This report is designed to provide an overview of whistleblowing law in Denmark in order to establish best practice legislation.
Legislation particularly aimed at protecting whistleblowers is non-existent in Denmark. Therefore, one must seek guidance in various statutory provisions.
In Denmark, the concept of whistleblowing is said to be “a very unfamiliar method of revealing fraud”.1 This presumption reveals itself to be quite accurate, given the degree of protection whistleblowers are granted (close to nothing). This is mainly due to two factors: first, the duty of loyalty; and second, the limited rights employees possess when dismissed without cause (small amount of damages, scarce chance of reinstatement).
In order to create an accessible overview, the following report is divided into six main sections; the duty of loyalty, the protection for whistleblowers in various statutory provisions (divided into different sectors for public and private employees), journalistic context, case law, the Data Protection Agency, and a concluding identification of the gaps in Danish legislation regarding whistleblowers’ protection.
I. Duty of loyalty
A major principle governing employment relationships in Denmark is the employee’s duty of loyalty, under which an employee must not harm the employer’s interests and by no means disclose confidential information. Hence, if at any moment an employee becomes aware of a colleague’s misconduct, or dishonesty, his duty would be to report to the employer. If he or she “blows the whistle” and addresses a critique directly to the press or any third party, such behavior would constitute a breach of his obligations, and justify termination or even liability for damages. For example, according to Section 10 (2) of the Danish Marketing Act, the employee may not disclose trade secrets or other similar confidential information to third parties. If the employee were to do so, he would be in breach of his duties to the employer, who would then be entitled to dismiss him, or even sue for damages. Furthermore, loyalty may even, under certain circumstances, prevent an employee from addressing issues directly to upper management: he must first resolve them with his direct supervisor.2
Thus, there seems to be a conflict between loyalty and whistleblowing policies, especially when considering the use of anonymous whistleblowing “hotlines”.
There is one case where the Danish Supreme Court considered an employee’s right to inform third parties of company related information.3 The facts are as follows: an employee, during a private meeting with his bank, informed the clerk of financial difficulties which the company he worked for was facing. Even though the information was requested by the bank, the Supreme Court found that it constituted a violation of the employee’s duty of loyalty.
The case evidently does not offer much guidance as to the legitimacy of whistleblowing in Denmark, nor to the reporting of illegal activities. However, it does establish some form of precedent that stresses the importance of loyalty in employee/employer relationships.
Another case, although not particularly recent, demonstrates just how an employee may legitimately report illegal activities to third parties.4 Kaj Christiansen, an employee of a toy factory, became aware of certain tax violations committed by the company (tax evasion). Having confirmed the fraud, he dealt with the problem internally by addressing the issue to the employer, who ultimately decided not to react. The employee therefore proceeded to alert the authorities of these illegal activities, and he was, as a result, immediately fired. The Court declared in its decision that the dismissal was unjustified.
Accordingly, the protection of an employee’s right to report illegal activities will truly rely on whether his intentions were to harm the company. Indeed, putting this into perspective with the last case, the employee was considered to have acted in good faith because he addressed the issue to his employer first, before going to the authorities. It is worth noting that he would not have been entitled to start a public debate, which could have drawn unwanted attention to the company, and demonstrated harmful intent.
II. Protection for employees
II.1. The Public Sector5
Persons working in the state sector are as a main rule employed under collective agreements or as civil servants.
Since 1 January 2001, appointment as civil servants is confined to special positions that are specified in circular of 11 December 2000 on the application of civil servants’ employment in the state sector and the national church. Accordingly, it is typically some groups of managers, judges as well as some police, prison and defense staff that are employed as civil servants. Other groups are typically employed on collective agreement terms.
With effect from 2009, managers in departments, government agencies and directorates, etc. are in principle employed on contractual terms under the framework agreement regarding the employment of managers on a contract basis in the state sector. This does not apply to permanent secretaries, who continue to be employed as civil servants.
Consequently, over the years there has been a drop in the proportion of civil servants from 44 percent in 1996 to 26 percent in 2010.
A few individual personnel groups are employed according to unilaterally determined regulations, and in a small number of cases, employment is based on individual contracts.
For persons employed under a collective agreement, the Ministry of Finance and the relevant employee organizations have concluded pay and other employment terms in collective agreements. Persons employed under a collective agreement are covered by the general labor market legislation.
The employment terms for civil servants are laid down in the Civil Servants Act and the Civil Servants’ Pension Act as well as determined by collective agreement. These Acts regulate issues regarding official duties, disciplinary proceedings, dismissal and pension. Pay and other employment terms are agreed between the Ministry of Finance and the central organizations. Civil servants are covered by the general labor market legislation apart from the Holiday Act and the Salaried Employees Act.
The duty of loyalty often conflicts with freedom of speech. This becomes most evident in the public sector, where Section 77 of the Danish Constitution6 on the one hand prohibits the state from exercising censorship, including on its own employees:
Any person shall be entitled to publish his thoughts in printing, in writing, and in speech, provided that he may be held answerable in a court of justice. Censorship and other preventive measures shall never again be introduced.
