A Tweet Too Far? The Court Reassesses Online Speech and Reputation in Danish Defamation Case

By Dr. Dominika Bychawska-Siniarska

In its recent case Mortensen v. Denmark, the ECtHR had yet another opportunity to assess whether calling someone a ‘Nazi’ falls within the boundaries of freedom of expression. Following earlier cases such as Lingens v. Austria, Brosa v. Germany and Balaskas v. Greece, the Court examined in detail whether such a characterisation constitutes a value judgment, whether it could contribute to a matter of public interest, and how far it should be tolerated by a public figure known for far-right, nationalist, and anti-Islam statements.

In the present case, the Court not only had to balance the right to reputation against freedom of expression, but also, from a broader perspective, assess what forms of speech are acceptable in a democratic society. The Court underlined that the condemnation of hate can itself constitute an act of defending democratic values and therefore merits protection under Article 10 of the Convention.

Facts of the case

The proceedings originated from a private criminal defamation action brought after the applicant posted a Twitter comment in which he criticised what he perceived as inconsistency in law enforcement. Referring to the arrest of an individual for insulting a police officer, he wrote: ‘[l]et me get this straight … R.P. … 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?’ (para 5).

The comment targeted R.P., a well-known far-right activist in Denmark whose activities—including anti-Islam demonstrations, the burning of Qurans, and other provocative acts directed at ethnic and religious minorities—had made him a prominent and divisive figure in national debate (para 6). He had previously been convicted of defamation and of racist expression. Although R.P. had founded and led three political parties (among them Stram Kurs), R.P. held no public office at the time of the events, and none of his political movements were represented in Danish institutions (para 7).

R.P. lodged a private prosecution seeking the applicant’s conviction for defamation, removal of the post, and compensation (paras 8, 16). The District Court convicted the applicant, ruling that characterising R.P. as a ‘Nazi’ lacked a sufficient factual basis. The applicant was sentenced to 10 day-fines of 1,000 Danish Kroner (DKK) (around EUR 130) each and ordered to pay DKK 45,000 (around EUR 6,000) to R.P. in compensation (para 9). He appealed, arguing that extensive public debate, media reports, and R.P.’s own statements and conduct provided sufficient factual foundation for the value judgment (para 10).

The High Court upheld the conviction on appeal, while reducing the award of compensation to DKK 30,000 (roughly EUR 4,000). It agreed that the statement was a value judgment but found no adequate factual basis supporting it. The High Court further held that the applicant’s tweet did not contribute to a debate of general public interest, given that it had appeared within a thread concerning an unrelated arrest. It ordered deletion of the post (para 11). On 7 February 2024, the Appeals Permission Board refused leave to appeal to the Supreme Court (para 12).

The Court’s judgment

In assessing whether the interference with the applicant’s freedom of expression had been ’necessary in a democratic society’, the Court began by recalling its general principles on Article 10, particularly the structured approach to balancing expression against competing Convention interests, notably Article 8 (right to freedom of private life). These principles, drawn from Von Hannover (No. 2) v. Germany [GC], Axel Springer AG v. Germany [GC], Pentikäinen v. Finland [GC], and Bédat v. Switzerland [GC], guide domestic authorities in determining whether a restriction pursues a legitimate aim and whether it is proportionate to that aim (para 35).

A central conceptual distinction underpinning such an assessment is that between statements of fact and value judgments. The Court reiterated that while facts may be proved true or untrue, value judgments are inherently insusceptible to proof; insisting on such proof violates Article 10. Nonetheless, even value judgments must rest on a ‘sufficient factual basis’, failing which the expression may become excessive (para 36, citing Pedersen and Baadsgaard v. Denmark [GC] and Jerusalem v. Austria).

The Court then emphasised its established framework for resolving conflicts between Articles 8 and 10, identifying a series of criteria that guide the balancing exercise in cases involving reputation: (a) contribution to a debate of public interest; (b) the public status of the person concerned; (c) the subject matter of the expression; (d) prior conduct of the person criticised; and (e) the form, content, and consequences of the impugned statement. In defamation cases, additional factors include (f) the method of obtaining the information and its veracity, and (g) the severity of the sanction imposed. Where domestic courts apply these criteria conscientiously, the Strasbourg Court requires ’weighty reasons’ to substitute its own assessment (para 37).

Turning to the present case, the Court observed that the High Court had accepted that the impugned phrase was a value judgment but concluded that the applicant lacked a sufficient factual basis and that the tweet did not form part of a public interest debate (para 39).

The Court addressed the meaning and weight of the term ‘Nazi’, noting that, although highly stigmatising, it does not automatically justify a defamation conviction. Strasbourg case-law confirms that even harsh political epithets such as ‘fascist’ may be permissible in certain contexts, and using such labels does not amount to alleging formal political affiliation (para 40). The Court agreed that the term was a value judgment but held that the High Court had failed to provide adequate reasoning for its conclusion that no sufficient factual basis existed. The High Court had merely asserted insufficiency without engaging with the applicant’s materials or the extensive public record on R.P.’s political behaviour (para 42).

