1. The case was referred to the Court on 9 September 1993 by the European Commission of Human Rights ("the Commission") and on 11 October 1993 by the Government of the Kingdom of Denmark ("the Government"), within the three-month period laid down by Article 32 para. 1 and Article 47 (art. 32-1, art. 47) of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention"). It originated in an application (no. 15890/89) against Denmark lodged with the Commission under Article 25 (art. 25) by a Danish national, Mr Jens Olaf Jersild, on 25 July 1989.
The Commission's request referred to Articles 44 and 48 (art. 44, art. 48) and to the declaration whereby Denmark recognised the compulsory jurisdiction of the Court (Article 46) (art. 46); the Government's application referred to Articles 44 and 48 (art. 44, art. 48). The object of the request and of the Government's application was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Article 10 (art. 10) of the Convention.

2. In response to the enquiry made in accordance with Rule 33 para. 3 (d) of the Rules of Court, the applicant stated that he wished to take part in the proceedings and designated the lawyers who would represent him (Rule 30).

3. The Chamber to be constituted included ex officio Mr I. Foighel, the elected judge of Danish nationality (Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the President of the Court (Rule 21 para. 3 (b)). However, on 20 September 1993 Mr Foighel withdrew from the case pursuant to Rule 24 para. 2. On 24 September 1993, in the presence of the Registrar, the President drew by lot the names of the other seven members, namely Mr R. Macdonald, Mrs E. Palm, Mr R. Pekkanen, Mr M.A. Lopes Rocha, Mr G. Mifsud Bonnici, Mr J. Makarczyk and Mr D. Gotchev (Article 43 in fine of the Convention and Rule 21 para. 4) (art. 43). By letter of 29 October the Agent of the Government notified the Registrar of the appointment of Mr K. Waaben as an ad hoc judge; in a letter of 16 November the Agent informed the Registrar that Mr Waaben had withdrawn and that they had therefore appointed Mr A. Philip to replace him (Article 43 of the Convention and Rule 23) (art. 43).

4. As President of the Chamber (Rule 21 para. 5), Mr Ryssdal, acting through the Registrar, consulted the Agent of the Government, the applicant's lawyers and the Delegate of the Commission on the organisation of the proceedings (Rules 37 para. 1 and 38). Pursuant to the order made in consequence, the Registrar received the Government's memorial on 18 February 1994 and the applicant's memorial on 20 February. In a letter of 7 March the Secretary to the Commission informed the Registrar that the Delegate did not wish to reply in writing.

5. On 23 February 1994 the President, having consulted the Chamber, had granted leave to Human Rights Watch, a New York based non-governmental human rights organisation, to submit observations on specific aspects of the case (Rule 37 para. 2). The latter's comments were filed on 23 March.
On 23 February the Chamber had authorised (Rule 41 para. 1) the applicant to show the video-recording of the television programme in issue in his case to the judges taking part in the proceedings. A showing was held shortly before the hearing on 20 April.

6. On 23 February the Chamber had also decided to relinquish jurisdiction forthwith in favour of a Grand Chamber (Rule 51). The President and the Vice-President, Mr R. Bernhardt, as well as the other members of the Chamber being ex officio members of the Grand Chamber, the names of the additional nine judges were drawn by lot by the President in the presence of the Registrar on 24 February (Rule 51 para. 2 (a) to (c)), namely Mr F. Gölcüklü, Mr C. Russo, Mr A. Spielmann, Mr N. Valticos, Mr S.K. Martens, Mr A.N. Loizou, Mr J.M. Morenilla, Mr L. Wildhaber and Mr B. Repik.

7. On various dates between 22 March and 15 April 1994 the Commission produced a number of documents and two video-cassettes, as requested by the Registrar on the President's instructions, and the applicant submitted further details on his claims under Article 50 (art. 50) of the Convention.

8. In accordance with the President's decision, the hearing took place in public in the Human Rights Building, Strasbourg, on 20 April 1994. The Court had held a preparatory meeting beforehand.

There appeared before the Court:
- for the Government: Mr T. Lehmann, Ambassador (Legal Adviser), Ministry of Foreign Affairs (Agent), Mr M.B. Elmer, Deputy Permanent Secretary (Chief Legal Adviser), Ministry of Justice, Ms J. Rechnagel (Minister Counsellor), Ministry of Justice Mr J. Lundum, Head of Section, Ministry of Justice (Advisers);
- for the Commission: Mr C.L. Rozakis (Delegate);
- for the applicant: Mr K. Boyle, Barrister, Professor of Law at the University of Essex, Mr T. Trier (advokat), Lecturer of Law at the University of Copenhagen (Counsel), Mrs L. Johannessen, lawyer (Adviser).

