FOURTH SECTION
CASE OF MORTENSEN v. DENMARK
(Application no. 16756/24)
 
 
JUDGMENT
 
Art 10 • Freedom of expression • Applicant’s criminal conviction of defamation for posting on another private individual’s social media account that a named controversial leader of a right-wing national and anti-Islam political party “is allowed to be a Nazi” • Domestic courts’ failure to conduct a proper balancing exercise of competing interests • Post concerned the administration of justice in Denmark and the limits of freedom of speech and did not appear irrelevant to the debate at issue • Cumulative sanction of a criminal conviction and payment of a fine and a significant amount of compensation disproportionality severe • Interference not “necessary in a democratic society”
 
Prepared by the Registry. Does not bind the Court. STRASBOURG
21 October 2025
 
FINAL
 
21/01/2026
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Mortensen v. Denmark,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
 Lado Chanturia, President,
 Faris Vehabović,
 Lorraine Schembri Orland,
 Anja Seibert-Fohr,
 Anne Louise Bormann,
 Sebastian Răduleţu,
 András Jakab, judges,
and Simeon Petrovski, Deputy Section Registrar,
Having regard to:
the application (no. 16756/24) against the Kingdom of Denmark lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Danish national, Mr Mathias Friis Mortensen (“the applicant”), on 7 June 2024;
the decision to give notice to the Danish Government (“the Government”) of the application;
the parties’ observations;
Having deliberated in private on 23 September 2025,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The case concerns the conviction of the applicant for writing a post on the social media platform then called Twitter, stating that a named controversial leader of a political party “is allowed to be a Nazi ... [whereas another person was convicted for calling a police officer an idiot]”. The applicant complained that the High Court’s judgment had been in violation of his rights under Article 10 of the Convention. THE FACTS
2. The applicant was born in 1989 and lives in Kolind. He was represented by Mr Claus Bonnez, a lawyer practising in Aarhus. 3. The Government were represented by their Agent, Ms Vibeke Pasternak Jørgensen, of the Ministry of Foreign Affairs, and their co-Agent, Ms Nina Holst-Christensen, of the Ministry of Justice. 4. The facts of the case may be summarised as follows. 5. On 5 May 2021 the applicant, in his capacity as a private individual, wrote the following post on a public thread from another user’s Twitter account:
“Let me get this straight ... R.P. [see paragraph 6 below] is allowed to be a Nazi, burn Korans and say horrible things about people solely on the basis of their ethnic origin, but [another specific individual] gets arrested for calling a police officer an idiot?”
6. R.P. was the founder and leader of the right-wing national and anti‑Islam political party called Stram Kurs. In the general election on 5 June 2019 the party obtained 1.8% of the public vote, which was not sufficient to be elected to the Danish Parliament. According to the website of Stram Kurs, inter alia, that the philosophical basis of the party was ethnonationalist utilitarianism and that members of the party had to dissociate themselves from racism, Nazism and fascism to qualify for membership. R.P. attracted attention to himself in the public debate in connection with and prior to the election campaign in 2019 through several anti-Islam protests and public appearances and by becoming involved in several cases concerning the burning of Korans and other manifestations through which he had expressed a critical standpoint on the presence of, in particular, Islam in Denmark. In connection with the 2019 election campaign, R.P.’s viewpoints were often mentioned in the news and other media and it was debated in several printed and televised news media and among professionals and historians whether R.P. should be considered a fascist or a Nazi. In March 2020 the Danish Election Board (Valgnævnet) decided to exclude Stram Kurs from the right to continue its collection of voter declarations until September 2022 on account of several instances of fraudulent practices in connection with the party’s collection of voter declarations. Subsequently, in the summer of 2020 and in the summer of 2021, R.P. founded two new parties. One of them was the party called Hard Line, which had the same philosophical basis as Stram Kurs, according to the information available. None of those parties managed to collect enough voter declarations to submit an application for registration of the party for the general election in the autumn of 2022. Accordingly, at the time of the applicant’s post on 5 May 2021, R.P. was a member of the parties Stram Kurs and Hard Line, neither of which were represented in Parliament or in other representative democratic bodies, nor were candidates nominated by the parties entitled to run in the 2022 general election. 7. R.P. was convicted for defaming a leader of a political party in May 2019 during a debate on television by calling her a “Nazi pig” (Nazist-svin). That political leader was convicted for using the words “manifest Nazi” (åbenlys Nazist) in respect of R.P. In 2019 and 2021 R.P. was convicted of racist speech under section 266b of the Penal Code. 8. On 4 November 2021 R.P. instituted proceedings before the District Court (Retten i Randers), requesting that the applicant be convicted of defamation under Article 267 of the Penal Code, that he be ordered to pay compensation and that the post be declared unfounded and be deleted. 9. By a judgment of 18 November 2022, the District Court convicted the applicant of defamation, holding that the term “Nazi” had been unfounded, sentenced him to 10 day-fines of 1,000 Danish kroner (DKK) each (equivalent to approximately 1,350 euros (EUR)), and ordered the applicant to delete the post and to pay R.P. DKK 45,000 in compensation (equivalent to approximately EUR 6,000). 10. The applicant appealed against that judgment to the High Court (Vestre Landsret), contending, among other things, that there had been a sufficient factual basis for making the statement, since, in particular in 2019, R.P. had made numerous statements which could give the impression that he subscribed to views that closely resembled those subscribed to in Nazism. Moreover, many publicly available sources concerning statements made or conduct exhibited by R.P. had made the impression that he subscribed to views identical or similar to those propagated by Nazism (see also paragraphs 6 and 7 above). 11. On 5 October 2023 the High Court upheld the District Court’s judgment, but reduced the compensatory amount to DKK 30,000 (equivalent to approximately EUR 4,000). The High Court gave the following reasoning:
