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Freedom of speech in Denmark

(Redirected from Freedom of Speech and Freedom of the Press in Denmark)
See also: Censorship in Denmark

Freedom of speech and freedom of the press in Denmark are ensured by § 77 of the constitution:[1]

Anyone is entitled to in print, writing and speech to publish his or hers thoughts, yet under responsibility to the courts. Censorship and other preventive measures can never again be introduced.

There's widespread agreement in Danish legal theory that § 77 protects what is called "formal freedom of speech" (formel ytringsfrihed), meaning that one cannot be required to submit one's speech for review by authorities before publishing or otherwise disseminating it.[2] However, there is disagreement about whether or not § 77 covers "material freedom of speech" (materiel ytringsfrihed), the right to not be punished for ones speech. There is agreement that the phrasing "under responsibility to the courts" gives legislators some right to restrict speech, but conversely there have been several court decisions implying that some material freedom of speech does exist.[3] The discussion is about whether the material speech has limits or not, and if so, what those limits are.[3][4]

The major punishable acts are child pornography, libel, and hate speech/racism, which are restricted by the Danish penal code. Like most other countries, Denmark also forbids publishing classified material harmful to state security, copyright-protected material without permission and revealing trade secrets in the civil law.

In 2004, 2005, and 2009 Denmark received a joint first place in the Worldwide Press Freedom Index from Reporters Without Borders.[5] Since 2011, Denmark has consistently been in the top-10 out of 179 countries in the index and it was fourth in 2016.[6][7][8][9][10]

Child pornography

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The provision against child pornography are set down in §§ 235 and 230 of the penal code:[11][12]

  • § 235. Dissemination of obscene photographs or films, other obscene visual reproductions, or similar depictions of persons under 18.
  • § 230. Taking indecent photographs, films, etc. of a person under 18 with intent to sell or otherwise disseminate.

Libel

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The provision against libel is set down in § 267 of the penal code:

Anybody who offends another person's honor by insulting words or actions or by stating or disseminating charges, that are suitable for reducing the insulted person in the esteem of fellow citizens, will be punished by fine or ordinary imprisonment.

— § 267 of the Danish penal code

Blasphemy

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For 151 years, up until the middle of 2017, blasphemy was forbidden by § 140 of the penal code:[13]

Anybody who publicly mocks or insults the religious doctrine or worship of any religious community lawfully existing in this country will be punished by fine or imprisonment for up to 4 months

— § 140 of the Danish penal code prior to its repeal in 2017[14]

The law was rarely used by prosecutors, however. In 1997 a Danish artist burned a copy of the Bible on a TV news show broadcast by the publicly funded Danish Broadcasting Corporation. The artist was never charged for blasphemy.[15] Only two people were ever convicted under the law during its lifetime and from 2007 to 2017, only 4 complaints of violating the law were reported to law enforcement.[13][16] Bills repealing the law had been proposed multiple times, but none were successful[17] until 2017 when the first prosecution since 1971 was filed against a man for posting a video of him burning the Quran on Facebook, reigniting the debate over the law.[18][19][20] Parliament voted to repeal the law, with 8 of the 9 parties in the Folketing supporting the repeal.[21][22]

Hate speech and racism

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Main article: Hate speech laws in Denmark

The rules against hate speech and racism are set down in § 266b of the Danish penal code:

Whoever publicly, or with intention to disseminating in a larger circle makes statements or other pronouncement, by which a group of persons is threatened, derided or degraded because of their race, colour of skin, national or ethnic background, faith or sexual orientation, will be punished by fine or imprisonment for up to 2 years. Sec. 2. When meting out the punishment it shall be considered an especially aggravating circumstance, if the count has the character of propaganda.

— § 266b of the Danish penal code

Free speech advocate Lars Hedegaard was prosecuted under this statute for remarks made to a blogger in December 2009 criticizing Islam. He was first acquitted in the District Court in January 2011, then convicted upon appeal to High Court in May 2011, and finally acquitted by the Danish Supreme Court in April 2012 which ruled that it could not be proved that he intended for the statements to be published.[23] Danish politician Jesper Langballe pleaded guilty and was convicted of hate speech for comments he made about rape and honour killings in Muslim families in a newspaper article in connection with Hedegaard's case.[24]

State security

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In February and March 2004 three Berlingske Tidende journalists, Michael Bjerre, Jesper Larsen, and Niels Lunde, were prosecuted for "harming state security" after publishing the details of classified intelligence reports about the lack of weapons of mass destruction in Iraq. In December 2006 the three were acquitted by a Copenhagen court.[25]

Flag flying

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The flying of all flags (including the Danish national flag) by the general public was banned in 1833 (effectively 1834)[26] during the absolute monarchy of Denmark; this ban was later loosened in 1854[27] to allow foreign ambassadors to fly their own national flags from their residences as well as allowing anyone to fly the Danish civil flag. In 1915, following a 1914 amendment to the Danish penal code, an executive order was issued, reiterating the aforementioned ban on flying foreign flags but also providing an exception that the police could allow flying a foreign flag on occasion.[28] Several executive orders later allowed the flying of the flags of the Nordic nations, including the Faroe Islands and Greenland (the latter by an act, rather than an executive order).

