Defamation / Reputation
Afanasyev v. Zlotnikov
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The Grand Chamber of the European Court of Human Rights found that the criminal conviction for defamation of two Danish journalists for alleging in television programs that a police chief superintendent tampered with evidence in a murder case was proportionate to the legitimate aim of protecting others’ reputation and rights. The two journalists had produced two documentaries questioning whether the conviction of an individual for killing his wife was correct and whether the police had tampered with evidence. The murder conviction was later overturned following an inquiry which recommended a retrial but did not find any evidence of police evidence tampering. The Court held that the defamation conviction was necessary in a democratic society as the journalists had no factual basis on which to basis their allegations. The Court held that the documentaries threatened the chief superintendent’s right to be presumed innocent until proven guilty.
Between September 1990 and April 1991, Jørgen Pedersen and Sten Kristian Baadsgaard, two Danish television journalists, produced two television documentaries for one of the two national television stations. The documentaries, called “Convicted of Murder” and “The Blind Eye of the Police,” concerned the murder trial and conviction of X by the High Court of Western Denmark for the murder of his wife on December 12, 1981. According to the Frederikshavn police, the murder occurred between 11:30 a.m. and 1:00 p.m. On November 12, 1982, X was sentenced by the High Court of Western Denmark to twelve years’ imprisonment.
The documentaries sought to prove that the Danish police had no legal basis for convicting X and that he was not given the benefit of the doubt, and the journalists interviewed several witnesses and shared circumstantial evidence indicating that the chief superintendent suppressed vital evidence which could have acquitted X at the trial.
In “Convicted of Murder”, Pedersen and Baadsgaard discussed what happened the day of the murder, and they shared their assessments of the police’s investigation and invited a number of witnesses to discuss the time of the murder.
On September 17, 1990, a friend of X’s wife brought defamation proceedings against Pedersen and Baadsgaard for unlawfully connecting her to the death of X’s wife and another woman. That case was settled after the parties signed a settlement agreement which provided that the journalists would pay the complainant 300,000 Danish kroner (DKK) and promise not to broadcast the documentary again.
For “The Blind Eye of the Police”, the Frederikshavn police chief superintendent was invited to the show but refused to attend because the interview questions were not provided beforehand. Subsequently, Pedersen and Baadsgaard interviewed a taxi driver who had been questioned by the Frederikshavn police in 1981 following the murder of X’s wife. The taxi driver explained that on the day of the murder, she saw X and his son at around 12:00 p.m. and that she drove behind them for a kilometer. She further indicated that she remembered the time precisely because her grandmother’s funeral was scheduled for that day at 1:00 p.m. The interview commentator then showed the taxi driver a copy of her statement from 1981 as recorded by the police, and highlighted that the Frederikshavn police omitted crucial details of the taxi driver’s declarations in the report and asked “why did the vital part of the taxi driver’s explanation disappear and who, in the police or public prosecutor’s office, should bear the responsibility for this?” [para. 21]. The documentary also showed pictures of several police officers, including the chief superintendent, while continuing to ask a series of questions implying that the chief superintendent tampered with evidence to convict X.
On March 11, 1991, prior to the broadcasting of the second documentary, the police interviewed the taxi driver once again at the request of X’s counsel. However, after cross-referencing the taxi driver’s statements, the police found that her grandmother’s funeral took place on 12 December 1981 at 2:00 p.m. – past the relevant time of the murder. The police interviewed the taxi driver on three other occasions where she altered her declaration about the time she saw X and his son.
On May 23, 1991, the chief superintendent reported Pedersen and Baadsgaard to the police for defamation but the prosecution of the defamation charges was adjourned until the Special Court of Revision decided whether to reopen X’s case for revision. On November 29, 1991, the Special Court of Revision granted a retrial after considering that new evidence had emerged on which X could have been acquired in 1981 and an inquiry was appointed to review the police investigation. On July 29, 1991, the Regional State Prosecutor issued a report indicating that during the investigation of X’s case, the Frederikshavn police violated section 751(2) of the Administration of Justice Act, which established that “a witness must be given the opportunity to read through his or her statement” [para. 25]. Although the report did not reveal that the Frederikshavn police tampered with evidence in X’s case, on April 13, 1992, the High Court of Western Denmark acquitted X.
