S3503569

Vlaicu Motrescu
Working Group 2.2
Legal skills, week 4

Jersild V Denmark

1. Jens Olaf Jersild, a reporter for the Danish national broadcasting service (c9), conducted
an interview with a group of 3 young people part of the racist group Greenjackets, where
they expressed their racist views to a large audience (c10). In the interview proper, they
expressed racist views towards immigrants (c11).
2. Because he broadcasted, requested and edited the interview, Jersild was charged with the
offence of aiding and abetting the dissemination of racist statements to a large audience,
under Article 266 (b) in conjunction with Article 23 of the Dutch Penal Code (c12). In
court, Jersild’s defense was that he only broadcasted information that was relevant to the
public, so that the public could make their own decision, and wanted to present the truth
about a pressing social matter, and that his freedom of speech, by the Danish government
(c13). Jersild was found guilty and convicted in the first instance (c14), and in the High
Court of Eastern Denmark dismissed his appeal (c16), as did the Supreme Court of
Denmark (c17) on the grounds that the freedom of speech and of the press could be
restricted in the interest of protection against discrimination, and in the interest of the
public good (c18).
3. Main question of law: Was Jersild’s restriction of freedom of speech, as stated in art. 10
of the ECHR, by the Danish Government, justified? (c25)
a. Did the restriction of speech have a legal basis? (c27)
b. Was the restriction of speech justified by being necessary in a democratic society?
(c28)
4. The exercise of the right(s) protected by article 10 ECHR can be interfered with,
according to the European Court of Human Rights, in the interests of national security,
territorial integrity or public safety, for the prevention of disorder or crime, for the
protection of health or morals, for the protection of the reputation or rights of others, for
preventing the disclosure of information received in confidence, or for maintaining the
authority and impartiality of the judiciary (c25).
5. The Court said that there was a restriction of the freedom of speech, indeed, and that it
had a legal basis in art. 266 (b) of the Dutch Penal Code (c28). However, the Courst did
not find a basis for the justification the restriction as necessary in a democratic society -
the offending remarks had the effect of ridiculing their authors rather than promoting
their racist views. The programme sought to draw public attention to a matter of great
public concern, namely racism and xenophobia. Jersild intended to bring the problem in
the public spotlight, rather than endorse the views of the 3 young people. The
Commission agreed that the broadcast could not have had any significant detrimental
effects on the "reputation or rights of others" either. The interests in protecting the latter
were therefore outweighed by those of protecting the Jersild’s freedom of expression
(c28).
6. The dissenting judges believe that from the 2 principles at odds in this case, freedom of
expression and protection against racial discrimination, the second one wins. In their
view, Jersild had the responsibility to the viewers to counterbalance the effect of the
statements of the Greenjackets by challenging them and reacting negatively towards what
they were saying, in order to prove their statements untrue and do a service to the public
good.
 Dutch East Indies combatant case

1a. Components of the offence:

1. Any insult
2. which is not of a slanderous
3. or libelous nature
4. intentionally expressed
5. either in public verbally
6. or in writing
7. or by means of an image,
8. or verbally against a person in his presence
9. or by other acts,
10. or by means of written manner
11. or an image sent
12. or offered,
13. shall constitute simple defamation
14. and shall be punishable by a term of imprisonment not exceeding three months
15. or a fine of the second category.

1b. In order to fall under the exemption of art. 266(2) of the Dutch Penal Code, the act that could
be labeled as defamation needs to be intended as to express an opinion about the protection of
public interests and must not be designed to cause any more offence in any other way than
follow from that intent.

2a. Article 10 ECHR contains the right to freedom of expression

2b. The right to freedom of expression can be restricted in the interests of national security,
territorial integrity or public safety, for the prevention of disorder or crime, for the protection of
health or morals, for the protection of the reputation or rights of others, for preventing the
disclosure of information received in confidence, or for maintaining the authority and
impartiality of the judiciary.

3. Art. 266 Dutch Penal Code and art. 10 ECHR relate to each other because art. 10(2) ECHR
states the justifications for the restricting of the freedom of expression, and art. 266(1) Dutch
Penal Code provides the legal basis for one such case, namely the restriction of the freedom of
expression for the protection of the reputation or rights of others.

