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Supreme Court of Denmark

Compensation of DKK 75,000 for publication of photos showing TV presenter topless and heavily pregnant on a beach 

Case no. 431/2008
Jufgment 10. June 2010
 

A
vs
editor-in-chief B

Compensation of DKK 75,000 for publication of photos showing TV presenter topless and heavily pregnant on a beach 

The issues of the case were privacy protection and the right to photos, and it concerned two instances in which the weekly magazine Se & Hør had printed photos without A's consent.

The first instance was an issue of Se & Hør published in 2006 which, on the front page and inside the magazine, featured photos of A swimming topless and pregnant on a public, but almost deserted, beach. The other instance was an issue of Se & Hør published in 2007 which, on the front page, featured a previously published photo of A and a photo of the bed in her bedroom with, among other things, the caption "In bed with A". An article inside the magazine featured a number of photos of the different rooms in A and her former boyfriend's shared apartment. The photos of the apartment had already been published on the Internet by the estate agent commissioned to sell the apartment before being submitted to Se & Hør.

As a result, A claimed that the former editor-in-chief of Se & Hør, B, be sentenced under S. 264 d of the Danish Penal Code for the first instance and be ordered to pay compensation for both the first and the second instance.

The Supreme Court dismissed A's claim for criminal liability. The reasoning behind this dismissal was that the publication of the photos and the appurtenant text did not reveal anything about A's private affairs within the meaning of S. 264 d, and that the photos of A were not such that it was apparently justified to demand that they be withheld from the public as required by S. 264 d.

On the issue of compensation, the Supreme Court found that publication of photos like the ones in the first instance represented an unlawful infringement of A's rights entitling her to compensation for injury to her feelings under S. 26 of the Danish Liability for Damages Act. The Supreme Court gave importance to the facts that the photos of the heavily pregnant A swimming topless on an almost deserted beach had been taken without her consent and that they were not relevant to her job as a radio and TV presenter or part of coverage concerning socially relevant matters. The compensation was fixed at DKK 75,000. The Supreme Court based its determination of the amount of compensation on the facts that the photos had been printed on the front page, that the infringement was committed for financial gain and that Se & Hør must be assumed to have an economic interest in the unlawful publication of the photos. With regard to the second instance, the Supreme Court did not find that A was entitled to compensation based on an overall assessment of the nature of the photos and the headlines and A's previous conduct in public, and considering the fact that the photos of the apartment had been published before their submission to Se & Hør.

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