On January 19, 1993, Pedersen and Baadsgaard were informed of the defamation charges and on January 28 were questioned by the Gladsaxe police. The Gladsaxe City Court granted the indictment, holding that “the questions put in the television programme concerning the named chief superintendent amounted to defamatory allegations, which should be declared null and void” [para. 31]. That Court did not impose any sentence on the grounds that the journalists had had reason to believe that the allegations were true. The Court dismissed a compensation claim by the widow of the named chief superintendent who had died before the trial [para. 31].
Both Pedersen and Baadsgaard and the prosecution appealed against the City Court’s decision of to the High Court, and on March 6, 1997, the High Court convicted Pedersen and Baadsgaard of “tarnishing the honour of the chief superintendent by making and spreading allegations of an act likely to disparage him in the eyes of his fellow citizens, under Article 267 § 1 of the Penal Code” [para.33]. Pedersen and Baadsgaard’s statements were declared null and void by the High Court, and the journalists were ordered to pay a fine of 400 DKK per day (or 20 days’ imprisonment), and to pay the chief superintendent’s widow a compensation of 75,000 DKK.
In March 1997, Pedersen and Baadsgaard filed a leave request against the High Court’s decision to the Supreme Court which was granted and the matter was referred to the Supreme Court. On October 28, 1998, the Supreme Court upheld the High Court’s decision and increased the chief superintendent’s widow’s compensation to DKK 100,000. The Supreme Court held that the journalists’ statements targeted a specific police officer and not the police as an institution, and that the documentaries “took a stand on the truth of the taxi driver’s statement and presented matters in such a way that viewers, even before the final sequence of questions, were given the impression that it was a fact that the taxi driver had given the explanation as she alleged she had done in 1981 and that the police were therefore in possession of this statement in 1981” [para. 37]. A minority of two judges from the Supreme Court would not have convicted the journalists.
Pedersen and Baadsgaard submitted a complaint to the European Court of Human Rights arguing, inter alia, that the Supreme Court’s judgment constituted a disproportionate interference with their right as journalists to express themselves freely and to play their role as a public watchdog. On June 19, 2003, the First Section of the Court delivered a judgment dismissing the complaint, holding that Denmark’s behavior was compatible with Article 10 of the Convention.
On request from Pedersen and Baadsgaard the case was referred to the Grand Chamber.
The Court delivered a majority judgment of nine to eight. Judges Rozakis, Türmen, Strážnická, Bîrsan, Casadevall, Zupančič, Maruste, and Hajiyev delivered a partly dissenting judgment. The central issue was whether the restriction to Pedersen and Baadsgaard’s right to freedom of expression through the defamation conviction was necessary in a democratic society in that it responded to a pressing social need.
It was common ground between the parties that the domestic court’s judgment interfered with the right to freedom of expression under Article 10 and that it was “prescribed by law” and pursued a legitimate aim of protecting others’ reputations and rights. Accordingly, the Court did not consider these questions.
Pedersen and Baadsgaard argued that the Government had misconstrued their declarations in the program “The Blind Eye of the Police” as “factual statements” whose veracity or verification could be required. They submitted that their allegations were well-researched and were made in good faith. The journalists stated that the series of questions they shared in their programs intended to invite the audience to speculate about what really happened in X’s case and “merely implied a range of possibilities in the criticised handling of the investigation of the murder case in 1981-82” [para. 53].
The Government emphasized that the journalists were not convicted for questioning the Frederikshavn police’s investigation of X’s case but for illegally accusing a police officer of tampering with evidence and that “the applicants’ allegation was of such a direct and specific nature that it clearly went beyond the scope of a value judgment” [para. 58]. The Government pointed out that Pedersen and Baadsgaard’s documentaries did not affect or influence X’s acquittal.
The Court noted that prior to establishing if interference with freedom of expression was necessary in a democratic society, it must examine if such interference corresponded to a pressing social need. The Court emphasized that although States parties to the Convention enjoy a certain margin of appreciation in confirming the existence of a “pressing social need” this must be exercised under European Supervision. The Court also stressed that expressions that shock, disturb or offend also merit protection under Article 10. The Court noted that Pedersen and Baadsgaard’s documentaries aimed primarily at disclosing the lack of evidence behind X’s conviction and the High Court’s prejudice against X, which according to the Court constituted matters of public interest.
The Court emphasized that preserving press freedom is of central importance for democracy, and noted that “a constant thread running through the Court’s case-law is the insistence on the essential role of a free press in ensuring the proper functioning of a democratic society. Although the press must not overstep certain bounds, particularly regarding protection of the reputation and rights of others and the need to prevent the disclosure of confidential information” [para. 71]. To further support its line of reasoning, the Court noted that Article 10 not only protects journalists’ right to disseminate their opinions and expressions but also the public’s right to access journalistic information.
