing racist statements. The ECtHR ruled that this violated the freedom of expression because the manner in which the statements were presented by the applicant (Jersild) was “sufficient to outweigh the effect, if any, on the reputation of others” and that there was insufficient evidence to show that the restriction was “necessary in a democratic society.”

Facts

In May 1985, the Sunday News Magazine ran a story about the growth of a xenophobic and racist group, the Greenjackets, whose members resided in a Copenhagen public housing community. Two months later, the same outlet aired an interview with three members of the Greenjackets, conducted by Danish journalist Jens Olaf Jersild. The five-hour interview was shortened to a few minutes, throughout which the three young group members made derogatory statements about racial minorities and immigrants in Denmark and throughout the world.

Despite no complaints having been made to the Radio Council or to Danmarks Radio, the Bishop of Ålborg lodged a complaint with the Minister of Justice, who pursued charges against the three young men under Article 266 of the Danish Penal Code. Additionally, charges under Article 266(b) were brought against Jersild, who facilitated the interview and produced the show, and against Lasse Jensen, the head of Danmarks Radio’s news section. Article 266(b) states “[a]ny person who, publicly or with the intention of disseminating it to a wide circle (‘videre kreds’) of people, makes a statement, or other communication, threatening, insulting or degrading a group of persons on account of their race, colour, national or ethnic origin or belief shall be liable to a fine or to simple detention or to imprisonment for a term not exceeding two years.”

A Danish lower court determined that Jersild and Jensen were guilty under Article 266(b). Accordingly, Jersild and Jensen were fined 1,000 and 2,000 Danish kroner, respectively, or, alternatively, five days imprisonment. The court asserted that Jersild and Jensen were aware of the racist attitudes of the Greenjackets and had incited the group members to air their views throughout the paid interview, during which the interviewers offered the Greenjackets beer. In addition, the court noted that Jersild and Jensen had edited the interview purposefully and intentionally included a series of offensive statements that the producers then disseminated without any inclusion of alternative views throughout the program. Subsequent domestic appeals to this ruling were dismissed.

Decision Overview

The Grand Chamber of the ECtHR issued a majority judgment (twelve votes to seven). The court considered whether Jersild’s “conviction and sentence for having aided and abetted the dissemination of racist remarks violated his right to freedom of expression within the meaning of Article 10 of the [ECHR].” [para. 25] The ECtHR noted the principles of free expression are particularly relevant to the media, which plays a vital in role in society as “public watchdog.” [para. 31] The ECtHR determined that the information in the broadcast touched upon an issue that is important both inside and outside Denmark: racial hatred.

The ECtHR held that the Danish government violated Jersild’s right to freedom of expression as protected by Article 10 of the ECHR. It found that the Danish government had enacted Article 266(b) to comply with the state’s obligations under core international human rights treaties, but had not proportionately punished Jersild because he is a member of the media and therefore protected by the Danish 1991 Media Liability Act.

Additionally, the ECtHR stated that “although the specific remarks made by the Greenjackets, read out of context, were highly offensive, the way in which they were presented and the objective pursued by the applicant were, in the circumstances, sufficient to outweigh the effect, if any, on the reputation or rights of others.” [para. 25] The ECtHR found that the Danish government had not adequately demonstrated that a limitation on expression was warranted by a legitimate aim, and thus, the limitation was not “necessary in a democratic society,” [para 27] as required by Article 10.