The Court also disagreed with the High Court’s finding that the tweet did not concern a matter of public interest. The post addressed issues of equal treatment before the law and the limits of free expression, directly engaging the broader public debate (para 43). Given R.P.’s notoriety for testing the boundaries of free speech, reference to him was relevant and legitimate (para 43). In such contexts, political speech commands heightened protection and the margin of appreciation is narrow (para 44).

A further shortcoming identified by the Court was the national court’s failure to consider R.P.’s status as a public figure. Although not an elected politician, he was the founder of controversial political parties, frequently engaged in highly publicised anti-Islam protests (including Quran burnings), and he had himself been convicted of defamation and racist speech. Public figures, by Strasbourg standards, must display ‘a particularly high degree of tolerance’ to criticism (para 45). The High Court was also deemed to have failed to note that the applicant was a private individual posting on another private user’s Twitter account (para 46).

The Court then addressed the consequences of the publication. The High Court had made no findings on how widely the tweet had been disseminated, whether it had reached the media, or whether it had had any public impact—factors relevant to proportionality (para 47).

Finally, the Court examined the severity of the sanctions. While criminal convictions for defamation are not inherently disproportionate, the combined fine and compensation award—amounting to approximately EUR 5,400—had been excessive (para 48). Given these deficiencies, the Court concluded that the domestic courts had failed to apply the proper balancing test and that the interference had not been ’necessary in a democratic society’ (para 49). It therefore found a violation of Article 10 (para 50). Most importantly, the judgment was adopted unanimously.

Good speech vs. bad speech

The Mortensen v. Denmark judgment provides a nuanced contribution to debates about the limits of permissible speech in democratic societies, particularly in digital spaces where expression is often more direct, confrontational, and polarising. Social media have emerged as a central vehicle for authoritarian propaganda and extremism. At the same time, their impact on democratic governance is more diffuse and systemic than the overtly anti-democratic movements that we have witnessed historically. The applicant’s description of a far-right, openly anti-migrant and anti-Muslim politician as a ‘Nazi’ emerged not as gratuitous insult but as a pointed reaction to the political figure’s own extremist rhetoric. In this sense, the impugned expression was embedded within a wider public debate on immigration, exclusionary nationalism, and the resurgence of ultra-right movements in Europe—issues that are at the core of democratic deliberation (para 40).

The Court’s finding of a violation of Article 10 reinforces the presumption of enhanced protection for speech that contributes to public discussion on matters of general interest, as articulated in Balaskas v. Greece. Crucially, Mortensen clarifies once again that severe or offensive language does not, in itself, justify sanctions (para 48). The Court reiterated that terms such as ‘fascist’, ‘idiot’, or ‘Nazi’ may fall within acceptable parameters of political criticism when used as value judgments rather than factual allegations, and where a sufficient factual basis exists in the broader context—following the approach in Balaskas. This doctrinal line is consistent with Feldek v. Slovakia, where the Court accepted a value judgment linking a minister to the ultra-right Hlinka movement even though the factual basis was extremely slim (the individual had only briefly participated in unrelated activities at the local Hlinka premises). The key requirement, reaffirmed in Mortensen, is that domestic courts must carry out a thoroughly reasoned, context-sensitive balancing of the competing rights at stake (para 49). A mere declaration that the impugned term lacks an adequate factual basis cannot satisfy the Convention where courts fail to examine the ideological profile of the target and their public role, the applicant’s intention to participate in a public debate, the broader societal context, and the character of social-media communication itself.

The judgment also gains significance when read against the broader Council of Europe framework concerning criminal defamation. For decades, both the ECtHR and the Council of Europe have emphasised that criminal defamation laws are inherently capable of chilling legitimate public debate, and have repeatedly called on states to move towards alternative mechanisms. While the Court has never categorically prohibited criminal defamation, it has consistently required states to exercise great restraint in resorting to criminal sanctions. The Court has made clear that the proportionality of any interference will in many cases depend on whether the authorities could have used less intrusive means, such as civil or disciplinary sanctions. This systemic guidance is particularly relevant in Mortensen, given that Denmark—like many Council of Europe member States—still retains criminal defamation in its legal framework. The judgment thus implicitly reiterates that criminal proceedings are highly problematic where the impugned expression forms part of political counter-speech responding to discriminatory or exclusionary rhetoric.

The judgment may do little more than repeat the principles derived from the well-established freedom of expression case law but viewed from a broader, conceptual perspective, Mortensen illuminates the deeper normative tension between what may be termed ‘good’ and ‘bad’ speech. Although formally framed as a conflict between the applicant’s freedom of expression and the politician’s right to reputation, the substance of the case reveals a more fundamental balancing exercise: on one side stood speech aimed at defending democratic values and countering extremist narratives; on the other stood the speech of a political actor known for xenophobic and inflammatory statements—speech that had already led to sanctions at the domestic level. The Court’s reasoning thus implicitly recognises that protecting robust counter-speech against discriminatory or exclusionary rhetoric is itself essential to democratic pluralism, particularly in the volatile communicative environment of social media.