Judgment delivered on 3 June 2015
Stating that a journalist had been a KGB agent and that the Danish Security and Intelligence Service (PET) had considered him to be a KGB agent was a criminal offence
In 2007 and 2008, Bent Jensen made a number of statements about Jørgen Dragsdahl in national newspapers concerning Dragsdahl's activities as a journalist and debater during the Cold War and his relationship with the KGB and the Soviet Union. The issue in this case was whether it was a criminal offence to make these statements.
The majority of the Supreme Court ascertained that some of the statements contained allegations that Dragsdahl had been a KGB agent and that the PET had considered him to be a KGB agent. These statements were defamatory charges alleging that Dragsdahl had committed a criminal offence.
In the assessment of whether making these statements had been justified, regard had to be had to the fact that Jensen had made the statements in a public debate of issues of great public interest, and that Dragsdahl, as a well-known journalist with a long history of being very active in debates about security-related issues during the Cold War, had to be prepared to be the subject of critical comment and assessment.
On the other hand, importance should be given to the fact that the allegations concerned a criminal offence and that they had been unfounded. It also had to be considered that Bent Jensen was aware that, following extensive investigations, the PET had concluded that there was no basis for recommending to the Ministry of Justice that Dragsdahl be charged. It was also taken into account that Bent Jensen had been given special access to material from the Danish Security and Intelligence Service to use for general research into Cold War history, while Dragsdahl did not have access to this material and, thus, had limited opportunity to refute Bent Jensen's allegations. Based on a general weighing of the consideration for Jensen's right to freedom of speech and the consideration for Dragsdahl's reputation, the majority of the Supreme Court held that the allegations that Dragsdahl was an agent were punishable.
However, there was no basis for punishing Jensen for saying that Dragsdahl had participated in conspirative meetings with KGB officers, as there was sufficient basis for these statements. Jensen's allegations of disinformation against Dragsdahl were also not punishable, as they were based on facts.
The majority imposed 10 daily penalties of DKK 1,000 on Jensen and ordered him to pay compensation for injury to Dragsdahl's reputation of DKK 100,000. Dragsdahl was also entitled to have the allegations of him being an agent declared to be unfounded.
The High Court had reached a different conclusion.