“Objectively, the statement was likely to damage R.P.’s reputation, under [Article] 267 of the Penal Code, and the High Court is satisfied that [the applicant] had the requisite intent when making the statement on Twitter about the respondent being a Nazi. Pursuant to [Article] 269 § 1 of the Penal Code, a defamatory statement is exempt from punishment if it was made in a context in which it was reasonably justified. To determine whether that was the case in the matter at hand, an assessment taking into account, inter alia, Articles 8 and 10 of the Convention must be made. On the basis of the content of the statement and the context in which it was made, the High Court finds that the statement must be deemed specifically to be in the nature of a value judgment. When assessing whether the statement must be deemed exempt from punishment, it must be taken into account whether a sufficient factual basis for the defamatory statement has been established and whether the defamatory statement was made or disseminated in good faith and for a meritorious purpose. The High Court finds that, in combination, the information on file concerning R.P. and his actions and conduct, as well as the presentation of R.P.’s affiliation, views and opinions as reported in various media, do not amount to the requisite sufficient factual basis for the statement in which he was referred to as a Nazi. As concerns the information referred to in the various media, it is observed that the relevant pieces of information have not been substantiated by further details in the form of source material or the like. Nor does the remaining information on file, including the information about R.P.’s protest at the ceremony in memory of the Night of Broken Glass, provide any specific grounds for the statement to be considered sufficiently substantiated. The High Court also finds that [the applicant’s] post cannot be deemed to have the nature of a contribution to a public debate about a topic of considerable interest to society. Accordingly, [the applicant’s] post arose from another user’s post about the arrest of a specific person who had called a police officer an ‘idiot’, and the statement about R.P. and the referral to him as a Nazi did not have the requisite interest to society in the relevant context. Consequently, [the applicant] is not exempt from punishment under [Article] 269 of the Penal Code. For the reasons given by the District Court, the High Court upholds the sentence of 10 day-fines of DKK 1,000 each. The alternative sentence is imprisonment for a term of 10 days. The High Court upholds the finding that the statement is unfounded under [Article] 270 of the Penal Code. Furthermore, the High Court upholds the decision to order that the post be deleted under [Article] 271 of the Penal Code. The compensatory amount awarded under section 26(1) of the Danish Liability and Compensation Act is fixed at DKK 30,000 in view of the nature of the defamation and the offence as well as the other facts of the case.”
12. On 7 February 2024 the Appeals Permission Board (Procesbevillingsnævnet) refused to grant the applicant leave to appeal to the Supreme Court (Højesteret). RELEVANT LEGAL FRAMEWORK
The Penal Code
13. The relevant provisions of the Penal Code read as follows:
Article 267:
“1. Any person who issues or disseminates a statement or other communication or who commits an act likely to damage another person’s reputation shall be sentenced to a fine or imprisonment for a term not exceeding one year for defamation, although see Articles 268 and 269. 2. Paragraph 1 shall not apply if the defamation concerns a deceased person and the act of defamation was committed more than 20 years after such person’s death, unless the act falls under Article 268.”
Article 269
“1. An act of defamation shall be exempt from punishment if it was made in a context in which it was reasonably justified. 2. In the assessment under paragraph 1, it shall be taken into account, inter alia, whether the truth of the statement of fact has been verified or whether there was a sufficient factual basis for the defamation, and whether the defamatory statement was made or disseminated in good faith and for a meritorious purpose. 3. No evidence shall be produced of a criminal act if the person at whom the statement of fact was directed has been acquitted of the act by a final judgment.”
Article 271
“1. A judgment for a violation under Articles 264d, 264e, 267 or 267 in conjunction with Article 268 may also require the deletion of a statement, communication, photograph or other transmission, if possible. 2. A duty under paragraph 1 is incumbent on the person convicted of the offence. If the offender does not have the right of disposal over the statement, communication or picture, an order for its deletion may be issued in respect of the person having such right of disposal.”
14. The provisions above were given their current wording in 2018 on the basis of a comprehensive Committee Report. The draft bill was based on, inter alia, a thorough review of the case-law of the Court (pages 130-40 of the Report), which included the following general observations on the amendments:
“The Standing Committee on the Penal Code agrees that there is a need for new wording of the provisions on defamation to ensure that they better reflect applicable law in relation to the Convention. This applies in particular to the provisions of Articles 269 to 271 on the submission of evidence of the truth, among other things ... The key issue under the Convention is whether an utterance ought to be protected in the context in which it was made. Assessments under the Convention comprise a large number of elements, whose weights vary depending on the context in which the relevant utterance was made. ...”
15. The 2018 amendment also meant that the amounts of the fines issued in respect of defamation were tripled as compared with the previous level of sanctioning. 16. As opposed to the general rule of the Penal Code, acts of defamation in violation of Article 267 of the Penal Code are generally subject to private prosecution (Article 275 § 1 of the Penal Code). The Liability and Compensation Act
17. The relevant provision of the Liability and Compensation Act (erstatningsansvarsloven) reads as follows:
Section 26
“(1) Any person who is liable for unlawful violation of another person’s freedom, peace, honour or person shall pay compensation to the victim of the injury to dignity, feelings or self-respect. (2) In the determination of the amount of compensation, it may be taken into account whether the violation was caused by an offence involving a contravention of the provisions set out in Articles 23 or 24 of the Penal Code, including whether the violation was caused to a person under 18 years of age. The same applies if the violation was caused by an offence involving a contravention of the provisions set out in Article 275 of the Penal Code [in conjunction with Article 267 of the Penal Code]. This shall not apply to the offences mentioned in Articles 266 to 266b of the Penal Code. In the determination of the amount of compensation, it may also be taken into account whether the violation was a sexual cybercrime ...”
18. The second sentence of section 26(2) was inserted by the 2018 amendment mentioned above. According to the explanatory notes to the bill the second sentence of section 26(2) meant that compensatory amounts awarded for injury to dignity, feelings or self-respect should generally be tripled as compared with the previous level. THE LAW
ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
19. The applicant complained that the High Court’s judgment of 5 October 2023 had violated his right to freedom of expression as secured by Article 10 of the Convention, which reads as follows:
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
Admissibility
20. The Government submitted that the application should be declared manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. 21. The applicant disagreed. 22. The Court notes that the application is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. MeritsThe parties’ submissions