The Court heard addresses by Mr Rozakis, Mr Lehmann, Mr Elmer, Mr Boyle and Mr Trier, and also replies to a question put by the President.

9. Mr Jens Olaf Jersild, a Danish national, is a journalist and lives in Copenhagen. He was at the time of the events giving rise to the present case, and still is, employed by Danmarks Radio (Danish Broadcasting Corporation, which broadcasts not only radio but also television programmes), assigned to its Sunday News Magazine (Sondagsavisen). The latter is known as a serious television programme intended for a well-informed audience, dealing with a wide range of social and political issues, including xenophobia, immigration and refugees.

10. On 31 May 1985 the newspaper Information published an article describing the racist attitudes of members of a group of young people, calling themselves "the Greenjackets" ("gronjakkerne"), at Osterbro in Copenhagen. In the light of this article, the editors of the Sunday News Magazine decided to produce a documentary on the Greenjackets. Subsequently the applicant contacted representatives of the group, inviting three of them together with Mr Per Axholt, a social worker employed at the local youth centre, to take part in a television interview. During the interview, which was conducted by the applicant, the three Greenjackets made abusive and derogatory remarks about immigrants and ethnic groups in Denmark. It lasted between five and six hours, of which between two and two and a half hours were video-recorded. Danmarks Radio paid the interviewees fees in accordance with its usual practice.

11. The applicant subsequently edited and cut the film of the interview down to a few minutes. On 21 July 1985 this was broadcast by Danmarks Radio as a part of the Sunday News Magazine. The programme consisted of a variety of items, for instance on the martial law in South Africa, on the debate on profit-sharing in Denmark and on the late German writer Heinrich Böll. The transcript of the Greenjackets item reads as follows [(I): TV presenter; (A): the applicant; (G): one or other of the Greenjackets]:

12. Following the programme no complaints were made to the Radio Council, which had competence in such matters, or to Danmarks Radio but the Bishop of complained to the Minister of Justice. After undertaking investigations the Public Prosecutor instituted criminal proceedings in the City Court of Copenhagen (Kobenhavns Byret) against the three youths interviewed by the applicant, charging them with a violation of Article 266 (b) of the Penal Code (straffeloven) (see paragraph 19 below) for having made the statements cited below:

The applicant was charged, under Article 266 (b) in conjunction with Article 23 (see paragraph 19 below), with aiding and abetting the three youths; the same charge was brought against the head of the news section of Danmarks Radio, Mr Lasse Jensen.

13. In the City Court counsel for the applicant and Mr Jensen called for their acquittal. He argued that the conduct of the applicant and Mr Jensen could in no way be compared to that of the other three defendants, with whose views they did not sympathise. They sought merely to provide a realistic picture of a social problem; in fact the programme only provoked resentment and aroused pity in respect of the three other defendants, who had exposed themselves to ridicule on their own terms. Accordingly, it was by no means the intention of Danmarks Radio to persuade others to subscribe to the same views as the Greenjackets, rather the contrary. Under the relevant law a distinction had to be drawn between the persons who made the statements and the programme editors, the latter enjoying a special freedom of expression. Having at that time a broadcasting monopoly, Danmarks Radio was under a duty to impart all opinions of public interest in a manner that reflected the speaker's way of expressing himself. The public also had an interest in being informed of notoriously bad social attitudes, even those which were unpleasant. The programme was broadcast in the context of a public debate which had resulted in press comments, for instance in Information, and was simply an honest report on the realities of the youths in question. Counsel, referring inter alia to the above-mentioned article in Information, also pointed to the fact that no consistent prosecution policy had been followed in cases of this nature.

14. On 24 April 1987 the City Court convicted the three youths, one of them for having stated that "niggers" and "foreign workers" were "animals", and two of them for their assertions in relation to drugs and "Perkere". The applicant was convicted of aiding and abetting them, as was Mr Jensen, in his capacity as programme controller; they were sentenced to pay day-fines (dagsboder) totalling 1,000 and 2,000 Danish kroner, respectively, or alternatively to five days' imprisonment (häfte).
As regards the applicant, the City Court found that, following the article in Information of 31 May 1985, he had visited the Greenjackets and after a conversation with Mr Axholt, amongst others, agreed that the three youths should participate in a television programme. The object of the programme had been to demonstrate the attitude of the Greenjackets to the racism at Osterbro, previously mentioned in the article in Information, and to show their social background. Accordingly, so the City Court held, the applicant had himself taken the initiative of making the television programme and, further, he had been well aware in advance that discriminatory statements of a racist nature were likely to be made during the interview. The interview had lasted several hours, during which beer, partly paid for by Danmarks Radio, was consumed. In this connection the applicant had encouraged the Greenjackets to express their racist views, which, in so far as they were broadcast on television, in itself constituted a breach of Article 266 (b) of the Penal Code. The statements were broadcast without any counterbalancing comments, after the recordings had been edited by the applicant. He was accordingly guilty of aiding and abetting the violation of Article 266 (b) the Penal Code. The statements were broadcast without any counterbalancing comments, after the recordings had been edited by the applicant. He was accordingly guilty of aiding and abetting the violation of Article 266 (b).