On 22 June 2023, the Supreme Court of Denmark ruled that the 1915 executive order was not enforceable under Danish law, thus effectively allowing any flag to be flown; the Ministry of Justice subsequently redacted all executive orders relating to the flying of foreign flags.[29]

See also

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References

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  1. ^ "Kapitel VIII" (Part 8), Danmarks Riges Grundlov (Grundloven) (Danish Constitution) (in Danish). (English translation)
  2. ^ Zahle, Henrik, ed. (2006). Danmarks Riges Grundlov med kommentarer [Constitution of the Kingdom of Denmark with comments] (2nd ed.). Copenhagen: Jurist- og Økonomforbundets Forlag. p. 536. ISBN 8757411565. OCLC 466582184.
  3. ^ a b Zahle 2006, p. 539.
  4. ^ See Zahle 2006, pp. 539–552 for differing perspectives on the issue.
  5. ^ "Press Freedom Index 2004" Archived 2012-02-20 at the Wayback Machine, "Press Freedom Index 2005" Archived 2013-09-27 at the Wayback Machine, "Press Freedom Index 2009" Archived September 30, 2015, at the Wayback Machine, Reporters Without Borders, accessed 12 August 2012
  6. ^ "Press Freedom Index 2011-2012" Archived March 3, 2016, at the Wayback Machine, Reporters Without Borders, accessed 12 August 2012
  7. ^ "World Press Freedom Index 2013" Archived 2018-02-19 at the Wayback Machine, Reporters Without Borders
  8. ^ "World Press Freedom Index 2014" Archived 2014-02-14 at the Wayback Machine, Reporters Without Borders
  9. ^ "World Press Freedom Index 2015" Archived 2017-07-30 at the Wayback Machine, Reporters Without Borders
  10. ^ "World Press Freedom Index 2016" Archived 2017-03-14 at the Wayback Machine, Reporters Without Borders
  11. ^ "Straffeloven kapitel3 24: Forbrydelser mod kønssædeligheden" (Penal Code Chapter 24: Crimes against sexual morality) (in Danish). Synopsis. Retrieved 17 August 2012. (English translation)
  12. ^ "Om blokeringsordningen mod børneporno" (About blocking scheme against child pornography) Archived 2015-10-13 at the Wayback Machine (in Danish), Danish National Police, 16 July 2012. Retrieved 16 August 2012. (English translation)
  13. ^ a b Folketingets Retsudvalg (2016-06-07). "Betænkning over Forslag til lov om ændring af straffeloven" [Deliberation on the proposed law to amend the penal code] (in Danish).
  14. ^ Bekendtgørelse af straffeloven [Announcement of the Penal Code], 2016-07-04, retrieved 2017-07-08
  15. ^ "Something's Rotten: How Denmark Is Criminalizing Blasphemy Through Hate Speech Law". 29 February 2016. Archived from the original on 2016-03-05.
  16. ^ L 170 endeligt svar på spørgsmål 10 [L 170 final answer to question 10] (PDF), Justitsministeriet, 2017-05-22, retrieved 2017-07-08
  17. ^ "Denmark section" in Annexe II: Analysis of the Domestic Law Concerning Blasphemy, Religious Insults and Inciting Religious Hatred in Albania, Austria, Belgium, Denmark, France, Greece, Ireland, the Netherlands, Poland, Romania, Turkey, United Kingdom on the basis of replies to a questionnaire, European Commission for Democracy Through Law (Venice Commission), Council of Europe, 22 October 2008. Retrieved 16 August 2012
  18. ^ "For første gang siden Trille i 1971 - dansker tiltalt for blasfemi" [For the first time since Trille in 1971 - Dane charged with blasphemy]. TV2 NEWS (in Danish). 2017-02-22. Retrieved 2017-07-08.
  19. ^ "Kirkeminister vil have blasfemiparagraf afskaffet" [Church Minister wants the blasphemy section repealed]. TV2 News (in Danish). 2017-05-10. Retrieved 2017-07-08.
  20. ^ "Efter tiltale: DF genåbner angreb på blasfemi-paragraf" [After indictment: DF reopens attack on blasphemy-section]. TV2 News (in Danish). 2017-02-23. Retrieved 2017-07-08.
  21. ^ "Et flertal har afskaffet blasfemiparagraffen" [A majority has repealed the blasphemy-section]. TV2 News (in Danish). 2017-06-02. Retrieved 2017-07-08.
  22. ^ Justitsministeriet (2017-03-29), Forslag til lov om ændring af straffeloven. (Ophævelse af straffelovens blasfemibestemmelse). [Proposal to amend the Penal Code. (Repealing the Penal Code's blasphemy section).], retrieved 2017-07-08
  23. ^ Pia Buhl Andersen (20 April 2012). "Lars Hedegaard is acquitted of opinions about Muslims" (in Danish). Politiken.DK. Retrieved 16 August 2012. (English translation)
  24. ^ "Jesper Langballe admits defamation after Muslim rape comments", IceNews, 14 December 2010. Retrieved 16 August 2012
  25. ^ "Three Berlingske Tidende Journalists Acquitted of State Security Charges" Archived 2016-03-19 at the Wayback Machine, Reporters Without Borders, 4 December 2004, accessed 16 August 2012
  26. ^ Justitsministeriet (1834-07-01), Kanc. Cirkl. af 7de Januar 1834 til samtlige Amtmænd og Vicepolitidirekteuren i Kjøbenhavn ang. danske Undersaatters og de her ansatte fremmede Konsulers Ret til at lade Flag vaie paa deres Boliger. (* 1), retrieved 2023-06-23
  27. ^ Justitsministeriet (1854-02-08), Cirkulærer om ophævelse af forbudet mod flagning i kanceli cirkulære af 7. januar 1834., retrieved 2023-06-23
  28. ^ Justitsministeriet (1915-10-04), Bekendtgørelse om Forbud mod at benytte fremmede Nationsflag., retrieved 2023-06-23
  29. ^ Justitsministeriet (2023-06-22), Bekendtgørelse om ophævelse af bekendtgørelser om flagning med fremmede nationsflag, retrieved 2023-06-23
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