J.O.J., a Danish national, is a journalist and lives in Copenhagen. He was at the time of the events giving rise to the present case, and still is, employed by Danmarks Radio, assigned to its Sunday News Magazine. The latter is known as a serious television programme intended for a well-informed audience, dealing with a wide range of social and political issues, including xenophobia, immigration and refugees.
In 1985 the newspaper Information published an article describing the racist attitudes of members of a group of young people, calling themselves “the Greenjackets”. In the light of this article, the editors of the Sunday News Magazine decided to produce a documentary on the Greenjackets. Subsequently the applicant contacted representatives of the group, inviting three of them together with a social worker employed at the local youth centre, to take part in a television interview. During the interview, which was conducted by J.O.J., the three Greenjackets made abusive and derogatory remarks about immigrants and ethnic groups in Denmark.
It was broadcast by Danmarks Radio as a part of the Sunday News Magazine. The programme consisted of a variety of items, for instance on the martial law in South Africa, on the debate on profit-sharing in Denmark and on the late German writer Heinrich Böll.
Following the programme no complaints were made to the Radio Council, which had competence in such matters, or to Danmarks Radio but the Bishop of Ålborg complained to the Minister of Justice. After undertaking investigations, the Public Prosecutor instituted criminal proceedings in the City Court of Copenhagen against the three youths interviewed by the applicant, charging them with a violation of Article 266 (b) of the Penal Code for having made the racist statements.
J.O.J. was charged, under Article 266 (b) in conjunction with Article 23 with aiding and abetting the three youths; the same charge was brought against the head of the news section of Danmarks Radio.
The City Court convicted the three youths, one of them for having stated that “niggers” and “foreign workers” were “animals”, and two of them for their assertions in relation to drugs and “Perkere”.
As regards J.O.J., the City Court found that he had visited the Greenjackets and after a conversation with Mr Axholt, amongst others, agreed that the three youths should participate in a television programme. The object of the programme had been to demonstrate the attitude of the Greenjackets to the racism, previously mentioned in the article in Information, and to show their social background. Accordingly, so the City Court held, J.O.J. had himself taken the initiative of making the television programme and, further, he had been well aware in advance that discriminatory statements of a racist nature were likely to be made during the interview. J.O.J had encouraged the Greenjackets to express their racist views, which, in so far as they were broadcast on television, in itself constituted a breach of Article 266 (b) of the Penal Code. The statements were broadcast without any counterbalancing comments, after the recordings had been edited by J.O.J., who was accordingly guilty of aiding and abetting the violation of Article 266 (b).
J.O.J. appealed against the City Court’s judgment to the High Court of Eastern Denmark, and then the Supreme Court, which in their turn, dismissed the appeal.
The case has been considered in the ECHR, the jugers of which found a violation of Article 10 (art. 10) of the European Convention on Human Rights. The ECHR ruled that this violated the freedom of expression because the manner in which the statements were presented by J.O.J. was “sufficient to outweigh the effect, if any, on the reputation of others” and that there was insufficient evidence to show that the restriction was “necessary in a democratic society.”