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In March 2020, the Danish Supreme Court delivered the first judgment in one of several cases arising from one of the largest media scandals in Danish history. The case concerned whether a Danish member of the European Parliament, Morten Helveg Petersen, was entitled to compensation of DKK75,000 or approximately EUR10,000 for invasion of his privacy due to the unauthorized disclosure and use of his credit card transaction information.


The case takes its beginning when an IT employee with Nets, a Danish provider of digital payment services, in the period 2008 to 2011 gained access and acquired information regarding several public figures' personal data, including information regarding their credit card transactions, from Nets. As agreed, and for payment, the IT employee continuously passed on the information to a Danish weekly gossip magazine published by Aller Media.


Consequently, the IT employee was sentenced to one year and six months in prison and confiscation of his earnings from the gossip magazine (DKK365,503 or approximately EUR49,000). The former editors-in-chief were sentenced to one year and three months in prison and one year respectively, whereas Aller Media was sentenced to pay a fine of DKK10,000,000 or approximately EUR1,344,000.  


In the aftermath of the criminal cases, several public figures, including Morten Helveg Petersen, commenced civil proceedings against the IT employee, the two former editors-in-chief, and Aller Media (the latter represented by Kromann Reumert) with claim for compensation for invasion of privacy.


The case of Morten Helveg Petersen was ultimately heard by the Danish Supreme Court. By the time the case was heard by the Supreme Court, Morten Helveg Petersen had reduced the claim from DKK250,000 to DKK75,000 (or approximately EUR33,500 and 10,000 respectively).


The Danish Supreme Court's judgement

As to the facts of the case, the Supreme Court found it proven that the IT employee between June 2008 to September 2009 10-11 times had gained access to information regarding Morten Helveg Petersen's credit card transactions, including the time, amount, and in some cases the place, and passed on the disclosures to The gossip magazine. The transactions concerned payments in hotels and restaurants, ordering of travel tickets, and purchases in department stores.


Further, the Supreme Court found it proven that the gossip magazine had published one article in which information regarding a credit card transaction of a purchase from a night club was used.


Finally, the Supreme Court found it proven that Morten Helveg Petersen from November 2008 to February 2009 was included in a list of public persons of interest prepared by the IT employee and passed on to the gossip magazine.


The Supreme Court then turned to the question whether Morten Helveg Petersen was entitled to compensation for invasion of privacy due to the unauthorized disclosure and use of his credit card information. To be entitled to compensation for invasion of privacy under Danish law, the defendants must firstly have violated Morten Helveg Petersen's right to privacy and the violation must be of a certain gravity. Secondly, the offence in question must be fit for violating Morten Helveg Petersen's self-image and self-sense of honor (meaning Morten Helveg Petersen's view on his own worth and reputation).


By stating that the acquisition, disclosing, and use of Morten Helveg Petersen's credit card transaction data constituted a gross violation of his privacy, the Supreme Court found, not surprisingly, that the first requirement was met.


Regarding the second requirement, the Supreme Court turned to the preparatory works, in which the requirements for compensation for some violations are outlined. As the preparatory works were silent with respect to the violations in dispute, the Supreme Court referenced the preparatory works from 1997 in which it is specified regarding physical violence that a victim of physical violence is only entitled to compensation if the physical violence was  carried out in a manner "particularly humiliating or scornful".


The Supreme Court then stated that the violations in the present case consisted of I) Morten Helveg Petersen being included in a list of public persons of interest which was passed on to the gossip magazine; II) the unlawful acquisition and passing of his credit card transaction information; and III) the use of the disclosed information in an article in the gossip magazine. In this regard, the Supreme Court noted that the transactions did not concern sensitive personal matters (payments in hotels and restaurants, ordering of travel tickets, and purchases in department stores).  


Using the violence-example as interpretative aid, the Supreme then found that irrespective of the fact that Morten Helveg Petersen had been subject to gross violations of his privacy, the violations were not qualified to affect his self-image and self-sense of honor based on the character and the scope of the violations in question. Hence, the violations did not meet the second requirement.


Consequently, and in line with the judgements from the District Court of Lyngby and the Eastern High Court, the Supreme Court dismissed the claim.


The significance of the Supreme Court judgement

In accordance with the Supreme Court judgement, even gross violations of a person's privacy do not entitle a person to compensation for invasion of privacy if the violation was not carried out in a manner particularly humiliating or scornful.


At first glance, the judgement might come off as quite burdensome. However, the explanation is to be found in the reasoning by the Supreme Court.


The Supreme Court underlined that none of the transactions in question concerned sensitive personal matters and that the monitoring of the transaction was not systematic. Hence, the Supreme Court found that both the character and scope of the offences in question were not fit for violating Morten Helveg Petersen's self-image and self-sense of honor.  


Less than two weeks prior to the judgment in hand, the Danish Supreme Court delivered a judgment in a somewhat similar case, in which an employer conversely was ordered to pay compensation for invasion of privacy to his employee. The case concerned an employer who, without fair grounds, systematically and on a continuous basis monitored his employee via live video surveillance with the purpose of controlling and disciplining her. The Supreme Court stated that the employee, rightly, had felt that she was under constant surveillance which caused her great mental strain. Based thereon the Supreme Court concluded that the unlawful monitoring in question had the necessary gravity and was fit for violating the employee's self-image and self-sense of honor. In other words, the video surveillance in question was humiliating and scornful.


Opposed to the case with Morten Helveg Petersen, the offences constituted systematic monitoring. Further, the purpose of the monitoring was for a superior to control and discipline his subordinate. These elements combined rendered the violations humiliating and scornful.


Even though the judgment in the Morten Helveg Petersen-case came to a surprise for some, it is in perfect line with fundamental principles of law. The reasoning is to steer clear of an arbitrary application of the law by setting a more or less objective criterion for meeting a claim for compensation for invasion of privacy. The objective criterion simply being that the violation must be humiliating.


In conclusion, the two judgments underline the basic principle behind compensation for invasion of privacy under Danish law by emphasising that even gross violations of a person's privacy do not entitle the person to compensation if the element of humiliation is absent.


Despite the Supreme Court's judgement in the Morten Helveg Petersen-case, several of the remaining cases have not been dropped and continue therefore at present before the District Court of Copenhagen.

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

No Compensation for Invasion of Privacy: Danish Supreme Court Decision


Written by Martin Dahl Pedersen & Amina Larsen,

Kromann Reumert Law Firm

Martin Dahl Pedersen

Amina Larsen

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Amina Larsen specialises in litigation and is a part of Kromann Reumert's IP team working with Sports, Media and Entertainment. She joined Kromann Reumert in 2020 and has been working as an assistant attorney since graduating from the University of Copenhagen Faculty of Law in 2020. In 2018, Ms Larsen studied two semesters abroad at the University of Montpellier, at which she studied both international and French law. Ms Larsen 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 diversified cases regarding intellectual property right and is currently assisting Martin Dahl Pedersen with the pending cases regarding Aller Media.

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In March 2020, the Danish Supreme Court delivered a judgment dismissing a claim for compensation for invasion of privacy, despite having found that the claimant had been subject to gross violations of his privacy. This article examines the judgment and its significance as jurisprudence in relation to compensation for invasion of privacy under Danish Law.

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