However, after due consideration of the Danish Supreme Court’s decision, the Court concluded that Pedersen and Baadsgaard were convicted for illegally accusing a named individual under Article 267(1) of the Danish Penal Code and not for disclosing the police’s failings during the investigation against X. Accordingly, after examining the questions posed in the documentaries, the Court held that they introduced a serious accusation against the chief superintendent that he intentionally tampered with evidence to have X convicted of murder which – if that accusation was prosecuted would have led to a nine year prison term for the chief superintendent. Therefore, the Court concurred with the domestic courts’ decisions holding that “by introducing their sequence of questions with the question ‘why did the vital part of the taxi driver’s explanation disappear and who, in the police or public prosecutor’s office, should bear the responsibility for this?’ …, [the journalists] took a stand on the truth of the taxi driver’s statement and presented matters in such a way that viewers were given the impression that it was a fact” [para. 74]. The Court found that the journalists’ sequence of questions “left the viewers with only two options, namely that the suppression of the vital part of the taxi driver’s statement in 1981 had been decided upon either by the chief superintendent alone or by him and the chief inspector of the Flying Squad jointly” [para. 75].
The Court accepted the domestic courts’ finding that Pedersen and Baadgaard’s questions amounted to an allegation of fact that could be proved and noted that even value judgments need a factual basis to comply with Article 10, stating that “[i]n news reporting based on interviews, a distinction also needs to be made according to whether the statements emanate from the journalist or are a quotation of others, since punishment of a journalist for assisting in the dissemination of statements made by another person in an interview would seriously hamper the contribution of the press to discussion of matters of public interest” [para. 77]. In the present case, the journalists were convicted based on their statements and not for quoting interviewees’ declarations and they drew the impugned questions solely on their assessment of the taxi driver’s statements.
The Court also emphasized that journalists’ right to freedom of expression and to impart information is subject to compliance with their journalistic obligation to verify factual allegations, and noted that Pedersen and Baadsgaard sustained their accusations against the chief superintendent only on the taxi driver’s declarations. Accordingly, the Court held that the journalists had not endeavored to seek evidence to support their accusations.
The Court acknowledged that civil servants are subject to a higher degree of criticism, but considered that civil servants such as the police chief superintendent could not be afforded the same treatment as politicians or public figures participating in public discussions which concern their actions committed in an official capacity. Therefore, Pedersen and Baadsgaard threatened the chief superintendent’s right to be presumed innocent until proven guilty by accusing him of tampering with evidence without having any factual support of such allegations. The Court held that Pedersen and Baadsgaard’s conviction was not excessive, nor that it had a “chilling effect” on other journalists and so upheld the first section’s decision finding that the conviction was proportionate to the legitimate aim of protecting the chief superintendent’s reputation and rights. The Court held that such interference was necessary in a democratic society within the meaning of Article 10, and so there was no violation of the right to freedom of expression.
Judges Rozakis, Türmen, Strážnická, Bîrsan, Casadevall, Zupančič, Maruste, and Hajiyev agreed with the majority on most counts but disagreed on not finding a violation of Article 10. The Judges considered that X’s acquittal after the broadcast of the documentaries supported their view on holding Denmark responsible for violating Article 10. They agreed with Pedersen and Baadsgaard’s submission that the questions portrayed in the programs provided a range of possibilities for the audience to come up with their own answers on X’s conviction, and noted that “[e]ven if the questions amounted to an allegation against the chief superintendent, the applicants, as investigative journalists reporting on an item of such high public interest, alerting the public to a possible malfunctioning of the judicial system, could not have been expected to prove their assertions beyond a reasonable doubt” [para. 5]. The Judges also held that the main judgment should have attached more importance to the fact that the journalists’ documentaries might have influenced the Special Court of Revision to reopen X’s file, which eventually led to his acquittal. Thus, the Judges considered that the grounds advanced by national courts did not demonstrate the necessity of interfering with the Applicants’ freedom of expression.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The Court balanced the journalists’ right to freedom of expression with the chief superintendent’s reputation and his right to be presumed innocent until proven guilty, and noted that journalists’ right to freedom of expression and impart information is subject to compliance with their journalistic obligation to verify factual allegations. Although it stressed that journalists could not be convicted for quoting another person’s declarations, as the journalists in this case had no factual basis to support their accusations against the chief superintendent and were not quoting another person’s declarations, they could not be afforded protection under Article 10.
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