Copyright © Media Law International 2018. All Rights Reserved.
Specialist Guide to the
Global Leaders in Media Law Practice
Background: The Danish Civil Security Service's injunction Against the Publishing of the Book Seven Years for PET
In 2016 the Danish Civil Security Service (In Danish: "Politiets Efterretningstjeneste' or "PET") filed a prohibitory injunction against the publishing of the book Seven Years for PET. The book was written by journalist Morten Skjoldager and is an insider narrative of PET's operations based on interviews with the former agency chief, Jakob Scharf.
In October 2016, PET requested and was granted an injunction forbidding JPPOL to publish, refer to, or discuss the contents of the book. JPPOL and their trade organisation, Danske Medier (represented by Kromann Reumert), sought to have the injunction dismissed by the Danish Supreme Court due to the fact that it contravened the liability regime in the Danish Media Liability Act, which exhaustively provides that only the author behind a violating publication and the editor responsible for that publication may be held accountable for such content in relation to action for damages or criminal charges.
The purpose of this division of accountability is to ensure that the publisher, or, if the publisher is a corporation, the publisher's managements' responsibilities do not go beyond setting down the publication's overall principles and editorial baseline. The regime thus plays an essential part in safeguarding editorial liberty and freedom of the press.
2014 Supreme Court Ruling Directly Overruled
PET argued that the injunction was in accordance with the law, more specifically a Supreme Court ruling from 2014 in which an injunction directed against the medium Danmarks Radio ("DR") was upheld, based on the fact that the Danish Media Liability Act does not directly stipulate who the rightful addressee of an injunction prohibiting a publication is.
The new 2017 Supreme Court ruling directly overruled the outcome of the 2014 decision, stating that an injunction prohibiting a publication in a medium subject to the Danish Media Liability Act must be directed against the editor-in-chief, responsible for that publication, personally and not towards the media or publishing house as such.
In a rather peculiar fashion, the Supreme Court then stated that because PET had addressed the injunction towards JPPOL due to a misunderstanding of the ratio decidendi of the 2014 case, and that since this misunderstanding was excusable (i.e. because the ratio decidendi in the 2014 case was unclear) and in consideration of the predictability of the current state of law that ought to exist in a legal community, there were insufficient grounds to revoke the injunction against JPPOL in the present case.
Significance of the Ruling for Publishing and Media Houses Going Forward
Although the injunction was upheld in the specific case, the Supreme Court very clearly stated that going forward an injunction prohibiting a publication in a medium subject to the Danish Media Liability Act must
be directed against the editor-in-chief, responsible for that publication, personally and not towards the medium as such.
The Supreme Court's consolidation of the principles in the Danish Media Liability Act's liability regime is vital for the continued division of responsibility between a publisher and an editor-in-chief that inter alia enables one publishing house to own and operate a number of diverse publications, without there being any threat to the individual publication's overall principles and editorial baseline.
Had the Supreme Court ruled differently in the PET case, such structures would have faced difficulties
going forward. The ruling is thus an important component in the safeguarding of editorial liberty and freedom of the press.
(For more background information on the case see our article in the 2017 edition of MLI).
Martin Dahl Pedersen works within the IP, Media and Entertainment Group of Kromann Reumert, a leading law firm in Denmark. Mr Pedersen became a partner there in 2002. He has many years' experience advising clients in the broad media and entertainment field, particularly within the newspaper, publishing and sports sectors. Mr Pedersen has conducted media and copyright cases of general public importance in which significant principles have been determined, such as the use of digital technology in connection with copyright material and the limits of artistic freedom of expression in relation to the right of privacy. For example, he currently represents the large Scandinavian media conglomerate Aller Media in a controversial principle matter on the protection of journalistic sources in a case where Aller Media is facing criminal charges for abuse of information on celebrities' credit card transactions.
Kromann Reumert Law Firm
Martin Dahl Pedersen
In the 2017 edition of Media Law International we outlined the pending Supreme Court case regarding the legality of an imposed injunction against one of Denmark's largest publishing houses, JP/Politikens Hus A/S (JPPOL).
The case was decided on in November 2017 leaving no doubt as that the Danish Media Liability Act's liability regime does apply and must be complied with when applying for an injunction against a publication in a medium that is subject to the Act.
Alexandra Ai-xian Li specialises in litigation and arbitration and is a part of Kromann Reumert's IP team working with Sports, Media and Entertainment. She joined Kromann Reumert in 2015 and has been working as an assistant attorney since graduating from the University of Copenhagen Faculty of Law in 2016. In 2013 Ms Li studied a semester abroad at the University of Sydney, partaking in the University's JD program focusing on international, transnational and comparative law. Ms Li offers advice on matters related to intellectual property and media law and is the main point of contact at Kromann Reumert for publishing houses seeking legal advice via the trade association "Danish Publishers". She has assisted Martin Dahl Pedersen in several cases regarding the intellectual property rights of athletes and associations and is currently assisting Martin Dahl Pedersen with the pending case regarding JPPOL and PET.