15. The applicant and Mr Jensen, but not the three Greenjackets, appealed against the City Court's judgment to the High Court of Eastern Denmark (Ostre Landsret). They essentially reiterated the submissions made before the City Court and, in addition, the applicant explained that, although he had suspected that the Greenjackets' statements were punishable, he had refrained from omitting these from the programme, considering it crucial to show their actual attitude. He assumed that they were aware that they might incur criminal liability by making the statements and had therefore not warned them of this fact.

16. By judgment of 16 June 1988 the High Court, by five votes to one, dismissed the appeal.
The dissenting member was of the view that, although the statements by the Greenjackets constituted offences under Article 266 (b) of the Penal Code, the applicant and Mr Jensen had not transgressed the bounds of the freedom of speech to be enjoyed by television and other media, since the object of the programme was to inform about and animate public discussion on the particular racist attitudes and social background of the youth group in question.

17. With leave the applicant and Mr Jensen appealed from the High Court judgment to the Supreme Court (Hojesteret), which by four votes to one dismissed the appeal in a judgment of 13 February 1989. The majority held:

Justice Pontoppidan stated in his dissent:

18. When the Supreme Court has rendered judgment in a case raising important issues of principle it is customary that a member of the majority publishes a detailed and authoritative statement of the reasons for the judgment. In keeping with this custom, Justice Hermann on 20 January 1990 published such a statement in the Weekly Law Journal (Ugeskrift for Retsväsen, 1989, p. 399).
As regards the conviction of the applicant and Mr Jensen, the majority had attached importance to the fact that they had caused the racist statements to be made public. The applicant's item had not been a direct report on a meeting. He had himself contacted the three youths and caused them to make assertions such as those previously made in Information, which he knew of and probably expected them to repeat. He had himself cut the recording of the interview, lasting several hours, down to a few minutes containing the crude comments. The statements, which would hardly have been punishable under Article 266 (b) of the Penal Code had they not been made to a wide circle ("videre kreds") of people, became clearly punishable as they were broadcast on television on the applicant's initiative and with Mr Jensen's approval. It was therefore beyond doubt that they had aided and abetted the dissemination of the statements.
Acquitting the applicant and Mr Jensen could only be justified by reasons clearly outweighing the wrongfulness of their actions. In this connection, the interest in protecting those grossly insulted by the statements had to be weighed up against that of informing the public of the statements. Whilst it is desirable to allow the press the best possible conditions for reporting on society, press freedom cannot be unlimited since freedom of expression is coupled with responsibilities.
In striking a balance between the various interests involved, the majority had regard to the fact that the statements, which were brought to a wide circle of people, consisted of series of inarticulate, defamatory remarks and insults spoken by members of an insignificant group whose opinions could hardly be of interest to many people. Their news or information value was not such as to justify their dissemination and therefore did not warrant acquitting the defendants. This did not mean that extremist views could not be reported in the press, but such reports must be carried out in a more balanced and comprehensive manner than was the case in the television programme in question. Direct reports from meetings which were a matter of public interest should also be permitted. The minority, on the other hand, considered that the right to information overrode the interests protected by Article 266 (b) of the Penal Code. Finally, Justice Hermann noted that the compatibility of the impugned measures with Article 10 (art. 10) of the Convention was not raised during the trial.

19. At the relevant time Article 266 (b) of the Penal Code provided:

Article 23, paragraph 1, reads:

20. The 1991 Media Liability Act (Medieansvarsloven, 1991:348), which entered into force on 1 January 1992, that is after the events giving rise to the present case, lays down rules inter alia on criminal liability in respect of television broadcasts. Section 18 provides:

Pursuant to section 22:

