Ruling on alleged identity theft - the Danish novel "Suverænen"

Date 1 jun. 2011

 

A writer’s use of information on a colleague’s private life was not found to be a violation of the right to respect for private and family life pursuant to the European Human Rights Convention (hereinafter the  “EHRC”), Section 8, but, on the contrary, in agreement with the artistic freedom of expression pursuant to Section 10(1) of the EHCR.


The case in brief

A writer (hereinafter the ”Writer”) was inspired by and used an artist-colleague’s (hereinafter the “Colleague”) life as a starting point when he created a main character for his book, so that the book’s main character had several factual matters in common with the Colleague.


In relation to the book’s main character, the Writer had e.g. used the Colleague’s full name, names of his children, former place of residence, former work place and information regarding the fact that he was divorced and had received financial grants for several art projects. Furthermore, the front and inside cover of the book featured a picture of the Colleague.


The Colleague thereafter sued the Writer and his publishers claiming that the Writer had unjustifiably used and published information concerning the Colleague’s private life.


Background information

Prior to the creation of the book, the Writer and the Colleague had been travelling together in the US for the purpose of creating new artistic projects and products, and the creation of the book was not a predetermined object of the journey at that time.


A similar journey had been taken earlier during their multiannual co-operation, which had led to the publication of a book in which the Colleague had also been used as inspiration for the book’s main character. Furthermore, their co-operation had then consisted of the preparation of a joint website, blogs and art projects.


The legal foundation of the decision

According to Section 8 of the EHRC, everybody has the right to respect for their private and family life.


Section 10(1) of the EHRC prescribes that everybody has the right to freedom of speech, including artistic freedom of expression. There is, however, a limitation in Section 10(2), according to which, limitations in the freedom of speech may be set if this is necessary in a democratic society out of consideration for another person’s reputation and rights.


The Danish Eastern High Court’s ruling

Based on obtained reviews and evidence given by the parties, the Danish Eastern High Court initially (hereinafter the “Court”) decided that the book was a novel and that the entire work could be characterised as fiction and not as a documentary book.


However, the Court accepted that the book used existing persons, things and events as a starting point, and the Court examined whether the consideration in Section 254(d) of the Danish Criminal Code and Section 8 of the EHRC could result in violation of the limits of the artistic freedom of expression under Section 10.


The Court assessed the nature of the book’s artistic expression and the nature of the private information. The Court decided – particularly due to the characteristics of the reviews and the categorisation of the book as fiction – that the book was an expression of participation in a debate regarding subjects of political and social interests.


When assessing the nature of the information, the Court divided these into two categories:


  1. Information concerning the Colleague’s name, picture, former work place and granting of public funding was categorised by the Court as information which was already publicly known and thus not protected against publication.
  2. Information concerning the Colleague’s status as divorced, names of the children and former address was categorised by the Court as information of a less sensitive nature.

The Court concluded that the consideration for artistic freedom clearly weighted more heavily than the consideration for protection of information which was already publicly known and information of a less sensitive nature.


In addition thereto, the Court pointed out that the parties had been working together for several years on different public and published art projects, and that the parties in connection with other journeys abroad had published texts and pictures via their joint website. The Court further emphasised that the Colleague in a previous book had been used as inspiration, and that his picture appeared both on the front and back cover of the book without the Colleague objecting to the use of either at that time. On the basis hereof, the Court concluded that the Colleague had consented to the use of his name and picture and that the parties’ joint experiences could be used artistically by the Writer.


Consequently, the Court determined that the Writer and his publishers had not unjustifiably used and published information on private matters and judgment was given in favour of the Writer.


Consequences of the ruling

The media called this a historical trial and literature experts have stated that the ruling will be of significant importance to modern literature in which it becomes ever more common for writers to closely imitate real persons and events. The case was referred from the city court to the Court due to its fundamental nature. Case law is also extremely sparse within this area of law, which is why the ruling will undoubtedly be referred to in similar cases.


However, special factual circumstances apply with regard to the parties’ previous and extensive co-operation, accept of mutual use of each other’s works and the existence of a far-reaching consent. The ruling is deemed to be very specifically substantiated on several accounts.


The Court’s ruling does not prescribe that the artistic freedom of expression as default weighs more heavily than the right to private and family life, but that these two fundamental rights must continuously be balanced.


Read the Danish press release from the Danish Eastern High Court here:

http://www.domstol.dk/oestrelandsret/nyheder/Pressemeddelelser/Pages/FrifindelseafforfatterogforlagisagomromanenSuver%C3%A6nen.aspx



If you have any questions or require any additional information on the case, please contact attorney Dan Moalem (dmo@mwblaw.dk) or attorney Henrik Syskind Pedersen (hsp@mwblaw.dk).


The above does not constitute legal counseling and Moalem Weitemeyer Bendtsen does not warrant the accuracy of the information. With the above text, Moalem Weitemeyer Bendtsen has not assumed responsibility of any kind as a consequence of the above as a basis of decisions or considerations.