Denmark / The Supreme Court / Sag BS-15047/2022-HJR af 18/08/2023
Country
Denmark
Year
2023
Decision/ruling/judgment date
Friday, August 18, 2023
Incident(s) concerned/related
Other forms of hate speech
Related Bias motivation
Religion
Groups affected
Muslims
Court/Body type
National Court
Court/Body
The Supreme Court (Højesteret)
Key facts of the case
The case concerns a politician who was convicted under penal code § 267 for defamation of a Somali woman by telling her and the people around them:
"And the Muslim Somali woman who stands there, as I have noticed many times on Istedgade, where she makes herself available to customers. Yes, you! Sorry I don't speak Negro. Now I'll say it in Negro: bububu. Now you get it.".
As Istedgade is a place known for its sex workers, the woman and the Police found this defamatory, in addition to the rest of his comment's content.
Main reasoning/argumentation
In the lower court case, where the politician was found guilty of defamation and hate crime, the calculation of compensation was set at 30.000 DKK. However, the Supreme Court emphasized that the statement was made during a demonstration with very few participants and the Supreme Court agreed that the Appellant could not be seen on the video included in the case. Therefore, the compensation amount was reduced. The Supreme Court case did not regard the question of guilt as the judgement was upheld based on the High Courts assessment. Thus, the Supreme Court only regarded the calculation of compensation for damages. In the High Court, the court decided for a compensation on 5.000 DKK with the reason that the statement from the politician was made during a demonstration with very few participants, and because of the fact that that it does not appear from the three-hour video clip that was published on social media that the offense was directed at the injuried party. The Supreme Court decided that the compensation should be higher than the High Court (15.000) after an overall assessment of the seriousness of the violation, the nature of the actions of the appellant, the former offenses and the circumstances in general.
Is the case related to the application of the Framework Decision on Racism and Xenophobia, the Racial Equality Directive?
Key issues (concepts, interpretations) clarified by the case
The amount of damages must be determined on the basis of an overall assessment taking into account the seriousness of the violation, the nature of the act, and the circumstances in general. It should be noted that Act no. 1719 of 27 December 2018 amended section 26(2) of the Tort Liability Act has the purpose of increasing the level of compensation for certain breaches of peace and defamation. It is the intention of the amendment that the level of tort compensation in cases of defamation of peace and honor must - as a starting point - be increased three times compared to the previous level, which is why The Supreme Court fixed the compensation at DKK 15.000 - as it was earlier set at DKK 5000.
Results (sanctions, outcome) and key consequences or implications of the case
The Supreme Court recalculated the compensation for damages at DKK 15,000.
Key quotation in original language and its unofficial translation into English with reference details
"Som anført af landsretten blev udtalelsen fremsat under en demonstration med ganske få deltagere. Der er for Højesteret enighed om, at det kan lægges til grund, at man ikke kan se A på den video, der indgår i sagen"
"As stated by the High Court, the statement was made during a demonstration with very few participants. The Supreme Court agrees that it can be assumed that that A cannot be seen on the video included in the case."
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