21. Provisions relating to the prohibition of racial discrimination and the prevention of propaganda of racist views and ideas are to be found in a number of international instruments, for example the 1945 United Nations Charter (paragraph 2 of the Preamble, Articles 1 para. 3, 13 para. 1 (b), 55 (c) and 76 (c)), the 1948 Universal Declaration of Human Rights (Articles 1, 2 and 7) and the 1966 International Covenant on Civil and Political Rights (Articles 2 para. 1, 20 para. 2 and 26). The most directly relevant treaty is the 1965 International Convention on the Elimination of All Forms of Racial Discrimination ("the UN Convention"), which has been ratified by a large majority of the Contracting States to the European Convention, including Denmark (9 December 1971). Articles 4 and 5 of that Convention provide:

The effects of the "due regard" clause in Article 4 has given rise to differing interpretations and the UN Committee on the Elimination of Racial Discrimination ("the UN Committee" - set up to supervise the implementation of the UN Convention) was divided in its comments on the applicant's conviction. The present case had been presented by the Danish Government in a report to the UN Committee. Whilst some members welcomed it as "the clearest statement yet, in any country, that the right to protection against racial discrimination took precedence over the right to freedom of expression", other members considered that "in such cases the facts needed to be considered in relation to both rights" (Report of the Committee to the General Assembly, Official Records, Forty-Fifth Session, Supplement No. 18 (A/45/18), p. 21, para. 56).

22. In his application (no. 15890/89) of 25 July 1989 to the Commission the applicant complained that his conviction violated his right to freedom of expression under Article 10 (art. 10) of the Convention.

23. On 8 September 1992 the Commission declared the application admissible. In its report of 8 July 1993 (Article 31) (art. 31), the Commission expressed the opinion that there had been a violation of Article 10 (art. 10) (by twelve votes to four).

The full text of the Commission's opinion and of the two dissenting opinions contained in the report is reproduced as an annex to this judgment < Note by the Registrar. For practical reasons this annex will appear only with the printed version of the judgment (volume 298 of Series A of the Publications of the Court), but a copy of the Commission's report is obtainable from the registry >.

24. At the hearing on 20 April 1994 the Government invited the Court to hold that, as submitted in their memorial, there had been no violation of Article 10 (art. 10) of the Convention.

25. The applicant maintained that his conviction and sentence for having aided and abetted the dissemination of racist remarks violated his right to freedom of expression within the meaning of Article 10 (art. 10) of the Convention, which reads:

26. The Government contested this contention whereas the Commission upheld it.

27. It is common ground that the measures giving rise to the applicant's case constituted an interference with his right to freedom of expression.

It is moreover undisputed that this interference was "prescribed by law", the applicant's conviction being based on Articles 266 (b) and 23 (1) of the Penal Code. In this context, the Government pointed out that the former provision had been enacted in order to comply with the UN Convention. The Government's argument, as the Court understands it, is that, whilst Article 10 (art. 10) of the Convention is applicable, the Court, in applying paragraph 2 (art. 10-2), should consider that the relevant provisions of the Penal Code are to be interpreted and applied in an extensive manner, in accordance with the rationale of the UN Convention (see paragraph 21 above). In other words, Article 10 (art. 10) should not be interpreted in such a way as to limit, derogate from or destroy the right to protection against racial discrimination under the UN Convention.

Finally it is uncontested that the interference pursued a legitimate aim, namely the "protection of the reputation or rights of others".

The only point in dispute is whether the measures were "necessary in a democratic society".

28. The applicant and the Commission were of the view that, notwithstanding Denmark's obligations as a Party to the UN Convention (see paragraph 21 above), a fair balance had to be struck between the "protection of the reputation or rights of others" and the applicant's right to impart information. According to the applicant, such a balance was envisaged in a clause contained in Article 4 of the UN Convention to the effect that "due regard" should be had to "the principles in the Universal Declaration of Human Rights and the rights ... in Article 5 of [the UN] Convention". The clause had been introduced at the drafting stage because of concern among a number of States that the requirement in Article 4 (a) that "[States Parties] shall declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred" was too sweeping and could give rise to difficulties with regard to other human rights, in particular the right to freedom of opinion and expression. In the applicant's further submission, this explained why the Committee of Ministers of the Council of Europe, when urging member States to ratify the UN Convention, had proposed that they add an interpretative statement to their instrument of ratification, which would, inter alia, stress that respect was also due for the rights laid down in the European Convention (Resolution (68) 30 adopted by the Ministers' Deputies on 31 October 1968).
The applicant and the Commission emphasised that, taken in the context of the broadcast as a whole, the offending remarks had the effect of ridiculing their authors rather than promoting their racist views. The overall impression of the programme was that it sought to draw public attention to a matter of great public concern, namely racism and xenophobia. The applicant had deliberately included the offensive statements in the programme, not with the intention of disseminating racist opinions, but in order to counter them through exposure. The applicant pointed out that he tried to show, analyse and explain to his viewers a new phenomenon in Denmark at the time, that of violent racism practised by inarticulate and socially disadvantaged youths. Joined by the Commission, he considered that the broadcast could not have had any significant detrimental effects on the "reputation or rights of others". The interests in protecting the latter were therefore outweighed by those of protecting the applicant's freedom of expression.
In addition the applicant alleged that had the 1991 Media Liability Act been in force at the relevant time he would not have faced prosecution since under the Act it is in principle only the author of a punishable statement who may be liable. This undermined the Government's argument that his conviction was required by the UN Convention and "necessary" within the meaning of Article 10 (art. 10).

