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Supreme Court of Denmark

Daily penalties for unlawful disclosure of confidential information 

Case no. 78/2011
Judgment 21 February 2012

The Public Prosecutor
T1 and T2

Daily penalties for unlawful disclosure of confidential information

On 21 May 2006, DR (the Danish Broadcasting Corporation) showed a critical programme on the conditions at the care centre Fælledgården in its weekly news magazine "Magasinet Søndag". The programme featured footage of, among other things, four residents in very intimate situations. The footage had been shot with a hidden camera by T2 during her two-month employment as a temporary assistant at Fælledgården. At this time, she was also employed as a trainee journalist at a film production company. T1 was the co-owner of this production company. The footage was handed over to DR for the programme which aired on 21 May 2006.

The Supreme Court noted that T2 as an employee at Fælledgården was subject to a duty of secrecy in respect of confidential information obtained by her during the course of her work, including concerning the residents' health.  T2 acted in accordance with a prior agreement with and inducement from T1 who could, thus, be sentenced for complicity in the infringement committed by T2 of s. 152 of the Danish Penal Code concerning secrecy. T1 and T2 had provided the production company and DR with unpixellated footage, while some of the footage shown on TV had been pixellated. The footage had contained confidential information, including concerning the health of the residents in question.

After having weighed the interests of the affected residents at Fælledgården against the interests of the freedom of expression of the press, the Supreme Court concluded that it was not justified to disclose the confidential information under s. 152(1), cf. s. 152e(2), of the Danish Penal Code, as interpreted in light of article 10 of the European Human Rights Convention.

Each defendant was ordered to pay 10 daily penalties of DKK 500 each.

The High Court had reached the same conclusion.


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