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Introduction

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.


PET believed that the book contained information that threatened national security, claiming that Scharf had breached his duty of confidentiality when contributing to the book. In January 2019 the Danish prosecution's case re. Scharf’s alleged breach of his professional secrecy was decided on by the District Court of Copenhagen.


The District Court of Copenhagen's judgement

In a more than 300 pages long judgement, the district court of Copenhagen found Scharf to be guilty of breaching his professional secrecy in 28 separate instances by his contribution to the book Seven Years

for PET.


Based mainly on the current PET agency chief's witness statement, the court found it proven that the contents of the book had an inherent risk that PET's collaborators and partners would no longer trust PET with safeguarding confidential information, and that the book therefore risked impairing PET's possibility of carrying out their work.


Furthermore, some of the quotes provided by Scharf concerned PET's working methods. The court, therefore, concluded, that the book entailed a risk of unveiling and exposing private co-operators, thereby risking serious harm to PET. Due to Scharf's entrusted position as the former agency chief and the number of violations in the book, the court found that Scharf had violated the Danish Criminal Code.


As a result, Scharf was sentenced to four months of imprisonment whilst his earnings from the book were confiscated. Scharf later appealed the case which is now pending before the Eastern High Court.


The Grevil Case and Risks of Harmful Effect

In 2005, former intelligence agent from the Danish Defence Intelligence Service, Frank Grevil, was sentenced to the exact same amount of time for breaching his duty of confidentiality by leaking confidential information about the foundation of Denmark's participation in the war in Iraq to a journalist.


The case was initiated at the District Court of Copenhagen but was appealed to the Eastern High Court. Not only the sentencing, but also the reasoning in the Grevil and the Scharf case bears striking resemblance; in line with the Grevil case, the Court in the Scharf case abandoned to look for an actual occurred harm and instead accentuated the potential harmful effect of the leakage.


However, there are also differences in the two cases; in the Grevilcase, Grevil attempted to invoke the Danish Criminal Code’s section 152e according to which, a breach of a duty of confidentiality is not penalised if the confidential information has been leaked in order to disclose information of public interest.


In contrast, Scharf did not attempt to invoke section 152e. Almost as a commentary thereon, the District Court of Copenhagen in the Scarf case stated that it was a "particularly aggravating circumstance" that Scharf had passed on the information to a journalist in order to gain an illegal economical gain.


The Potential Implications of the Scharf Case for the Press

Following the Eastern High Court's decision in the Grevil case in 2005, the District Court of Copenhagen considered the case against the two journalists and the editor-in-chief of the news paper that wrote and published the information obtained from Grevil.


The three were charged for illegally disseminating confidential information in violation of the Danish Criminal Code. All three were acquitted by the District Court due to the fact that the confidential information had been of "considerable public interest" at the time it was published, and that the three accused had, therefore, acted in the general public interest.


Their breach had therefore been justified under the Danish Criminal Code's section 152e - the same provision that Grevil himself without success had attempted to invoke.


Almost as a complete mirror image case, the Danish prosecutor has charged the journalist, the publisher and the editor-in-chief, responsible for writing, editing and publishing Seven Years for PET in the Scharfcase. These charges might be pursued following the decision of the appeals case against Scharf.


The question that arises is whether the three accused in such case will be held to the same standard as the former head of PET, and if so,what will this entail?


For when it comes to the press, can one really distinguish between economic and idealistic interests? How will the aggravating circumstances in the Scharf case apply to media that inherently write, edit and publish in pursuant of an economic aim?


And will it be of any significance that Scharf himself did not attempt to justify the breach under the Danish Criminal Code's Section 152e? In any case, it will be interesting to follow the outcome of Scharf's appeal case and the prosecutor's and - if the matter is also pursued against the media - eventually the Danish court's view of the liability of the media in the light of the freedom of the press and its role as public watchdog.


For more information regarding the legality of the imposed injunction against one of Denmark's largest publishing houses, JP/Politikens Hus A/S (JPPOL) against the publication of Seven Years for PET, please see our articles in the 2017 and 2018 edition of Media Law International.

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.

Biographies

DENMARK

Duty of Confidentiality And Media


Written by Martin Dahl Pedersen and Alexandra Ai-xian Li,

Kromann Reumert Law Firm

Martin Dahl Pedersen

Alexandra

Ai-xian Li

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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.

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In January 2019, the District Court of Copenhagen sentenced the former head of the Danish security and intelligence service to four months of imprisonment for leaking information about the intelligence service’s work to the press. The case drawstrings to an earlier case regarding former intelligence agent, Frank Grevil, and begs the questions of whether or not the journalists and publisher involved should expect to be sentenced.