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Mikkelsen and Christensen v. Denmark

Closed Contracts Expression

Key Details

  • Mode of Expression
    Audio / Visual Broadcasting
  • Date of Decision
    May 24, 2011
  • Outcome
    Convention Articles on Freedom of Expression and Information not violated
  • Case Number
    App. No. 22918/08
  • Region & Country
    Denmark, Europe and Central Asia
  • Judicial Body
    European Court of Human Rights (ECtHR)
  • Type of Law
    Criminal Law, International/Regional Human Rights Law
  • Themes
    Public Order
  • Tags
    Journalism, Freedom of press

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Case Analysis

Case Summary and Outcome

The European Court of Human Rights held that the criminal conviction of two journalists for buying illegal fireworks did not violate their right to freedom of expression. The applicants had argued that buying the fireworks had been necessary in the context of a documentary they were filming, but the Court held that in the preparation of journalistic output journalists still need to abide by the law. The Court emphasized that the journalists had not been penalized for broadcasting the documentary, and disagreed that the transaction had been truly necessary.


Facts

The applicants are both journalists who worked for Danmarks Radio. They were were working on a documentary on the illegal fireworks trade in Denmark, entitled “Backers of Bombs.” In the context of this documentary, they purchased illegal fireworks in order to illustrate the ease of obtaining them and to provide insight into the suppliers of illegal fireworks. Immediately after the purchase, they handed the fireworks over to the police. They were subsequently prosecuted and eventually convicted of having acquired illegal fireworks without permission from the municipality, contrary to section 7 of the Danish Fireworks Act. They were each sentenced to a fine in the amount of 6,000 Danish kroner (approximately $1,000).

The court noted that prior to the purchase, the journalists had contacted police. In discussions with police forces in two separate cities, they had been told that they would need to immediately hand over any fireworks they procured but they had never been promised immunity from prosecution. During their appeal to the High Court of Eastern Denmark, the documentary aired on television. The High Court upheld their conviction, emphasizing that their conviction had not impeded the airing of the documentary. The court balanced the freedom of the press with the criminality of the act and found that the conviction was appropriate in this case. The Supreme Court refused leave to appeal.


Decision Overview

The European Court of Human Rights held, first, that there had been an interference with the right to freedom of expression; the applicants had been convicted in the course of obtaining information for a documentary about the illegal fireworks trade. Noting that the parties did not dispute whether the interference pursued a legitimate aim and was prescribed by law, the Court held that the main issue was whether it had been “necessary in a democratic society.”

The Court observed that although the press is afforded great freedom, it cannot use the right to freedom of expression as a shield from criminal liability. While the Court recognized that the documentary concerned a matter of public interest, it also emphasized that the broadcasting of the documentary had not been impeded in any way by the applicants’ convictions. The Court also observed that the fireworks law under which the journalists had been convicted was a strict liability offense.

The Court was not convinced by the applicants’ argument that violating the fireworks law had been necessary in order to make the documentary. The Court noted that the applicants had access to fireworks already seized by the police, which would have given them information regarding the suppliers of fireworks, and that they could have still reported about the organized crime network in the documentary. The Court also found that there had been no express promise of immunity from the police. Although the police in one city told the applicants they would not face prosecution, the applicants were eventually prosecuted for the purchase of illegal fireworks in a second city where no such promise had been made.

Finding furthermore that the penalty imposed had not been excessive, the Court concluded that the applicants’ conviction did not amount to a disproportionate and unjustified restriction of their right to freedom of expression. It dismissed the application as manifestly ill-founded.


Decision Direction

Quick Info

Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.

Contracts Expression

This case, analogous to Salihu v. Sweden, presents an issue where the Court found journalists liable for violations of domestic criminal law. The Court here emphasized the important balancing test between the rights of the press and the public interest in ensuring the safety of its citizens. Here, the Court found that because the applicants had committed a strict liability offense, the production of the documentary was not impeded, and the journalists could have used legal means to obtain a similar result, they could not utilize the right to freedom of expression as a shield to escape liability from prosecution. The judgment signals a reluctance on the part of the Court to approve the commission of illegal acts by journalists. This may have a chilling effect on future investigative journalism.

Global Perspective

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Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.

Related International and/or regional laws

National standards, law or jurisprudence

  • Den., Fireworks Act (1972)
  • Den., Criminal Code sec. 83

Case Significance

Quick Info

Case significance refers to how influential the case is and how its significance changes over time.

The decision establishes a binding or persuasive precedent within its jurisdiction.

Judgments of the European Court of Human Rights are binding upon parties to the case and constitute an authoritative interpretation of the meaning of Convention rights for all other States that are party to the Convention.

Decision (including concurring or dissenting opinions) establishes influential or persuasive precedent outside its jurisdiction.

Judgments of the European Court of Human Rights are influential outside Europe and are frequently cited by other human rights courts or by national courts of appeal or constitutional courts.

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