29. The Government contended that the applicant had edited the Greenjackets item in a sensationalist rather than informative manner and that its news or information value was minimal. Television was a powerful medium and a majority of Danes normally viewed the news programme in which the item was broadcast. Yet the applicant, knowing that they would incur criminal liability, had encouraged the Greenjackets to make racist statements and had failed to counter these statements in the programme. It was too subtle to assume that viewers would not take the remarks at their face value. No weight could be attached to the fact that the programme had given rise to only a few complaints, since, due to lack of information and insufficient knowledge of the Danish language and even fear of reprisals by violent racists, victims of the insulting comments were likely to be dissuaded from complaining. The applicant had thus failed to fulfil the "duties and responsibilities" incumbent on him as a television journalist. The fine imposed upon him was at the lower end of the scale of sanctions applicable to Article 266 (b) offences and was therefore not likely to deter any journalist from contributing to public discussion on racism and xenophobia; it only had the effect of a public reminder that racist expressions are to be taken seriously and cannot be tolerated.
The Government moreover disputed that the matter would have been dealt with differently had the 1991 Media Liability Act been in force at the material time. The rule that only the author of a punishable statement may incur liability was subject to exceptions (see paragraph 20 above); how the applicant's case would have been considered under the 1991 Act was purely a matter of speculation.
The Government stressed that at all three levels the Danish courts, which were in principle better placed than the European Court to evaluate the effects of the programme, had carried out a careful balancing exercise of all the interests involved. The review effected by those courts had been similar to that carried out under Article 10 (art. 10); their decisions fell within the margin of appreciation to be left to the national authorities and corresponded to a pressing social need.

30. The Court would emphasise at the outset that it is particularly conscious of the vital importance of combating racial discrimination in all its forms and manifestations. It may be true, as has been suggested by the applicant, that as a result of recent events the awareness of the dangers of racial discrimination is sharper today than it was a decade ago, at the material time. Nevertheless, the issue was already then of general importance, as is illustrated for instance by the fact that the UN Convention dates from 1965. Consequently, the object and purpose pursued by the UN Convention are of great weight in determining whether the applicant's conviction, which - as the Government have stressed - was based on a provision enacted in order to ensure Denmark's compliance with the UN Convention, was "necessary" within the meaning of Article 10 para. 2 (art. 10-2).
In the second place, Denmark's obligations under Article 10 (art. 10) must be interpreted, to the extent possible, so as to be reconcilable with its obligations under the UN Convention. In this respect it is not for the Court to interpret the "due regard" clause in Article 4 of the UN Convention, which is open to various constructions. The Court is however of the opinion that its interpretation of Article 10 (art. 10) of the European Convention in the present case is compatible with Denmark's obligations under the UN Convention.

