Publication of picture of terror victim

Case no. 92/2023
Judgment delivered on 23 February 2024

The Public Prosecutor
vs.
T

On 30 October 2020, T published an article about a terrorist act in France on his online media site. The article included a picture of a woman with her throat slit.

T was charged with violation of Section 264d(2), cf. Subsection (1), of the Danish Criminal Code for unlawfully publishing the picture under particularly aggravating circumstances. T was acquitted in the District Court, but the High Court found him guilty of the charge and sentenced him to three months’ conditional imprisonment on the condition of 80 hours of community service.

The case before the Supreme Court concerned in particular whether the conviction and sentencing were in accordance with the European Court of Human Rights’ case law on the bal-ancing of the right to private life under Article 8 against the right to freedom of expression under Article 10 of the European Convention on Human Rights.

The Supreme Court stated that the use of pictures may serve the purpose of documenting events, and that images can have a much more immediate and powerful impact than the written word. Thus, the use of images may be protected by the considerations underlying Article 10 because of the impact they can have. On the other hand, images of a violent event may contribute to amplifying the offence inherent in the publication.

The Supreme Court found that the function of the article with the accompanying picture could be equated with that of the traditional media, so that the protection of the article should be assessed according to the same standard as that which applies to the traditional press with regard to protection under Article 10. When assessing the consideration of freedom of expression, the Supreme Court emphasised that the article concerned Islamist terrorism, which is a subject of major importance to society, and that the picture was used to illustrate the bestial manner in which the terrorist murder of the woman had been committed.

This should be weighed against the consideration for the murdered woman’s legacy and the consideration for the surviving relatives (protection of private life). The Supreme Court stated that in assessing the offence, it was important that the woman was not immediately recognisable in the picture, as her left arm covered the upper part of her face, and that there were no circumstances in the picture that could serve to damage the woman’s legacy.

Based on these circumstances, the Supreme Court held that the consideration for freedom of expression outweighed the consideration for her private life. Accordingly, the disclosure of the photo could not be regarded as unlawful. The Supreme Court thus upheld the District Court’s judgment and acquitted T.