4. The Court considers that freedom of expression constitutes one of the essential foundations of
a democratic society, especially the freedom of the press. They consider that the press has the
task of imparting information and ideas to the public. The freedom of the press is essential in
maintaining the role of the press as a public watchdog.

5. A restriction of the right in art. 10 ECHR is ‘necessary in a democratic society’ according to

the European Court of Human Rights when protecting the rights of others, and also when a
certain journalist (or person in general) is spreading, aiding in the spreading of or disseminating
racist messages, ideas and propaganda.

6. The main difference in the facts is that in the Jersild v. Denmark case, the restriction of the
freedom of speech was justified by the necessity to stop and prevent racist messages, ideas and
propaganda, while in the Dutch East Indies Combatant case the restriction of the freedom of
speech is based on simple defamation.

7.
I. The writer G. Boomsma, in an interview with the journalist Tangma stated, about the
behaviour of the Dutch soldiers in the police actions in the former Dutch East Indies, that it was
similar tothe behaviour of the SS during the period of 1940 – 1945. Tangma asked Boomsma if
he believed that 'these beasts' should be criminally charged. Boomsma answered that he had no
opinion, but believed it to be right that these acts are now discussed in public as part of the
debate on the Dutch performance in the former Dutch East Indies. After a complaint of a former
Dutch East Indies combatant, the public prosecutor instituted criminal proceedings against
Tangma on the basis of art. 266(1) Dutch Penal Code.

II. The question of law that has to be answered is: Does the journalist Tangma have to be
imprisoned or to pay a fine for the defamation of the Dutch East Indies combatants, on basis of
article 266(1) Dutch Penal Code?

III. The problem that has to be examined is if the act of the journalist Tangma, namely
associating the Dutch East Indies combatants to beasts for their actions, can be excused under
art. 266(2) Dutch Penal Code. Therefore, there are 2 conditions that must be fulfilled: the opinion
expressed must be about the protection of public interest, and the opinion must not cause more
offence then what followed from that intent.

IV. As there is no doubt that the act of naming the Dutch East Indies combatants “beasts” is a
form of an insult, therefore a defamation on the basis of art. 266(1) Dutch Penal Code, the
question that has to be answered is whether this can be excused as per art. 266(2) Dutch Penal
Code. The remark indeed was an opinion of the journalist on the protection of public interest, as
it pertained to the crimes that representatives of the Dutch state did in its’ former colonies. The
second condition that has to be fulfilled, though, is for the remark not to intend to cause
additional offense. It is my belief that the journalist had no reason to use a term as violent as
“beasts”. While that may be true, it also may be not. Mr. Tangma, being a journalist, has a high
degree of responsibility towards society, an therefore can not take for granted every allegation he
hears, Even if the interviewed person, the writer, had proof, Mr. Tangma should have verified
with other sources the truth of the allegation brought by the writer. Without confirmation, using
the term “beast”, which is obviously one intended to cause harm to the reputation of the
combatants, is simply an irresponsible thing to do, making Mr. Tangma one who has ignored his
responsibilities as a journalist. Moreover, the publishing of such an interview to large circles,
where such a damaging remark is made, cannot be excused under 266(2) Dutch Penal Code.

V. Mr. Tangma should be declared guilty under art. 266(1) Dutch Penal Code. It was his
responsibility as a journalist to verify the truth of the statements, especially before publishing the
article which contains very damaging remarks, both from the writer and himself, towards former
Dutch East Indies combatants. Should the question have been formed in a less biased manner, it
would have been excused under art. 266(2) Dutch Penal Code, but as Mr. Tangma takes such a
powerful stance on the matter and engages in such strong declarations without verifying the truth
with other sources or at least giving a voice to the other side, there is clear intent to damage
further then it is required by the defense of public interest. Seeing as not all the conditions that
would justify defamation under art. 266(2) Dutch Penal Code are met, Mr. Tangma is guilty of
defamation under art. 266(1) Dutch Penal Code .