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The case has gone all the way to the Supreme Court due to something that might to some appear as a mere technicality; the fact that the injunction was directed and issued against the publishing house JPPOL itself and not against the editors-in-chief personally in spite of them being the persons responsible under the Danish Media Liability Act.
This "technicality" constitutes a crucial deviation from the Danish Media Liability Act's liability regime that stipulates that only a specific group of actors are accountable for the contents of a media publication such as a newspaper. If upheld, the injunction could make it necessary for the media industry to rethink the traditional structure and division of responsibilities between publishing houses and publications/editors-in-chief.
The appeal of the case to the Supreme Court was requested by JPPOL's trade organisation, Danske Medier, due to the decision's possible significance for publishing houses and newspapers in Denmark – Danske Medier's members. The case will most likely be argued before the Supreme Court later this year. Kromann Reumert represents Danske Medier.
The division of responsibilities according to the Danish Media Liability Act
The Danish Media Liability Act's liability regime 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 editor is defined as the person, "who is authorized to make the final decision on the contents of a medium".
The purpose of this division of responsibility 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. This is achieved by depriving the publisher of control and, more to the point, the motivation to exercise such control over the specific contents of a publication. As such, the regime plays an essential part in safeguarding editorial liberty and freedom of the press.
Case background: A threat to national security?
In 2016 the Danish Civil Security Service (In Danish: "Politiets Efterretningstjeneste" or simply "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.
Based solely on the marketing material of the book, PET argued that the book contained sensitive information, which if published could impose a threat to national security. The injunction was initially issued against the author and the parent company of the publishing house. However, once the injunction became publicly known, it caused an uproar in the media industry, resulting in several media and bookstores announcing that they would publish and/or release the contents of the book, wholly or in part, in spite of the court-granted injunction. Amongst these media were Ekstra Bladet and Politiken, both independent newspapers published by JPPOL.
At 2am on the 8th of October 2016, PET requested and was granted an immediate injunction forbidding JPPOLto publish,refer to, or discussthe contents of the book. In addition,the court ordered the seizure of JPPOL's copies of the book. JPPOL was not notified of PET's requests until after the court had ruled in their favour. JPPOL appealed the court order, questioning the legality of the injunction, including the fact that JPPOL was not the proper addressee of the injunction.
In December 2016 the Eastern High Court upheld the ruling. Following this, Danske Medierrequested to have the case heard by the Supreme Court on behalf of their member, JPPOL. Being a matter of principle, the appeal regarding the rightful addressee of the injunction was granted.
2014 case law
In 2014 the Danish Supreme Court ruled on a similar case regarding the prohibitory injunction against a television show broadcast by the Danish Broadcasting Corporation (In Danish: "Danmarks Radio" or simply "DR"). In that instance the injunction was directed against the medium DR, more specifically "DR by the managing director Maria Rørbye". DR argued that the injunction should rightfully have been directed against the managing director and editor-in-chief Maria Rørbye personally, as the person liable under the Danish Media Liability Act.
In the case, the Supreme Court stated that the Danish Media Liability Act does not specify who the rightful addressee of an injunction prohibiting a publication is, and that an injunction therefore may be "…directed against the person(s) on whom it befalls the duty to omit [the violating action]". The court further stated that these persons in DR's case was the senior management of DR and granted the injunction in accordance with the claimant's request.
Fundamental structural and operational differences
Although apparently similar, seen from the publishing side there are vital differences between the 2014 case and the one currently pending before the Supreme Court;the most obvious one being the structural and operational variations between JPPOL and DR. DR is a government owned medium. According to law, DR's senior management are responsible for directing DR's overall operations, whilst the managing director is responsible for the day-to-day coordination of DR's programmes. More importantly, DR's managing director is also the editor-in-chief, responsible under the Danish Media Liability Act.
In contrast, JPPOL is a private publishing house that came into existence after the commercially motivated merger between two of Denmark's leading newspaper houses. Since the merger, JPPOL now publishes three daily newspapers that vary in content type and political views. In order to uphold the independence and diversity of these publications, the merger that resulted in JPPOL, was contingent on the fact that JPPOL itself would have no influence on the publications' editorial contents. As a result, and in accordance with the Danish Media Liability Act, each of the three newspapers have a responsible editor-in-chief, who is solely responsible for the contents of each paper.
Issues: Safeguarding editorial independence and freedom of the press
A state of law that allows an aggrieved party to obtain an injunction against the publisher rather than against the persons responsible for the contents of a publication under the Danish Media Liability Act will, according to Danish newspapers, undermine the very aim of the Act's liability regime, increasing the risk of censorship exerted by the publishers (the "Chilling effect").
Although the Danish Media Liability Act does not directly stipulate that its liability regime applies in relation to prohibitory injunctions, according to Danish newspapers, it only stands to reason that such cases should follow the general principles of liability in media law due to the invasiveness of an imposed injunction.
A deviation from the liability regime also causes inconsistencies and insecurities in regards to the question of who is ultimately responsible for the contents of a publication. An extension of the group of liable persons under the Danish Media Liability Act in cases regarding injunctions could result in situations where criminal charges and actions for damages are attempted brought against others than the author or editor-in-chief behind a violating publication (the person group liable under the Act). It may also be the case that an author or editor-in-chief is met with an action for damages or criminal charges without actually having been part in the case on the same matter regarding an injunction.
Ruling set for later this year
It is not yet possible to determine what the outcome of the pending case will be. During the 2014 case the Supreme Court clearly stated that the Danish Media Liability Act's liability regime does not apply to the question of who the rightful addressee of an injunction directed against a media is.
However, according to Danish newspapers, the circumstances of that case widely differ from the one currently pending. In addition, a deviation from the Danish Media Liability Act's liability regime could threaten to undermine the very purpose of that regime, set up to prevent censorship from a publisher in respect of the editorial freedom of the editor. Regardless of the outcome, the Supreme Court's decision is highly anticipated by all parties and the Danish media industry.
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
Just now, the Supreme Court in Denmark is considering a case regarding the legality of an imposed injunction against one of Denmark's largest publishing houses, JP/Politikens Hus A/S or simply "JPPOL". JPPOL is a publishing house established in 2003 as a merger between two newspaper houses. JPPOL publishes three of Denmark's leading daily newspapers;Ekstra Bladet, Morgenavisen Jyllands-Posten and Politiken.
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.