(This also applies employees in the private sector.)
In relation to the freedom of expression, the Code of Conduct for public employees7 states:
- It is both useful and natural that public employees make use of their freedom of expression and participate in public debate with their knowledge and points of view.
- As individuals, public employees enjoy wide-ranging freedom of expression, including freedom to comment on resource issues that may be of significance to the workplace.
- There are few limitations to freedom of expression, among other things information that is subject to a duty of confidentiality, defamatory statements as well as clearly incorrect information about the workplace.
- Regard for public authorities’ internal decision-making process and ability to function may lead to limitations to the freedom of expression of employees in key positions.
- The duty of loyalty in the employment relationship cannot lead to further limitations to freedom of expression.
- A lawfully made statement cannot per se lead to negative reactions from management.
- Critical statements must not be made internally first,8 but openness and constructive debate should in general be encouraged at the individual workplace.
On the other hand, the Public Administration Act states provisions regarding professional secrecy for public employees and the Danish Criminal Code penalizes public employees who breach their duty of confidentiality:
Public Administration Act9
Any person acting within the public administration is bound by professional secrecy, cf. Section 152 and Sections 152c-152f of the Danish Criminal Code, whenever information is designated as confidential by Statute or other legally binding provision or whenever it is otherwise necessary to keep the information secret to protect material public or private interests, including in particular
- the security of the State and the defence of the realm;
- Danish foreign policy and Danish external economic interests, including relations with foreign powers and international institutions;
- prevention and clearing-up of any infringement of the law, prosecution of offenders, execution of sentences and the Uke, and protection of persons accused, of witnesses and others in matters of criminal or disciplinary prosecution;
- implementation of public supervision, Control, regulation and planning activities and of measures planned under taxation law; protection of public financial interests, including in public commercial activities;
- protection of public financial interests, including interests relating to
- the interests of individual persons or private enterprises or societies in protecting information on their personal or internal, including financial, circumstances; and
- the financial interests of individual persons or private enterprises or societies in protecting information on technical devices or processes or on business or operation procedures and policies.
- Any person acting within the public administration may be ordered to maintain professional secrecy in respect of any particular piece of information only when secrecy is required to protect material public or private interests as listed in subsection (l) of this Section.
- An administration authority may bind a person outside the public administration to secrecy in respect of any confidential information passed on by the authority to the person concerned without the authority being obliged to do so.
- Where rules on secrecy are provided by virtue of the provision of subsection (2) of Section l of this Act, or secrecy by virtue of the provision of subsection (3) of this Section is enjoined, Section 152 and Sections 152c-152f of the Danish Criminal Code shall apply correspondingly to any infringement of such rules or enjoinments.
Danish Criminal Code10
Section 152 (2)
Civil Servants’ Act11
Regarding the duties of an official, the Civil Service Act states the following.
Chapter 3, Section 10
The civil servant must conscientiously comply with the rules that apply to his position, and both on duty and off duty prove worthy of the esteem and trust required by the position.
In the Civil Servants’ Act, there is no mention of reasons for dismissal.
Chapter 5, Section 26
Civil servants appointed by the King shall be dismissed by the King.
Other civil servants shall be dismissed by the Minister whom they serve or by the person who has the powers to do so. However, solely the Minister may announce compulsory retirement.
The conflict between the freedom of speech and the professional secrecy for public employees has given rise to a few cases concerning whistleblowing with wide media coverage.
In the “Tamil” case12, the Special Court of Indictment and Revision found that the former Minister of Justice gave illegal instructions to his staff regarding the denial of Tamil family reunion. Several of the officers were dismissed after the trial. The judges suggested that the staff should have addressed the issue following a specific pattern: first, the problem must be dealt with internally, by reporting to a superior; second, if such measures fail, action may be taken externally by contacting the authorities, union, or shop steward. Resorting to the media must only be used as an ultimate measure.
In the so-called “Grevil” case13, a former army intelligence officer, Frank Grevil, passed on some classified information concerning the threat reports from Iraq. When he heard Danish prime minister Anders Fogh Rasmussen from the TALERSTOL of the Danish Parliament, declaring that intelligence proved that Saddam Hussein possessed weapons of mass destruction, Grevil had had it. He had taken part in gathering and communicating that intelligence, to which the prime minister referred. And it didn’t support, what the prime minister was claiming.
The classified information that major Frank Søholm Grevil leaked in 2004, came from the very stronghold of secrets, The Military Intelligence Service, FET. But this was only one of the reasons why his case created the stir that it did. Another contributing factor was that his revelations of the contents of a number of classified reports concerning the foundation for the Danish part in the war in Iraq, was in fact a frontal attack on prime minister Anders Fogh Rasmussen. Grevil felt that the prim eminister had misled both the parliament and the Danish people in claiming that Saddam Hussein had weapons of mass destruction. And to make matters worse, he had done so, when he did in fact know better. His declaration was the most important reason for the Danish participation in the coalition of the invasion of Iraq.
