Article 7 - Respect for private and family life
Article 8 - Protection of personal data
Key facts of the case:
The case concerned is a private action addressing the authorities' ability to copy and store an author's diary in connection with a previous criminal case. The author was denied his request for the Danish Security and Intelligence Service (Politiets Efterretningstjeneste) and the Danish National Archives (Rigsarkivet) to hand over or destroy copies of his personal diary which was in their possession in connection with a previous criminal case from 1981. In 1981, the author had been arrested and charged with violation of Section 108 of the Danish Criminal Code by having had illegal connections with foreign intelligence services. In connection with a simultaneous search of the author's residence, the Danish Security and Intelligence Service came into possession of his diary. In 1982, the case was settled with a dismissal of charges, after which the original diary was returned to the author. The Danish Security and Intelligence Service kept a copy of the diary, which the author became aware of in 2009. After this, the author spent several years trying to get the authorities to hand over or destroy the copies of the diary in question. The relevant legal norms in case were Danish Archive Law, Danish Copyright Law and the rights in Articles 7 and 8 of the Charter of Fundamental Rights of the European Union.
Key legal question raised by the Court:
The case concerned whether the the author's right to privacy and data protection under Articles 7 and 8 of the EU Charter meant that he was entitled to have all or part of a copy of his diary in the possession of the authorities handed over or destroyed.
Outcome of the case:
The High Court did not find it contrary to Article 7 of the EU Charter that parts of the diary were archived as far as the parts that were included in the investigation of the criminal case against the author or used in the work of the intelligence service in general. Therefore, the High Court could not grant the author's claim for extradition or destruction of the entire diary. Furthermore, the author did not present the diary in its entirety as evidence during the case, the High Court was not able to assess whether individual pages in the diary were considered not to have the necessary connection to the authorities' investigation of the criminal case against the author or authorities’ work in general. Therefore, the author could not succeed in his alternative claim that the authorities should hand over or destroy the entire diary, except for some specific pages that were of historic interest. However, the High Court recognized that the diary undoubtedly contained several personal and private notes and records about the author, not being of importance to the criminal case against the author or to the intelligence service's work in general. Thus, the High Court found that in connection with the archiving of the files from the criminal proceedings against the author, the Danish Security and Intelligence Service had not complied with Article 7 and 8 of the EU Charter on the right to respect for privacy due to the fact that the agency should have carried out an assessment of whether it was necessary and proportionate to archive the entire copy of the diary, including the author's personal and private notes and records. The High Court held that the continued possession of the entire diary was not in accordance with Article 7 and 8 of the EU Charter, but due to the evidentiary issue, the author's claims could not be upheld. The authorities were therefore acquitted. The author appealed the judgement to the Danish Supreme Court.
“In this case, the Plaintiff has in particular claimed that the copying of the Plaintiff's diary was unauthorised, and that the copies of the diary must be regarded as seized items which must be returned in the same way as the original was returned. The Danish national security and intelligence service (PET) has unlawfully copied the dairy in violation of the exclusive copyright, and the continued storage and possible making available therefore constitutes an infringement of his copyright. Furthermore, the copying and storage of copies of his diary is contrary to Article 8 of the European Convention on Human Rights, as it constitutes an unlawful interference with his right to respect for private life. He has also claimed that the transfer of the diary copies to the Danish National Archives constitutes a processing of personal data in violation of the Law Enforcement Directive and a violation of Articles 7 and 8 of the EU Charter of Fundamental Rights. The Danish national security and intelligence service (PET) and the Danish National Archives must destroy and/or return all copies of the diary copy, cf. Section 84 of the Danish Copyright Act, and pay an estimated compensation for non-economic damage, cf. Section 83(3) of the Danish Copyright Act.”
[…]
“With regard to the provisions of the Charter of Fundamental Rights relied on by the Plaintiff in the summary pleading and the statement of claim, the High Court finds - in the light of Article 51 and Article 52 of the Charter on the scope and extent of the Charter - that Article 7 and Article 8 of the Charter cannot lead to a different assessment from that made in respect of Article 8 of the Convention on Human Rights.”
“Under denne sag har Sagsøger navnlig gjort gældende, at det var ulovhjemlet, at Sagsøgers dagbog blev kopieret, og at dagbogskopierne skal anses for beslaglagte effekter, som skal tilbageleveres på samme måde, som originalen blev det. PET har foretaget retsstridig eksemplarfremstilling i strid med den ophavsretlige eneret, og den fortsatte opbevaring og mulige tilgængeliggørelse udgør derfor en krænkelse af hans ophavsret. Endvidere er kopiering og opbevaring af kopier af hans dagbog i strid med artikel 8 i Den Europæiske Menneskerettighedskonvention, idet det udgør et ulovligt indgreb i hans ret til respekt for privatliv. Han har tillige gjort gældende, at overførelsen af dagbogskopierne til Rigsarkivet udgør en persondatabehandling i strid med retshåndhævelsesdirektivet og en krænkelse af artikel 7 og 8 i EU’s Charter om grundlæggende rettigheder. PET og Rigsarkivet skal destruere og/eller tilbagelevere samtlige eksemplarer af dagbogskopien, jf. ophavsretslovens § 84, samt betale en skønsmæssig opgjort godtgørelse for ikke økonomisk skade, jf. ophavsretslovens § 83, stk. 3.”
”Med hensyn til de bestemmelser i EU's Charter om grundlæggende rettigheder, som Sagsøger har påberåbt sig i det sammenfattende processkrift og påstandsdokument, finder landsretten – i lys af chartrets artikel 51 og artikel 52 om chartrets anvendelsesområde og rækkevidde – at chartrets artikel 7 og artikel 8 ikke kan føre til en anden bedømmelse end det anførte vedrørende menneskerettighedskonventionens artikel 8.”
