JOINT DISSENTING OPINION OF JUDGES RYSSDAL, BERNHARDT, SPIELMANN AND LOIZOU

1.   This is the first time that the Court has been concerned with a case of dissemination of racist remarks which deny to a large group of persons the quality of "human beings". In earlier decisions the Court has - in our view, rightly - underlined the great importance of the freedom of the press and the media in general for a democratic society, but it has never had to consider a situation in which "the reputation or rights of others" (Article 10 para . 2) (art. 10-2) were endangered to such an extent as here.

2.   We agree with the majority (paragraph 35 of the judgment) that the Greenjackets themselves "did not enjoy the protection of Article 10 (art. 10)". The same must be true of journalists who disseminate such remarks with supporting comments or with their approval. This can clearly not be said of the applicant. Therefore it is admittedly difficult to strike the right balance between the freedom of the press and the protection of others. But the majority attributes much more weight to the freedom of the journalist than to the protection of those who have to suffer from racist hatred.

3.   Neither the written text of the interview (paragraph 11 of the judgment) nor the video film we have seen makes it clear that the remarks of the Greenjackets are intolerable in a society based on respect for human rights. The applicant has cut the entire interview down to a few minutes, probably with the consequence or even the intention of retaining the most crude remarks. That being so, it was absolutely necessary to add at least a clear statement of disapproval. The majority of the Court sees such disapproval in the context of the interview, but this is an interpretation of cryptic remarks. Nobody can exclude that certain parts of the public found in the television spot support for their racist prejudices.

And what must be the feelings of those whose human dignity has been attacked, or even denied, by the Greenjackets ? Can they get the impression that seen in context the television broadcast contributes to their protection? A journalist ’ s good intentions are not enough in such a situation, especially in a case in which he has himself provoked the racist statements.

4.   The International Convention on the Elimination of All Forms of Racial Discrimination probably does not require the punishment of journalists responsible for a television spot of this kind. On the other hand, it supports the opinion that the media too can be obliged to take a clear stand in the area of racial discrimination and hatred.

5.   The threat of racial discrimination and persecution is certainly serious in our society, and the Court has rightly emphasised the vital importance of combating racial discrimination in all its forms and manifestations (paragraph 30 of the judgment). The Danish courts fully recognised that protection of persons whose human dignity is attacked has to be balanced against the right to freedom of expression. They carefully considered the responsibility of the applicant, and the reasons for their conclusions were relevant. The protection of racial minorities cannot have less weight than the right to impart information, and in the concrete circumstances of the present case it is in our opinion not for this Court to substitute its own balancing of the conflicting interests for that of the Danish Supreme Court. We are convinced that the Danish courts acted inside the margin of appreciation which must be left to the Contracting States in this sensitive area. Accordingly, the findings of the Danish courts cannot be considered as giving rise to a violation of Article 10 (art. 10) of the Convention.

JOINT DISSENTING OPINION OF JUDGES GÖLCÜKLÜ, RUSSO AND VALTICOS

(Translation)

We cannot share the opinion of the majority of the Court in the Jersild case.

There are indeed two major principles at issue in this case, one being that of freedom of expression, embodied in Article 10 (art. 10) of the Convention, the other the prohibition on defending racial hatred, which is obviously one of the restrictions authorised by paragraph 2 of Article 10 (art. 10-2) and, moreover, is the subject of basic human rights documents adopted by the General Assembly of the United Nations, in particular the 1965 Convention on the Elimination of All Forms of Racial Discrimination. That Convention manifestly cannot be ignored when the European Convention is being implemented. It is, moreover, binding on Denmark . It must also guide the European Court of Human Rights in its decisions, in particular as regards the scope it confers on the terms of the European Convention and on the exceptions which the Convention lays down in general terms.

In the Jersild case the statements made and willingly reproduced in the relevant broadcast on Danish television, without any significant reaction on the part of the commentator, did indeed amount to incitement to contempt not only of foreigners in general but more particularly of black people, described as belonging to an inferior, subhuman race ("the niggers ... are not human beings ... Just take a picture of a gorilla ... and then look at a nigger, it ’ s the same body structure ... A nigger is not a human being, it ’ s an animal, that goes for all the other foreign workers as well, Turks, Yugoslavs and whatever they are called.").

While appreciating that some judges attach particular importance to freedom of expression, the more so as their countries have largely been deprived of it in quite recent times, we cannot accept that this freedom should extend to encouraging racial hatred, contempt for races other than the one to which we belong, and defending violence against those who belong to the races in question. It has been sought to defend the broadcast on the ground that it would provoke a healthy reaction of rejection among the viewers. That is to display an optimism, which to say the least, is belied by experience. Large numbers of young people today, and even of the population at large, finding themselves overwhelmed by the difficulties of life, unemployment and poverty, are only too willing to seek scapegoats who are held up to them without any real word of caution; for - and this is an important point - the journalist responsible for the broadcast in question made no real attempt to challenge the points of view he was presenting, which was necessary if their impact was to be counterbalanced, at least for the viewers.

That being so, we consider that by taking criminal measures - which were, moreover, moderate ones - the Danish judicial institutions in no way infringed Article 10 (art. 10) of the Convention.