But Grevil had taken part in writing the reports, which the prime minister used as documentation to make his point. And the reports said nothing certain about the presence of weapons of mass destruction in Iraq. Furthermore Grevil was offended that the reports, which FET presented to the prime minister and to the Parliament’s Committee of Foreign Affairs as their own findings, were allegedly just translations of reports from the Central Intelligence Agency, CIA.
In its verdict of 23 September 2005 the Eastern Division of the Danish High Court found Grevil guilty of an offence under section 152 (2), cf. section 152 (1), of the Danish Criminal Code in that in mid-February 2004, in his capacity as a public servant with the Danish Defence Intelligence Service and under aggravating circumstances, he disclosed confidential information from the Danish Defence Intelligence Service without authorisation to Michael Bjerre, a journalist with Berlingske Tidende. Grevil was sentenced to six months in prison.
Following the “Grevil” case, the Danish Parliament demanded new legislation protecting whistleblowers. The Government thus, as of 2004, commissioned a report on possible legislation for public sector employees. The commission’s report concluded that the current protection of public employees was adequate and consequently the Government decided not to introduce special legislation in this area.
II.2. The Private Sector
A high level of flexibility characterizes the Danish labor market. The regulation of the Danish labor market is relatively limited as the social partners agree most rules. Compared to other European countries, it is relatively easy to hire and fire. This is justified by the fact that the employees receive a relatively high rate of compensation upon unemployment. The model is called the ‘flexicurity model’.14 It is characterized by a safety net in case of unemployment, by short notice periods and by a close and binding cooperation between a strong unitary trade union movement, well-organized employers and a fine-meshed social safety net. It is a model, which is often described as being particularly suitable for tackling the challenges of globalization. This, however, is not a positive element for the protection of whistleblowers in Denmark.
The flexicurity model consists of three elements:
- Flexible rules on dismissal (the flexibility-element),
- The opportunity to receive benefits upon unemployment (the security-element)
- An active labour market policy.
In Denmark, the regulation of employment law is divided into two main categories: (i) regulation on salaried employees and (ii) collective agreements.15
In Denmark the main source of labor law is collective agreement; the role of the State being one of facilitator as opposed to one of regulator. It is worthwhile highlighting that collective agreements are reported to cover 60 to 85% of employees and serve as a baseline reference by the Courts when ruling on disputes involving workers not covered by a specific collective agreement.
Some statutes apply to all employees whereas others are limited to ‘salaried’ employees. As will be demonstrated below, salaried and non-salaried employees can be distinguished broadly by those in higher skilled jobs who are paid on a monthly basis or and those in lower skilled jobs who are paid on an hourly basis. Dismissal of non-salaried employees is often governed by a collective trade union agreement. Statutes and collective trade union agreements do not, as a general rule, apply to directors.
Act on the Legal Relationship between Employers and Salaried Employees (Consolidation Act No 68 of January 21, 2005)16
The Act on the Legal Relationship between Employers and Salaried Employees (the ‘ASE’) contains certain minimum rights in favor of the employees. Such minimum rights include termination notices, severance payments, compensation for unfair dismissals, absence due to illness, regulation of and compensation for non-competition and non-solicitation clauses, etc. The act cannot be derogated from to the detriment of the employee.
Scope of application
For the purposes of this Act the term “salaried employees” shall mean
- shop assistants and office workers employed in buying and selling activities, in office work or equivalent warehouse operations,
- persons whose work takes the form of technical or clinical services (except handicraft work or factory work) and other assistents who carry out comparable work functions,
- persons whose work is wholly or mainly to manage or supervise the work of other persons on behalf of the employer,
- persons whose work is mainly of the type specified in clauses (a) and (b) above.
- This Act only applies in cases where the person concerned is employed by the employer for at least 15 hours a week on average and occupies a position in which he or she works under the instructions of the employer.
- The provisions of this Act shall not apply to civil servants or probationary civil servants in the state sector, the primary school system, the Danish National Church, or the local authorities, to salaried employees covered by the Seamen’s Act of 7 June 1952, or to apprentices covered by the Apprenticeship Act. Notwithstanding the above, the provisions laid down in Sections 10 to 14 shall apply to salaried employees covered by the Seamen’s Act.
A major flaw of the ASE is that it does not apply to managing directors or general managers. Thus, the terms of this category of employees are subject to individual or collective agreement only. The same goes for blue-collar workers.
If an employee is neither a salaried employee nor covered by a collective agreement, the employment will primarily be regulated by the individual contract agreed between the parties.
There is no statutory protection against dismissals. The grounds for dismissal may be established through collective bargaining. This does not result in a total freedom to terminate the contract: it must be understood in light of the existence of prohibited grounds and in the employer’s obligation to pay compensation in the event the dismissal is not found to be reasonably justified by the conduct of the employee or the circumstances of the enterprise.
In the General Agreement concluded between The Danish Confederation of Trade Unions and the Danish Employers’ Confederation17, there is a rule establishing that employers cannot make arbitrary dismissals and that the employee has the right to a written explanation of the grounds for the dismissal if he/she has been employed at the workplace for nine months.
