Case Summary and Outcome

The European Court of Human Rights held that the criminal sanction imposed by a Danish High Court on a private individual for calling a well known public figure a Nazi on Twitter was a violation of Article 10 of the European Convention of Human Rights. The post concerned the leader of a right wing political party, who had garnered media attention for his anti-Islam protests and viewpoints as well as his involvement in cases related to the burning of Korans. The High Court found the statement to be a defamatory value judgement that did not have a factual basis nor contribute to matters of public interest and ordered the individual to pay fines and compensation totaling the equivalent of 5350 Euros. The European Court of Human Rights found that the Danish authorities had not conducted a proper balancing exercise between the right to freedom of expression and the right to private life and that, in contrast to the government’s view, the statement contributed to debate of public interest.

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Facts

On May 5, 2021, Mathias Mortensen, a Danish citizen, wrote a reply to another user’s Twitter post. Mortensen’s post referred to a controversial political party leader, R.P, and said “Let me get this straight …R.P. is allowed to be a Nazi, burn Korans and say horrible things about people solely on the basis of their ethnic origin, but [another specific individual] gets arrested for calling a police officer an idiot?”. The original post referred to the arrest of the individual and had not discussed R.P.

R.P. was the leader of Stram Kurs, a right-wing political party in Denmark, and, despite the party getting only 1.8% of the vote in the 2019 general election, had garnered public attention for his anti-Islamic views including participating in anti-Islam protests and burning Korans. There was debate in the media and among historians about whether R.P. could accurately be described as a Nazi or fascist. After the Danish Election Board found that Stram Kurs had been engaged in fraudulent voter declarations and suspended it from collecting voter declarations, R.P. founded two new parties neither of which obtained a sufficient number of voter declarations to register for the 2022 election. At the time of Mortensen’s post, R.P. was therefore not an active politician or representing a party with representation in Parliament.

In May 2019, R.P. was convicted of defaming another political leader after he called her a Nazist-svin (Nazi pig) in a televised debate, and the other political leader was convicted of defaming R.P. for calling him a åbenlys Nazist (manifest Nazi). R.P. was also convicted of racist speech in 2019 and 2021.

On November 5, 2021, R.P. brought an application to the District Court seeking that Mortensen be convicted of defamation under Article 267 of the Danish Penal code, that he pay damages, and that the post on Twitter be “declared unfounded and be deleted”. [para. 9]

Article 267(1) states: “Any person who issues or disseminates a statement or other communication or who commits an act likely to damage another person’s reputation shall be sentenced to a fine or imprisonment for a term not exceeding one year”. Article 269 exempts from punishment defamation “if it was made in a context in which it was reasonably justified”, including whether there was a “sufficient factual basis” and had been “made or disseminated in good faith and for a meritorious purpose”.

On November 18, 2022, the District Court convicted Mortensen of defamation, finding that the term “Nazi” in respect of R.P was unfounded. The Court sentenced Mortensen to 10 day-fines amounting to a total of approximately 1 350 EUR and ordered him to delete the post and provide the equivalent of 6 000 EUR as compensation to R.P.

Mortensen appealed to the High Court, arguing that his post had a factual basis as R.P. had made statements (and there were other sources about his statements and conduct) which “could give the impression that he subscribed to views that closely resembled those subscribed to in Nazism”. [para. 10]

On October 5, 2023, the High Court upheld the District Court’s decision, but lowered the compensation required to the equivalent of 4000 EUR. The High Court held that Mortensen’s statement was a value judgement, and that the available evidence did not provide a “sufficient factual basis” and it had not been made for a “meritorious purpose” and so could not avoid sanction. [para. 11] It also held that the statement “cannot be deemed to have the nature of a contribution to a public debate about a topic of considerable interest to society” in the context in which it was made. [para. 11]

Mortensen sought to appeal to the Højesteret (Supreme Court), but on February 7, 2024, the Procesbevillingsnævnet (the Appeals Permission Board) refused to grant leave to appeal.

Mortensen then approached the European Court of Human Rights on the grounds that his conviction infringed Article 10 of the European Convention on Human Rights.

Article 10 states: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

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Decision Overview

The Fourth Section of the European Court of Human Rights delivered a unanimous judgment. The central issue for the Court’s determination was whether the interference in Mortensen’s right to freedom of expression was “necessary in a democratic society”.