31. A significant feature of the present case is that the applicant did not make the objectionable statements himself but assisted in their dissemination in his capacity of television journalist responsible for a news programme of Danmarks Radio (see paragraphs 9 to 11 above). In assessing whether his conviction and sentence were "necessary", the Court will therefore have regard to the principles established in its case-law relating to the role of the press (as summarised in for instance the Observer and Guardian v. the United Kingdom judgment of 26 November 1991, Series A no. 216, pp. 29-30, para. 59).
The Court reiterates that freedom of expression constitutes one of the essential foundations of a democratic society and that the safeguards to be afforded to the press are of particular importance (ibid.). Whilst the press must not overstep the bounds set, inter alia, in the interest of "the protection of the reputation or rights of others", it is nevertheless incumbent on it to impart information and ideas of public interest. Not only does the press have the task of imparting such information and ideas: the public also has a right to receive them. Were it otherwise, the press would be unable to play its vital role of "public watchdog" (ibid.). Although formulated primarily with regard to the print media, these principles doubtless apply also to the audiovisual media.
In considering the "duties and responsibilities" of a journalist, the potential impact of the medium concerned is an important factor and it is commonly acknowledged that the audiovisual media have often a much more immediate and powerful effect than the print media (see Purcell and Others v. Ireland, Commission's admissibility decision of 16 April 1991, application no. 15404/89, Decisions and Reports (DR) 70, p. 262). The audiovisual media have means of conveying through images meanings which the print media are not able to impart.
At the same time, the methods of objective and balanced reporting may vary considerably, depending among other things on the media in question. It is not for this Court, nor for the national courts for that matter, to substitute their own views for those of the press as to what technique of reporting should be adopted by journalists. In this context the Court recalls that Article 10 (art. 10) protects not only the substance of the ideas and information expressed, but also the form in which they are conveyed (see the Oberschlick v. Austria judgment of 23 May 1991, Series A no. 204, p. 25, para. 57).
The Court will look at the interference complained of in the light of the case as a whole and determine whether the reasons adduced by the national authorities to justify it are relevant and sufficient and whether the means employed were proportionate to the legitimate aim pursued (see the above-mentioned Observer and Guardian judgment, pp. 29-30, para. 59). In doing so the Court has to satisfy itself that the national authorities did apply standards which were in conformity with the principles embodied in Article 10 (art. 10) and, moreover, that they based themselves on an acceptable assessment of the relevant facts (see, for instance, the Schwabe v. Austria judgment of 28 August 1992, Series A no. 242-B, pp. 32-33, para. 29).
The Court's assessment will have regard to the manner in which the Greenjackets feature was prepared, its contents, the context in which it was broadcast and the purpose of the programme. Bearing in mind the obligations on States under the UN Convention and other international instruments to take effective measures to eliminate all forms of racial discrimination and to prevent and combat racist doctrines and practices (see paragraph 21 above), an important factor in the Court's evaluation will be whether the item in question, when considered as a whole, appeared from an objective point of view to have had as its purpose the propagation of racist views and ideas.

32. The national courts laid considerable emphasis on the fact that the applicant had himself taken the initiative of preparing the Greenjackets feature and that he not only knew in advance that racist statements were likely to be made during the interview but also had encouraged such statements. He had edited the programme in such a way as to include the offensive assertions. Without his involvement, the remarks would not have been disseminated to a wide circle of people and would thus not have been punishable (see paragraphs 14 and 18 above).
The Court is satisfied that these were relevant reasons for the purposes of paragraph 2 of Article 10 (art. 10-2).

33. On the other hand, as to the contents of the Greenjackets item, it should be noted that the TV presenter's introduction started by a reference to recent public discussion and press comments on racism in Denmark, thus inviting the viewer to see the programme in that context. He went on to announce that the object of the programme was to address aspects of the problem, by identifying certain racist individuals and by portraying their mentality and social background. There is no reason to doubt that the ensuing interviews fulfilled that aim. Taken as a whole, the feature could not objectively have appeared to have as its purpose the propagation of racist views and ideas. On the contrary, it clearly sought - by means of an interview - to expose, analyse and explain this particular group of youths, limited and frustrated by their social situation, with criminal records and violent attitudes, thus dealing with specific aspects of a matter that already then was of great public concern.
The Supreme Court held that the news or information value of the feature was not such as to justify the dissemination of the offensive remarks (see paragraph 18 above). However, in view of the principles stated in paragraph 31 above, the Court sees no cause to question the Sunday News Magazine staff members' own appreciation of the news or information value of the impugned item, which formed the basis for their decisions to produce and broadcast it.

34. Furthermore, it must be borne in mind that the item was broadcast as part of a serious Danish news programme and was intended for a well-informed audience (see paragraph 9 above).
The Court is not convinced by the argument, also stressed by the national courts (see paragraphs 14 and 18 above), that the Greenjackets item was presented without any attempt to counterbalance the extremist views expressed. Both the TV presenter's introduction and the applicant's conduct during the interviews clearly dissociated him from the persons interviewed, for example by describing them as members of "a group of extremist youths" who supported the Ku Klux Klan and by referring to the criminal records of some of them. The applicant also rebutted some of the racist statements for instance by recalling that there were black people who had important jobs. It should finally not be forgotten that, taken as a whole, the filmed portrait surely conveyed the meaning that the racist statements were part of a generally anti-social attitude of the Greenjackets.
Admittedly, the item did not explicitly recall the immorality, dangers and unlawfulness of the promotion of racial hatred and of ideas of superiority of one race. However, in view of the above-mentioned counterbalancing elements and the natural limitations on spelling out such elements in a short item within a longer programme as well as the journalist's discretion as to the form of expression used, the Court does not consider the absence of such precautionary reminders to be relevant.