- Employers shall exercise the managerial right in accordance with the provisions laid down in collective agreements and in cooperation with employees and their elected representatives, as provided for in agreements between the Danish Confederation of Trade Unions and the Danish Employers’ Confederation.
- Employees who have been employed specifically and unconditionally for piecework, cannot have their employment conditions altered unless the employer in question compensates the employees for any financial losses thereby incurred. Any disputes arising in relation to this shall be settled through the usual system of solving industrial disputes.
No arbitrary action shall take place in connection with dismissals of employees, and complaints of alleged unfair dismissals can therefore be dealt with according to the below-stated rules. The central organisations recommend that cases concerning alleged unfair dismissals be dealt with as speedily as possible by the parties concerned. In cases where claim is made to set aside a dismissal, the proceedings shall, as far as possible, be completed before the relevant employee’s term of notice expires.
- In the case of dismissal of an employee who has been employed in a company for at least nine continuous months, the employee concerned is entitled to request the reason for his dismissal in writing.
- If the employee claims that the dismissal is unfair and unwarranted by the situation of the employee and the company, a request may be made for the case to be settled locally between representatives of management and employees. The local negotiations shall be completed within two weeks of notice being given. In case the employer has given flagrantly incorrect information about the reason for the dismissal and this is of considerable importance to the case, the above notice shall be counted from the time that the employee was or should have been given the correct information. The local negotiations, however, shall be completed within three months of notice being given.
- In the case agreement is not reached, and the relevant trade union (or central management) requests that the matter be taken further, negotiations shall immediately be initiated between employee and employer organisation.
- If agreement is not reached, the relevant trade union (or central management) is entitled to submit a complaint to one of the central organisations’ permanent Tribunals. The complaint shall be submitted to the Tribunal and to the opposing organization within seven days of the conclusion of negotiations between employee and employer organisations. The Tribunal’s precise composition and method of operation shall be laid down in the Procedures for the Tribunal.
The Tribunal shall make a reasoned award. If the Tribunal finds that a dismissal is unfair, and unwarranted by the situation of the employee or the company, it may, after a claim to that effect, set aside the dismissal, unless there has been, or can be taken to be, a breakdown incompatibility between the employer and the employee, such as to preclude any further continuation of the employment relationship. If the Tribunal finds that the dismissal is unfair, but that the employment relationship should nevertheless be discontinued, or if a claim is made for compensation for unfair dismissal, cf. above, the Tribunal may decide that the company should pay compensation to the dismissed employee. The amount of compensation depends on the circumstances of the case and the seniority of the unfairly dismissed employee.
Compensation may not exceed 52 weeks’ pay, calculated on the basis of the average earnings during the preceding year.
- If the Tribunal is presented with cases where a claim is made that a dismissal is unfair, and the dismissed employee according to legislation has a different legal status than the one provided for in the General Agreement, the Tribunal shall, upon a claim from the plaintiff, base its decision on the relevant legislation.
This rule applies at all workplaces. Upon dismissal, the trade union may conduct litigation in the Dismissals Board on behalf of the employee. The employer must inform the employee of the name of the trade union that provides collective agreement cover for the workplace in question. If the workplace is not covered by an agreement, the employee can contact the LO-County, which will be able to refer the employee to his/her relevant local union branch. In addition to this, the national level trade unions can be of help.
The ASE contains provisions concerning the compensation for unfair dismissals:
Section 2 a
- If a salaried employee who has been continuously employed in the same enterprise for 12, 15 or 18 years is dismissed, the employer shall, on termination of the employment relationship, pay an amount to the salaried employee corresponding to one, two or three months’ salary respectively.
- The provision laid down in subsection (1) shall not apply if the salaried employee is entitled to old-age pension on termination of the employment relationship.
- Where on termination of the employment relationship the salaried employee receives an old-age pension from the employer and where the salaried employee has joined the pension scheme in question before attaining the age of 50, no severance pay shall be payable.
- The provision laid down in subsection (3) shall not apply if the question of reduction or forfeiture of the severance pay due to an old-age pension from the employer has been settled by collective agreement as of 1 July 1996.
- The provision laid down in subsection (1) shall apply correspondingly in the event of wrongful dismissal.
Section 2 b
- If the dismissal of a salaried employee who has been continuously employed in the enterprise in question for at least one year prior to the notice of termination may not be deemed to be reasonably justified by the conduct of the salaried employee or the circumstances of the enterprise, the employer must pay compensation. The amount of the compensation shall be determined in view of the salaried employee’s period of employment and any other circumstances of the case, but may not exceed the salaried employee’s pay for a period corresponding to half the period of notice to which the person concerned is entitled under section 2 (2) and (3). However, if at the time of notice of termination the salaried employee has reached the age of 30, the compensation may amount to up to three months’ salary.