(a)   The applicant
23. The applicant submitted in particular that the impugned statement had been a value judgment with a sufficient factual basis. He referred to the substantial material submitted during the domestic proceedings, which in his view had shown that R.P.’s ideology had not differed in any discernible way from those of Nazis or fascists. 24. Moreover, the post had been a response to the fact that one person had been arrested for issuing a minor insult in respect of a police officer, whereas the authorities, in the applicant’s opinion, had turned a blind eye to R.P.’s hate speech and oral attacks on ethnic minorities and Muslims. The post had thus concerned the way justice was administered in Denmark, a topic which clearly enjoyed protection as a contribution to a debate of public interest. 25. It should also be taken into account that R.P. himself had used the term “Nazi” in respect of other persons, thereby spurring a devaluation of the term (see paragraph 7 above). 26. The applicant further submitted that the post had had a very limited readership, and that he had deleted it as soon as he had realised that R.P. would not tolerate it. However, the High Court had failed to examine the size of the readership and how long the post had remained accessible. 27. Lastly, the applicant had been given a criminal sanction which was severe, notably considering that it had comprised 10 days of imprisonment in default and a significant amount of compensation which he had been ordered to pay to R.P. (b)   The Government
28. The Government contended that the interference in issue had been prescribed by law, had had a legitimate aim and had been proportionate. The High Court had struck a fair balance between the conflicting interests under Articles 8 and 10 of the Convention on the basis of principles derived from the Court’s case-law. Accordingly, by virtue of the subsidiarity principles, strong reasons would be required for the Court to substitute its view for that of the domestic courts. 29. They argued that the incident triggering the applicant’s post had concerned a person who had been arrested for calling a police officer an idiot. It had been unrelated to R.P., his political views, his use of the word “Nazi”, his way of communicating or the political line of a party registered for general elections. It had been posted more than one and a half year after the 2019 election. The Government was therefore of the opinion that the applicant’s post had not contributed to the debate in a general and substantial manner and that it could therefore not enjoy protection as a contribution to a debate of public interest. 30. Moreover, the applicant had acted as a private individual making his post on another user’s account and, at the relevant time, R.P. had not been a leader of a party registered for general elections, nor had he held any political office. The Government did not dispute that R.P., as a controversial and provocative public figure and a person in the public debate, had to tolerate harsh criticism. However, this did not extend to a severe and gratuitous attack consisting of being called a Nazi. 31. The Government reiterated that the High Court had classified the impugned utterance as a value judgment and had found that the information submitted before it about R.P. and his views and conduct had been insufficient as a factual basis for the justification of the term “Nazi” and that it could not substantiate that the applicant had acted in good faith. 32. Furthermore, the post had been disseminated through an open account on a social media platform with millions of users and R.P. had apparently been able to find it easily. In its judgment of 18 November 2022, the District Court had ordered the post deleted. That decision had been upheld by the High Court in its judgment of 5 October 2024, so it could be assumed that the post had remained online for at least 18 months. 33. Lastly, the sanction imposed had neither been excessive nor disproportionate and it fell within the margin of appreciation afforded to the State.

Outcome for Article 10: violation