Nordisk Film & TV A/S v. Denmark (dec.)

Information Note on the Court’s case-law No. 81

December 2005

Nordisk Film & TV A/S v. Denmark (dec.) - 40485/02

Decision 8.12.2005 [Section I]

Article 10

Article 10-1

Freedom of expression

Television company ordered to hand over to the police unedited footage involving suspected paedophile: inadmissible

Facts: In the course of producing a television programme investigating paedophilia a journalist employed by the applicant company, JB, went undercover, posing as a member of “The Paedophile Association”. In the course of his year long membership JB was befriended by two other members, “Mogens” and “Per”, who made incriminating statements regarding paedophilia in Denmark and India. “Mogens” recommended a specific hotel, run by a Danish paedophile in India, at which “Mogens” had had sex with Indian boys in the past. JB visited the hotel in India and interviewed an Indian boy about his knowledge of “Mogens”. Also, in front of the hotel, a young Indian boy was offering sexual services. JB made numerous notes and camera recordings, most of them hidden. Before the programme was to be broadcast the Paedophile Association and its members who had been recorded by the hidden camera were contacted by the applicant company and given assurance that they would remain anonymous, when the documentary was shown. The association unsuccessfully sought an injunction to prevent the broadcast of the programme.

The day after the broadcast of the programme, “Mogens” was arrested and charged with sexual offences. The police had taken an interest in him already before the broadcast and could therefore identify him. Their request that he be detained on remand was refused by the city court, which found no specific reason to believe that “Mogens” would impede the investigation, notably because the information leading to the charges against him on the whole appeared from the programme. Thus, “Mogens” was released on the same day. During their further investigation, which also included “Per”, the police requested that the un‑shown portions of the recordings made by JB be disclosed. JB, and the editor and head of the applicant company’s documentary unit, refused the request, following which the prosecutor requested a court order compelling the applicant company to hand over the un-shown footage. The city court refused to grant the request, having regard to the need of the media to be able to protect their sources and considering that the raw material had little or no evidential value, as it essentially covered the same matter as the broadcast footage. The decision was upheld on appeal. Having been granted leave to appeal, the public prosecution brought the case before the Supreme Court which found against the applicant company, so that the latter was compelled to hand over limited specified unedited footage and notes which related solely to “Mogens” and his activities in Denmark and India, including the recordings made outside the Indian hotel of the Indian boy. However, the recordings and notes were exempted from the order whenever the handover would entail a risk of revealing the identity of any of three named persons, namely the victim, the police officer and the hotel manager’s mother. The remainder of the unedited footage was to remain protected,including the un-shown material relating to “Per” and the meetings of the Paedophile Association. The police eventually decided to discontinue its investigation against “Mogens”.

Law: The protection of journalistic sources is one of the cornerstones of freedom of the press. Limitations on the confidentiality of journalistic sources call for the most careful scrutiny and cannot be compatible with Article 10 unless justified by an overriding requirement in the public interest. In the present case however, when JB had been working undercover, the persons talking to him had been unaware that he was a journalist. Also, owing to the use of a hidden camera, the participants had been unaware that they were being recorded. Both measures had been used in relation to “Mogens” and the Indian boy. The majority of the persons participating in the programme had not of their free will been assisting the press in informing the public about matters of public interest or matters concerning others, on the contrary. Nor had they consented to being filmed or recorded. Consequently, those participants could not be regarded as sources of journalistic information in the traditional sense. Against this background the applicant company had not been ordered to disclose its journalistic source of information but rather to hand over part of its own research-material. While Article 10 might be applicable in such a situation and while a compulsory hand-over of research material might have a chilling effect on the exercise of journalistic freedom of expression, this matter could only be properly addressed in the circumstances of a given case. The Court was not convinced that the degree of protection under Article 10 to be applied in a situation like the one at hand could reach the same level as that afforded to journalists, when it comes to their right to keep their sources confidential. That protection is two-fold, relating not only to the journalist, but also and in particular to the source who volunteers to assist the press in informing the public about matters of public interest.

The Supreme Court’s decisionto compel the applicant company to hand over the unedited footage in which “Mogens” or the Indian boy had participated, and JB’s notes which had related thereto, had constituted an interference within the meaning of Article 10 which was“prescribed by law” and had pursued the “legitimate aims” of preventing disorder or crime and protecting the rights of others.As to the question whether that interference had been “necessary in a democratic society” the Court noted inter alia the Supreme Court’s finding that the identity of the journalistic sources in the traditional sense, namely – the victim, the police officer and the hotel manager’s mother – should remain protected. Moreover, the Supreme Court had acknowledged that the content of the programme were topics of serious public interest. The non-edited recordings and the notes made by the journalist JB could assist the investigation and production of evidence in the case against “Mogens”, whose identity had already been known to the police. Having balanced the various conflicting interests, the Supreme Court had ordered that the applicant company hand over only a limited part of the unedited footage, namely those recordings in which Mogens or the Indian boy had participated, and JB’s notes which related thereto. As regards the remainder of the unedited footage and notes, including the un-shown material relating to “Per” and the meetings of the Paedophile Association, the Supreme Court had found for the applicant company. In these circumstances the order to compel the applicant company to hand over the limited unedited footage in which “Mogens” or the Indian boy had participated, and JB’s notes relating thereto had not been disproportionate to the legitimate aim pursued, and that the reasons given in justification of those measures had been relevant and sufficient. Manifestly ill-founded.

© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.

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