- if at the time of notice of termination the salaried employee has been continuously employed in the enterprise in question for at least ten years, the compensation referred to in subsection (1) may amount to up to four months’ salary. After 15 years’ continuous employment in the enterprise, the compensation may amount to up to six months’ salary.
- The provisions laid down in subsections (1) and (2) shall apply correspondingly in the event of wrongful dismissal.
- Where the employer wrongfully refuses to accept the services of the salaried employee or wrongfully dismisses him, and where the salaried employee has at the time when the employment relationship is broken off a right to no more than three months’ notice under section 2, the employer shall be liable to pay compensation corresponding to the salary up to the date on which the employee could have been lawfully dismissed or, if he had already been dismissed, up to the expiry of the period of notice, provided that no higher amount is payable under general liability rules. This shall also apply where the salaried employee is employed for a fixed term, and three months or less remain of this employment.
- If at the time when the employer wrongfully broke off the employment relationship the salaried employee has a right to more than three months’ notice, the amount of the compensation shall be fixed under general liability rules. This shall also apply where the salaried employee is employed for a fixed term, and three months or more remain of this employment. However, the salaried employee shall, as a minimum, have a right to compensation corresponding to his salary up to the date of the termination of the employment relationship at three months’ notice in accordance with section 2.
- The provisions laid down in this section shall also apply where the salaried employee terminates the employment relationship due to a serious breach of contract by the employer.
Section 2 b is described as the primary statutory provision, in relation to Danish labor law protecting whistleblowers in the private sector. Unfair dismissal of a salaried employee may be subject to compensation for unfair dismissal in the amount of up to six months’ salary, provided that such an employee has more than one year of seniority. Compensation depends on age and seniority with the firm and is increasing in both. Typical compensation at 20 years tenure is 9 months. However, long-term employees receive an average of one months’ wage compensation upon dismissal.18
If a salaried employee does not have one year of seniority, and no collective agreement is applicable, this employee is not protected by the ASE, or any other laws, on unfair dismissal. If collective agreement is applicable, unfair dismissal compensation is limited to 52 weeks of pay for long service cases. Average is 10.5 weeks according to Danish Confederation of Trade Unions.
In overall terms, a dismissal has to be reasonable considering either the company’s or the employee’s condition. However, when deciding whether a dismissal is fair or not, it is always necessary to look at the merits of each individual case.
There is no provision concerning reinstatement in the ASE.
Reinstatements are mentioned in the General Agreement between The Danish Confederation of Trade Unions and the Danish Employers’ Confederation, Section 4 e:
If the Tribunal finds that a dismissal is unfair, and unwarranted by the situation of the employee or the company, it may, after a claim to that effect, set aside the dismissal, unless there has been, or can be taken to be, a breakdown incompatibility between the employer and the employee, such as to preclude any further continuation of the employment relationship.
In general, reinstatement orders are possible but rare.19
In Denmark statutory provisions concerning summary dismissal can be found in section 4 of the ASE:
If the salaried employee wrongfully fails to take up his duties or leaves his work, or if the employer terminates the employment relationship due to a serious breach of contract by the salaried employee, the employer shall have a right to compensation for any loss incurred by him as a result thereof. In the event of unlawful absence from work or desertion, the employer shall, as a minimum, have a right to compensation corresponding to half a month’s salary unless there are special circumstances.
Additional statutory provisions
Some additional laws may be relevant in connection to whistleblowers in the private sector in Denmark.
For example, the Marketing Practices Act, section 19 (Act No. 1389 of December 21, 2005)20, sets limits on freedom of expression in employment:
- An individual who is under contract of service to or in cooperation with a business or is carrying out an assignment on its behalf must not obtain or try to obtain knowledge or disposal of the trade secrets of the business in an improper manner.
- If the individual concerned has obtained knowledge or disposal of the trade secrets of the business in a lawful manner, he must not (unless authorised) pass on or make use of such secrets. This prohibition is valid for three years after the end of the contract of service, cooperation or assignment.
- The rules in subsections (1) and (2) apply in the same way to other persons who have lawful access to the business.
- A person who in the course of work or for another commercial purpose has been entrusted with technical drawings, specifications, formulae, models or the like may not make use of such material or put others in a position to do so without authorisation.
- Traders may not make use of a trade secret if knowledge or disposal of it has been obtained in conflict with the provisions referred to above.
In addition, the Working Environment Act21, section 28, contains a duty to inform authorities in certain situations:
- The employees shall cooperate to ensure that the working conditions are safe and without risks to health within their field of activity and shall check the effectiveness of measures taken to promote health and safety.
- If the employees become aware of errors or deficiencies which may adversely affect safety or health and which they cannot remedy themselves, they shall inform a member of the health and safety organisation, the supervisor, or the employer.
- Any person who has to remove a safety device temporarily to perform a job, such as repair work or installation, shall ensure that such device is replaced immediately after the performance of the job or that an equally safe protective measure is taken.
III. Journalistic context
An important distinction according to Danish law is whether a journalist works for a media which falls within the scope of the Media Liability Act22.
The Act shall apply to the following mass media:
- Domestic periodical publications, including images and other representations that are printed or in any other manner duplicated.