35. News reporting based on interviews, whether edited or not, constitutes one of the most important means whereby the press is able to play its vital role of "public watchdog" (see, for instance, the above-mentioned Observer and Guardian judgment, pp. 29-30, para. 59). The punishment of a journalist for assisting in the dissemination of statements made by another person in an interview would seriously hamper the contribution of the press to discussion of matters of public interest and should not be envisaged unless there are particularly strong reasons for doing so. In this regard the Court does not accept the Government's argument that the limited nature of the fine is relevant; what matters is that the journalist was convicted.
There can be no doubt that the remarks in respect of which the Greenjackets were convicted (see paragraph 14 above) were more than insulting to members of the targeted groups and did not enjoy the protection of Article 10 (art. 10) (see, for instance, the Commission's admissibility decisions in Glimmerveen and Hagenbeek v. the Netherlands, applications nos. 8348/78 and 8406/78, DR 18, p. 187; and Künen v. Germany, application no. 12194/86, DR 56, p. 205). However, even having regard to the manner in which the applicant prepared the Greenjackets item (see paragraph 32 above), it has not been shown that, considered as a whole, the feature was such as to justify also his conviction of, and punishment for, a criminal offence under the Penal Code.

36. It is moreover undisputed that the purpose of the applicant in compiling the broadcast in question was not racist. Although he relied on this in the domestic proceedings, it does not appear from the reasoning in the relevant judgments that they took such a factor into account (see paragraphs 14, 17 and 18 above).

37. Having regard to the foregoing, the reasons adduced in support of the applicant's conviction and sentence were not sufficient to establish convincingly that the interference thereby occasioned with the enjoyment of his right to freedom of expression was "necessary in a democratic society"; in particular the means employed were disproportionate to the aim of protecting "the reputation or rights of others". Accordingly the measures gave rise to a breach of Article 10 (art. 10) of the Convention.

38. Mr Jersild sought just satisfaction under Article 50 (art. 50) of the Convention, according to which:

39. The Government accepted parts of his claim. The Commission offered no comments.

40. The applicant claimed 1,000 kroner in respect of the fine imposed upon him, to be reimbursed by him to Danmarks Radio which had provisionally paid the fine for him.

41. The Government did not object and the Court finds that the amount should be awarded.

42. The applicant requested 20,000 kroner in compensation for non-pecuniary damage. He maintained that his professional reputation had been prejudiced and that he had felt distress as a result of his conviction.

43. The Court observes that the applicant still works with the Sunday News Magazine at Danmarks Radio and that his employer has supported him throughout the proceedings, inter alia by paying the fine (see paragraphs 9 and 40 above) and legal fees (see paragraph 44 below). It agrees with the Government that the finding of a violation of Article 10 (art. 10) constitutes in itself adequate just satisfaction in this respect.

44. The applicant claimed in respect of costs and expenses:
(a) 45,000 kroner for work done in the domestic proceedings by his lawyer, Mr J. Stockholm;
(b) by way of legal fees incurred in the Strasbourg proceedings, 13, 126. 80 kroner for Mrs Johannessen, 6, 900 pounds sterling for Mr Boyle and 50,000 kroner (exclusive 25% value-added tax) for Mr Trier;
(c) 20, 169. 20 kroner to cover costs of translation, interpretation and an expert opinion;
(d) 25,080 kroner, 965. 40 pounds and 4,075 French francs in travel and subsistence expenses incurred in connection with the hearings before the Commission and Court, as well as miscellaneous expenses.
Parts of the above costs and expenses had been provisionally disbursed by Danmarks Radio.

45. The Government did not object to the above claims. The Court considers that the applicant is entitled to recover the sums in their entirety. They should be increased by any value-added taxes that may be chargeable.

For these reasons, the court:

Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 23 September 1994.

In accordance with Article 51 para. 2 (art. 51-2) of the Convention and Rule 53 para. 2 of the Rules of Court, the following separate opinions are annexed to this judgment:

(a) joint dissenting opinion of Mr Ryssdal, Mr Bernhardt, Mr Spielmann and Mr Loizou;
(b) joint dissenting opinion of Mr Gölcüklü, Mr Russo and Mr Valticos;
(c) supplementary joint dissenting opinion of Mr Gölcüklü and Mr Valticos.

1. This is the first time that the Court has been concerned with a case of dissemination of racist remarks which deny to a large group of persons the quality of "human beings". In earlier decisions the Court has - in our view, rightly - underlined the great importance of the freedom of the press and the media in general for a democratic society, but it has never had to consider a situation in which "the reputation or rights of others" (Article 10 para. 2) (art. 10-2) were endangered to such an extent as here.

