Pedersen and Baadsgaard v Denmark

The applicants were journalists who had produced two television programmes investigating an alleged miscarriage of justice. The subject of the programme had been convicted of murdering his wife and had been sentenced to 12 years’ imprisonment. The programme interviewed an important witness – a taxi-driver – whose evidence had not been before the original criminal trial. The Denmark Court of Appeal subsequently ordered a re-trial of the Defendant based on this new evidence. However, proceedings for libel were brought against the journalists. The Domestic Court found the journalists had levelled a very serious charge of suppressing evidence against the named chief of police. They were fined DKr75,000. The Court of Appeal dismissed their appeal, but increased the fine to DKr110,000. The applicants took their case to the European Court contending that the interference represented by the conviction and fine were disproprtionate and not necessary in a democratic society.

Whether the fine imposed on the journalists was disproportionate and/or necessary in a democratic society

The applicants did not enjoy unfettered freedom of expression. Article 10(2) recognised that journalists had duties and responsibilities even when they were discharging their role as a public watchdog. The Court said: “Article 10 of the Convention does not guarantee a wholly unrestricted freedom of expression even with respect to press coverage of matters of serious public concern. Under the terms of paragraph 2 of the Article the exercise of this freedom carries with it ‘duties and responsibilities’, which also apply to the press. These ‘duties and responsibilities’ are liable to assume significance when, as in the present case, there is a question of attacking the reputation of a named individual and infringing the ‘rights of others’. Also of relevance for the balancing of competing interests which the Court must carry out is the fact that under Article 6(2) of the Convention individuals have a right to be presumed innocent of any criminal offence until proven guilty.”

This is an important decision because it emphasises that, even when dealing with matters of the utmost public interest, the press must avoid making direct allegations of fact against identifiable individuals. If they do so, then they can expect to be held to account for them under domestic defamation laws. This decision will raise interesting questions in Reynolds cases. Responsible journalism may include anonymising – so far as practically possible – those who are involved in a particular story if their identities are not important to the story as a whole.