- Sound and image programmes transmitted by Danmarks Radio (the Danish Broadcasting Corporation), TV/2 DANMARK A/S, TV 2’s regional enterprises and any other undertakings authorised or registered to carry on radio or television activities.
- Texts, images and sound programmes that are periodically imparted to the public, provided that they have the form of news presentation which can be equated with the kind of presentation to which nos. 1) and 2) of this section extends, cf. however section 8(1) of this Act.
Journalists covered by this act have special privileges such as a detailed exemption from giving evidence in court and these journalists can avoid civil and penal liability if their name does not appear in the media. On the other hand, journalists working for media under the Media Liability Act have an obligation to act in accordance with ethics of journalism23:
Section 34 (1)
The content and conduct of the mass media shall be in conformity with sound press ethics.
There are no statutory rules protecting the independence of the journalists. The guiding rules for the ethics of journalism contain the following provision:
Breach of sound press ethics includes the withholding of rightful publication of information of essential importance to the public and compliance with outsiders’ demands for influence over the content of the mass media, if such compliance may raise doubt as to the freedom and independence of the mass media. Furthermore, a breach of sound press ethics exists if tasks that are in conflict with the present press ethical rules are imposed on a journalist. Journalists should not have tasks imposed on them that are contrary to their conscience or convictions.
These rules are reasonably clear, but not binding – only guiding.
Breach of confidentiality is a criminal offence according to the Danish Penal Code, sections 152-152 f. However, it is not unlawful for journalists to publish information obtained by a breach of confidentiality, unless it concerns a person’s strictly private life or if the information is confidential because of its importance to the safety of the state or the protection of state defence.24
In one case25, a member of the Regional Council forwarded information to a journalist regarding public expenses in relation to placing of a young person in foster care. The journalist used the information for public discussion in relation to the expenses in such cases, but did not reveal anything personal. The member of the Regional Council was sentenced, but the journalist was not even prosecuted.
If there is a breach of confidentiality, section 152 e of the Penal Code provides two defences:
- The disclosing person is under an obligation to forward the information.
- The disclosing person acts in order to lawfully safeguard public interests or the interest of himself/herself or other persons.
The second defence is interesting for journalists. Following the Grevil case which has been discussed above, the journalists and the editor that published Grevil’s information were accused of unlawful disclosure of information.26
The three Defendants (two journalists and one editor) admitted during the trial that they had received the threat assessments from Frank Grevil, and that they, as writers and the editor-in-chief with responsibility under press law respectively, used information from the documents in connection with articles published in Berlingske Tidende in February and March 2004 as specified in the indictment. The Defendants further admitted that they had been aware that the information from the Danish Defence Intelligence Service was secret and confidential.
On the evidence, including the testimony by Jørn Olesen, the head of the Danish Defence Intelligence Service, the Court considered that the Danish Defence Intelligence Service was acting in the interests of state security and the defence of the realm when it insisted that the threat assessments be kept secret and was therefore acting in the essential public interest, cf. section 27 of the Danish Public Administration Act.
On the evidence the Court further considered that the essential public interest also dictated in early 2004 that outsiders should not have sight of the threat assessments in question and so, among other things, have an opportunity to assess the Danish Defence Intelligence Service’s working methods and level of knowledge. At the time the articles were published in Berlingske Tidende the Danish Defence Intelligence Service was therefore still entitled to insist that the threat assessments be kept secret, regardless of the fact that similar information on Iraq’s weapons of mass destruction had appeared in publicly accessible reports.
On these points the Court therefore reached the same conclusion as the Eastern Division of the Danish High Court in the trial of Frank Grevil.
The question of whether the Defendants could be punished for offences under section 152 d (3) of the Danish Criminal Code depended on whether their disclosure of confidential information could be characterised as “unauthorised”, or whether instead it was proved that the Defendants “acted legitimately in the obvious public interest or in the interests of themselves or others”, cf. section 152 e (2) of the Danish Criminal Code.
The said provisions of the Danish Criminal Code had to be read in the light of the freedom of expression provision contained in article 10 of the European Convention on Human Rights and case law from the European Court of Human rights relating to that provision, as the defence put forward was that it is a legitimate part of their work as journalists and an editor on a daily newspaper to pass on information of essential social interest to the public.
According to the testimony of Jørn Olesen, it was not publication of the content of the threat assessments but publication of names of specific foreign partners and the fact that there had been a leak at all that represented a very serious risk to the Danish Defence Intelligence Service’s chances of receiving information from those partners. It also appeared from his testimony that it was not known whether the leak has had a concrete negative impact on the relationship with the partners, but that the benchmarking analysis of the Danish Defence Intelligence Service from 2006 made no mention of the matter.