2. We agree with the majority (paragraph 35 of the judgment) that the Greenjackets themselves "did not enjoy the protection of Article 10 (art. 10)". The same must be true of journalists who disseminate such remarks with supporting comments or with their approval. This can clearly not be said of the applicant. Therefore it is admittedly difficult to strike the right balance between the freedom of the press and the protection of others. But the majority attributes much more weight to the freedom of the journalist than to the protection of those who have to suffer from racist hatred.

3. Neither the written text of the interview (paragraph 11 of the judgment) nor the video film we have seen makes it clear that the remarks of the Greenjackets are intolerable in a society based on respect for human rights. The applicant has cut the entire interview down to a few minutes, probably with the consequence or even the intention of retaining the most crude remarks. That being so, it was absolutely necessary to add at least a clear statement of disapproval. The majority of the Court sees such disapproval in the context of the interview, but this is an interpretation of cryptic remarks. Nobody can exclude that certain parts of the public found in the television spot support for their racist prejudices.
And what must be the feelings of those whose human dignity has been attacked, or even denied, by the Greenjackets? Can they get the impression that seen in context the television broadcast contributes to their protection? A journalist's good intentions are not enough in such a situation, especially in a case in which he has himself provoked the racist statements.

4. The International Convention on the Elimination of All Forms of Racial Discrimination probably does not require the punishment of journalists responsible for a television spot of this kind. On the other hand, it supports the opinion that the media too can be obliged to take a clear stand in the area of racial discrimination and hatred.

5. The threat of racial discrimination and persecution is certainly serious in our society, and the Court has rightly emphasised the vital importance of combating racial discrimination in all its forms and manifestations (paragraph 30 of the judgment). The Danish courts fully recognised that protection of persons whose human dignity is attacked has to be balanced against the right to freedom of expression. They carefully considered the responsibility of the applicant, and the reasons for their conclusions were relevant. The protection of racial minorities cannot have less weight than the right to impart information, and in the concrete circumstances of the present case it is in our opinion not for this Court to substitute its own balancing of the conflicting interests for that of the Danish Supreme Court. We are convinced that the Danish courts acted inside the margin of appreciation which must be left to the Contracting States in this sensitive area. Accordingly, the findings of the Danish courts cannot be considered as giving rise to a violation of Article 10 (art. 10) of the Convention.

(Translation)

We cannot share the opinion of the majority of the Court in the Jersild case.
There are indeed two major principles at issue in this case, one being that of freedom of expression, embodied in Article 10 (art. 10) of the Convention, the other the prohibition on defending racial hatred, which is obviously one of the restrictions authorised by paragraph 2 of Article 10 (art. 10-2) and, moreover, is the subject of basic human rights documents adopted by the General Assembly of the United Nations, in particular the 1965 Convention on the Elimination of All Forms of Racial Discrimination. That Convention manifestly cannot be ignored when the European Convention is being implemented. It is, moreover, binding on Denmark. It must also guide the European Court of Human Rights in its decisions, in particular as regards the scope it confers on the terms of the European Convention and on the exceptions which the Convention lays down in general terms.
In the Jersild case the statements made and willingly reproduced in the relevant broadcast on Danish television, without any significant reaction on the part of the commentator, did indeed amount to incitement to contempt not only of foreigners in general but more particularly of black people, described as belonging to an inferior, subhuman race ("the niggers ... are not human beings ... Just take a picture of a gorilla ... and then look at a nigger, it's the same body structure ... A nigger is not a human being, it's an animal, that goes for all the other foreign workers as well, Turks, Yugoslavs and whatever they are called.").
While appreciating that some judges attach particular importance to freedom of expression, the more so as their countries have largely been deprived of it in quite recent times, we cannot accept that this freedom should extend to encouraging racial hatred, contempt for races other than the one to which we belong, and defending violence against those who belong to the races in question. It has been sought to defend the broadcast on the ground that it would provoke a healthy reaction of rejection among the viewers. That is to display an optimism, which to say the least, is belied by experience. Large numbers of young people today, and even of the population at large, finding themselves overwhelmed by the difficulties of life, unemployment and poverty, are only too willing to seek scapegoats who are held up to them without any real word of caution; for - and this is an important point - the journalist responsible for the broadcast in question made no real attempt to challenge the points of view he was presenting, which was necessary if their impact was to be counterbalanced, at least for the viewers.
That being so, we consider that by taking criminal measures - which were, moreover, moderate ones - the Danish judicial institutions in no way infringed Article 10 (art. 10) of the Convention.

(Translation)

We have voted against point 2 of the operative provisions of the judgment because we are so firmly convinced that the applicant was wrong not to react against the defence of racism that we consider it wholly unjustified to award him any compensation whatever.