Mortensen argued that his statement did have a factual basis by virtue of the submitted evidence in domestic proceedings which illustrated the alignment between R.P´s views and those of Nazi ideology and that it contributed to matters of public interest as it highlighted how “justice was administered in Denmark” through the arrest of a citizen for calling a police officer an idiot while authorities “turn a blind eye” to a political figure verbally attacking Muslim citizens. [para. 24] He submitted that the High Court had also not considered the minimal readership of his post (which had also been deleted) resulting in limited accessibility, and stressed the severity of the sanction.

The Danish Government described the interference as prescribed by law, in pursuit of legitimate aim and proportional through the domestic authorities’ careful balancing process between Articles 8 and 10 of the European Convention. Article 8 protects the right to a private life. It argued that Mortensen’s statement was “triggered” by a comment unrelated to R.P. and his alleged Nazi beliefs and so did not contribute to a public debate “in a general and substantial manner”. [para. 29] The Government added that R.P at the time of the statement had not held political office and while his status as a public figure elicited a higher tolerance for criticism, the term “Nazi” overstepped the line on what can be acceptable. It maintained that the sanction was within their margin of appreciation and proportional.

In determining whether there is an infringement of Article 10, a court has to determine whether (a) it is prescribed by law; (b) pursues a legitimate aim; and (c) is necessary in a democratic society. After finding the interference to have been prescribed by law under Article 267 of the Danish Penal Code and was in pursuit of the legitimate aim of protecting the reputation of others, the Court had to determine whether the interference was “necessary in democratic society”.

The Court, in reiterating its general principles stressed the distinction between a value judgment and a statement of fact and that proving the truth of a value statement is by nature impossible and is at odds with freedom of opinion, an important protected aspect under Article 10. Nonetheless, the Court highlighted that a value judgement must have a certain level of a factual basis to prevent it overstepping acceptable rhetoric, the determination of which is within a state’s margin of appreciation. It iterated that for Article 8’s protection of the right to a private life to come into effect in the balancing process with Article 10, the impugned statement must reach a severity threshold to result in the detriment of an individual’s private life. In determining this severity threshold the Court must examine a variety of contextual factors such as “(a) contribution to a debate of public interest, (b) how well known the person concerned is, (c) the subject of the publication, (d) the prior conduct of the person concerned, and (e) the content, form and consequences of the publication. … (f) the way in which the information was obtained and its veracity and (g) the severity of the penalty imposed”. [para. 37]

In applying the principles to the present case, the Court emphasized that the use of the word “Nazi” (and other words such as “idiot” or “fascist”) in itself does not “automatically justify a conviction for defamation on the ground of the special stigma attached to it” and does not constitute “a factual statement of that person’s party affiliation”. [para. 40]

The Court agreed with the Danish High Court that calling someone a “Nazi” is a value judgment and accepted that domestic courts are best placed to assess whether a sufficient factual basis exists. However, it found that the High Court had provided no reasoning for its finding that there was no sufficient factual basis in Mortensen’s case. It also disagreed with the domestic court’s finding that Mortensen’s statement did not contribute to a public debate, noting that “[g]iven that R.P. was well known for testing the limits of freedom of speech, making a reference to his actions does not appear irrelevant to the debate”. [para. 43] The Court noted that the High Court had not considered “how well known the person concerned is and his prior conduct” and referred to R.P.’s prior conduct and position as a “well-known public figure”, highlighting specifically his two convictions for racist speech. [para. 45] It found that R.P. was clearly a public figure, and so “must therefore display a particularly high degree of tolerance”. [para. 45] The Court found that the domestic court had not examined the consequences of Mortensen’s publication of his statement and that it remained unknown how many people had read his post.

In examining the severity of the sanction, the Court noted that “while the use of criminal-law sanctions in defamation cases is not in itself disproportionate, a criminal conviction is a serious sanction” especially given the existence of other remedies for defamation. [para. 48] It held that the “cumulative sanction” of a fine and compensation was “disproportionately severe”. [para. 48]

Accordingly, the Court held that the domestic courts “did not conduct a proper balancing exercise” between Mortensen’s right to freedom of expression and R.P.’s respect for private life and that there was therefore a violation of Article 10. [para. 49] It awarded Mortensen 5 400 EUR in pecuniary damages and 4 000 EUR in non-percuniary damages as a result of the Article 10 violation.

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