Several witnesses, including former Danish Foreign Ministers Niels Helveg Petersen and Mogens Lykketoft and university researchers Lars Erslev Andersen and Ole Wæver, confirmed the defendants’ evidence that, at the time the articles appeared in Berlingske Tidende in February and March 2004, there was considerable public interest in knowing the basis for the political decision taken in March 2003 on Denmark’s involvement in the military action in Iraq, and that the question as to whether Iraq might possess weapons of mass destruction was an important part of such concerns. In the opinion of the witnesses, reproducing the information from the Danish Defence Intelligence Service was of material importance in that debate and in understanding the role of the Intelligence Service, with the articles also contributing to there subsequently being greater openness surrounding the affairs of the Intelligence Service. As the witnesses see it, the articles may influence the basis on which decisions are made in similar situations in the future.
In the opinion of the Court, consideration of the conflicting essential interests in the case, lead to the conclusion that such importance must be attached to the considerable public interest surrounding the decision to take part in the war in 2003, compared with the risk that the operations of the Intelligence Service would suffer, that it considered the Defendants to have acted legitimately in the obvious public interest when they chose to disclose the confidential information to the public.
On this basis the Defendants were acquitted.
In Denmark the protection of journalistic sources is qualified in application of Section 172 (5) of the Administration of Justice Act. A journalist may (only) be compelled to reveal his sources if there are other imperative or important interests, such as the prevention of major crimes, that weigh more haevily than the interest of the mass media to have their sources protected.
One case concerned a Danish journalist, Stig Matthiesen, who works for the daily newspaper Jyllands-Posten, and who had been investigating and circulating in extreme Muslim and Jewish organisations in Denmark. In the course of his journalistic activities of information gathering the journalist came upon rumours of an alleged list made by a Muslim organisation on prominent Jewish persons in Denmark who supposedly were targets for liquidation.
The police had started wiretapping Matthiesen’s private telephone, on the basis of a court order. During this wiretapping, conversations had been heard between the journalist and his editor. In order to have further information about the sources of Matthiesen, he was requested by the police to reveal the identity of his sources. This request was supported by a court order. Matthiesen however refused to reveal any information that could lead to the identification of his sources and took the question to the High Court. The Eastern High Court (Copenhagen), in a judgment of 12 September 200227 overruled the lower court’s decision and said that the police had not substantiated that it was crucial for the continuing police investigation that the journalist was forced to reveal the identity of his sources in court.
Few months before, on 2 April 2002, the Western High Court (Viborg), had overruled an order for disclosure of journalistic sources. The case dealt with a politician who was under a specific suspicion for breaching confidence, leaking information to the media. In the course of the procedure an action was started against a journalist, Birgit Rostrup, who was ordered to reveal some documents that she may have received from the politician28. That order was overruled however by the High Court, explicitly referring in its decision to the role of the media as a public watchdog in a democratic society, to the applicability of Article 10 of the Convention and the case law of the European Court.
Regarding source protection in cases of breach of confidentiality, a court can only require journalists to give evidence if the purpose is private, e.g., the person who breaches confidentiality passes on the information in order to be paid, spreads rumours about a colleague, etc. In the case UfR 2002.1580V, mentioned above, the journalist was required by the District Court to give evidence as to who had passed on confidential information about the expenses in relation to youths in foster care. However, as the issue obviously was of public interest, the High Court exempted the journalist from giving evidence.
IV. Case Law
The Labor Courts have jurisdiction over cases involving workers covered by a collective agreement whereas ordinary Courts have jurisdiction over dismissal disputes involving those not covered by a collective agreement. In addition, special dismissal bodies have been set up by social partners for unfair dismissal cases for parties to collective agreements. Their decision can be appealed to ordinary courts.
Only a few Danish cases have dealt specifically with employees reporting illegal activities. These have been mentioned above.
V. Data Protection Agency (DPA)
In Denmark, the national DPA has issued a set of general non-binding guidelines regarding the notification of whistleblowing systems (the ‘Guidelines’).29 While the purpose of the document is to instruct on how the notification form should be filled, it also contains useful information on what the DPA’s approach to whistleblowing hotlines is.30
As part of the notification procedure, the data controller must provide a description of the purposes for which the whistleblower system is to be used. This description should be fairly short and may be kept in general terms. Following a general statement, the applicant is required to give a more detailed account of the design of the whistleblowing system as such, including among other thing;
- how reports can be submitted;
- which persons will have access to the reports;
- the type of actions that a report may warrant;
- whether the system allows for anonymous reports;
- how further communication between the persons responsible for reviewing reports and the whistleblower may be established;
- how the rights of the data subjects are complied with; and
- how the employees and others are provided information about the whistleblowing system.
The data controller is thus required to provide an in-depth description of the system’s set-up and the processing involved, enabling the DPA to ascertain whether the system complies with all applicable legal requirements.31 The Guidelines emphasize that a whistleblowing system must always be an alternative voluntary reporting mechanism for employees. Therefore, the normal – and according to the DPA, preferred – channels of communication within the company must always be available to the employees, notwithstanding the existence of the whistleblowing system.
