Danish Supreme Court on Legality of Publishing image of a woman killed in terrorism
23 FEB 2024
THE SUPREME COURT
Publishing an image of a woman killed in an act of terrorism was legal
Case 92/2023
Judgment delivered on 23 February 2024
The Attorney General
v
T
On October 30, 2020, T published an article regarding a terrorist act in France on his online media. The article included a picture of a woman with a cut throat.
Charges were brought against T for violation of Section 264 d, subsection of the Criminal Code. 2, cf. subsection 1, by unjustifiably publishing the image under particularly aggravating circumstances. T was acquitted in the district court, but was found guilty of the indictment by the high court’s verdict and sentenced to 3 months’ probation with conditions of community service for 80 hours.
The case concerned the Supreme Court in particular whether the conviction and sentencing were in accordance with the practice of the European Court of Human Rights on balancing the right to privacy 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 images can have the purpose of documenting events, and that, moreover, images can have a much more immediate and powerful effect than the written word. Thus, the use of images may be protected under Article 10 considerations because of the impact they can have. On the other hand, images of a violent event can help to reinforce the offense inherent in the publication.
The Supreme Court found that the function of the article with the accompanying image could be equated with that of the traditional media, so that the protection of the article had to be assessed according to the same yardstick as that which applies to the traditional press in terms of the protection under Article 10. When assessing the consideration of freedom of expression, the Supreme Court placed considerable emphasis on the fact that the article concerned Islamist terrorism and thus a subject of significant societal interest, and that the image was used in that connection to illustrate the bestial way in which the terrorist murder of the woman had been committed on.
Against this was the consideration of the murdered woman’s legacy and the consideration of survivors (the protection of privacy). The Supreme Court stated that when assessing the violation, emphasis had to be placed on the fact that the woman was not immediately recognizable in the photo, as her left arm covered the upper part of the face, and that there were no circumstances in the photo that were suitable to incriminate the woman’s legacy.
Under the stated circumstances, the Supreme Court found that the consideration of freedom of expression outweighed the consideration of privacy. The disclosure of the image could not then be considered unjustified. The Supreme Court then confirmed the judgment of the district court, so that T was acquitted.
Held: The concept of private life includes elements relating to a person’s right to his or her image, and the publication of a photograph falls within the scope of private life. A person’s image constitutes one of the chief attributes of his or her personality, as it reveals the person’s unique characteristics and distinguishes the person from his or her peers.
The right of each person to the protection of his or her image is thus one of the essential components of personal development and presupposes the right to control the use of that image. Whilst in most cases the right to control such use involves the possibility for an individual to refuse publication of his or her image, it also covers the individual’s right to object to the recording, conservation and reproduction of the image by another person (see, for instance, López Ribalda and Others v. Spain [GC], nos. 1874/13 and 8567/13, § 89, 17 October 2019, with further references).