As it is an inherent feature of a whistleblowing system to capture personal data of a sensitive nature, the Guidelines specify the categories of sensitive data that may be processed in connection herewith. Sensitive personal data such as data regarding racial or etnic origin, political opinions, religious or philosophical beliefs, trade-union membership, and personal data concerning health or sexual orientation, are not to be processed as part of a whistleblowing system, nor data concerning social problems. Following this, sensitive personal data that may be processed as part of the system includes personal data regarding criminal offences and purely private matters.
The Guidelines state that the system should only permit the reporting of wrong-doing involving a certain level of seriousness, which according to the DPA may include alleged grave offences or improprieties and acts that can potentially impact the organization as a whole or could be of critical importance to an individual’s life or health. This may include, for example, alleged financial crimes, including bribery, fraud, forgery, and the like, including any other criminal violations. Other examples of permittable reportable subject matter listed in the Guidelines are pollution, severe violations of occupational safety, and grave actions directed at an employee, such as violence or sexual assault. The Guidelines do not permit reporting of difficulties in cooperation, incompetence, absenteeism, and violation of internal company guidelines with respect to matters such as the consumtion of alcohol, smoking, use of email and the Internet, and the like. Such situations are to be reported through normal channels of communication.
The Guidelines do not require that the applicant separate out different categories of employees with respect to individuals covered by, and subject to reports under, the whistleblowing system. The applicant may for example refer to ‘all employees at XX company’. The system may not allow for reports concerning individuals without any association to the company. Conversely, the DPA accepts reports regarding the company’s board members, accountants, lawyers, suppliers, etc. The DPA generally also accepts that all employees are entitled to report and therefore blow the whistle. Persons who are not employees but who are associated with the company, for example board members, accountants, lawyers, suppliers, customers etc, may also be allowed to submit reports. However, if the system allows for such ‘external’ reporting, the DPA states that it is necessary to screen all reports in order to ensure that they are submitted by individuals who are in fact associated to the company. The DPA recommends that companies encourage non-employees to identify themselves in connection with submissions.
In general, the DPA does allow anonymous reporting. Furthermore, and in the case of identified reporters, it is always a requirement that the system ensures full confidentiality.
- The regulation of the Danish labor market is very limited as the social partners agree most rules.
- No statutory protection against dismissals.
- The ASE does not apply to managing directors or general managers. Thus, the terms of this category of employees are subject to individual or collective agreement only.
- If a salaried employee does not have one year of seniority and no collective agreement is applicable, the employee is not protected by the ASE, or any other laws, on unfair dismissal.
- No statutory provision concerning reinstatement.
- Small amount of possible damages.
- No statutory rules protecting the independence of journalists.
5 General information gathered from the official brochure “Employment in the Danish State Sector”, Moderniseringsstyrelsen, November 2011. Retrieved at: http://perst.dk/~/media/Publications/2011/Employment%20in%20the%20Danish%20State%20Sector/Employment%20in%20the%20Danish%20State%20Sector%20-%20slutversion.ashx.
7 A copy in English may be found here: http://perst.dk/~/media/Publications/2008/Code%20of%20Conduct%20in%20the%20Public%20Sector%20-%20in%20brief/Code%20of%20conduct-pdf.ashx.
8 It may be of interest that this is the result of a recommendation made by GRECO (Group of States against Corruption – Council of Europé) due to a specific concern for the protection of whistleblowers in the public sector.
See: http://www.coe.int/t/dghl/monitoring/greco/evaluations/round1/GrecoEval1(2002)6_Denmark_EN.pdf and the latest Compliance Report: http://www.coe.int/t/dghl/monitoring/greco/evaluations/round2/GrecoRC2(2007)2_Denmark_EN.pdf).
10 No English translation available. Have contacted several Ministries in Denmark (Ministry of Justice, Agency for the Modernisation of Public Administration, Ministry of Employment), as well as two friends working at law firms, without luck. A link to the Danish version: https://www.retsinformation.dk/Forms/R0710.aspx?id=138671.
11 No full translation available. Extracts of the law may be found here: http://perst.dk/Publications/2005/Employment%20in%20the%20Danish%20State%20Sector/Annexes.aspx.
15 The Danish labour market is characterised by a high unionisation rate. Around 82 per cent of Danish employees are members of a trade union. See The Danish Confederation of Trade Unions’ website: www.lo.dk.
16 http://uk.bm.dk/Legislations/~/media/BEM/Files/English/Acts/Consolidation%20Act%20on%20the%20Legal%20Relationship%20between%20Employers%20and%20Salaried%20Employees.ashx. This act is also known as the White-Collar Workers Act.
17 The General Agreement may be found here: http://www.da.dk/bilag/General%20Agreement_net.pdf.
18 Statistics found on The Danish Confederation of Trade Unions’ website: www.lo.dk.
19 See the OECD Table 2008 Denmark: http://www.oecd.org/dataoecd/26/38/42747516.pdf.
31 The processing of personal data by private companies and public institutions is subject to the Danish Act on Processing of Personal Data (Act No. 429 of 31 May 2000 with subsequent amendments) implementing EU Directive 95/46/EC on the protection of individuals with regard to the processing of personal data and on the free movement of such data.