Parliamentary immunity and defamation

Case no. BS-28731/2020-HJR
Judgment delivered on 27 May 2021

Sherin Khankan
vs.
Naser Khader

In February 2017, Exitcirklen (the Exit Circle), headed by Sherin Khankan, applied for a grant of DKK 680,000 from the public pool of funds earmarked for disadvantaged groups for the NGO’s work with honour-related conflicts. This lead, among others, Naser Khader, member of the Danish Parliament and spokesman on immigration and integration policy for the Conservative People’s Party, to call into question whether Exitcirklen should be awarded such funds in an email of 13 September 2017 to the spokespersons for the Socialist People’s Party, the Danish Social Liberal Party and the Alternative. In the mail, he wrote, among other things, that Sherin Khankan was known for not distancing herself from Sharia law and that she had defended the tradition of punishing adultery with lashes.

In this connection, Naser Khader made a number of other statements about Sherin Khankan in, among other places, Facebook posts of 1 October and 1 December 2017. The case before the Supreme Court concerned whether Naser Khader had committed an offence under the rules on defamation of the Danish Penal Code in force at the time.

The email of 13 September 2017 was sent as part of the parliamentary decision-making process for the allocation of funds from the pool. The statements made by, among others, Naser Khader in the email should therefore be regarded as having been made in Parliament, and the Parliament had not given its consent to prosecution. Under Section 57(2) of the Danish Constitutional Act, this meant that he could not be held responsible for the statements. Naser Khader’s statements in the Facebook post of 1 October 20017: “... I remain sceptical of Khankan and her views on lashes as punishment for adultery” had to be regarded as confirmation of the statements made in the email of 13 September 2017 that “Sherin Khankan defended the tradition of punishing adultery with lashes in 2011”. Accordingly, the Supreme Court agreed, considering the protection afforded to him by the Constitutional Act, that Naser Khader could not be held responsible for this Facebook post. However, the correlation between Naser Khader’s Facebook post of 1 December 2017 and the email of 13 September 2017 was not such that the Constitutional Act protected him from being held responsible for its content.

Consequently, the case concerned the following statements in Naser Khader’s Facebook post of 1 December 2017: “… [Sherin Khankan’s] islamist record…”, “… Khankan’s past as a radical islamist …” and “… Khankan’s black islamist past…”. In determining how these statements should be understood, the Supreme Court considered how a normal reader would perceive them based on their content and context.

There was no fixed and unambiguous definition of the expression “islamist”, but the Supreme Court found that a normal reader would be assumed to understand the expression as meaning a person who believes that the organisation of society should be founded on Islam. Naser Khader had also used the expressions “radical” and “black” to describe Sherin Khankan as an islamist, and these expressions must naturally be understood as meaning that Sherin Khankan subscribed to more extreme forms of Islamism. In these circumstances, the Supreme Court agreed that these amounted to defamatory allegations against Sherin Khankan, cf. Section 267 of the Penal Code.

Naser Khader’s statements amounted to value judgements within the meaning of the European Convention on Human Rights. This meant that he could not be called on to justify his statements, but a sufficient factual basis in support of the statements was required.

In assessing what would constitute a sufficient factual basis, regard should be had to the fact that this case arose from the question of whether Exitcirklen should be awarded public financial support for its work on the prevention of honour-related conflicts. Consequently, Naser Khader’s statements should be regarded as having been made in the course of a public debate on a subject of major importance to society, and, as a member of the Danish Parliament, Naser Khader had an extended form of freedom of expression concerning such subjects. As for Sherin Khankan, she should tolerate a certain amount of criticism in her public role as an imam, author and debater etc. These facts spoke heavily in favour of regarding Naser Khader’s statements as being justified in terms of his freedom of expression, for which reason the Supreme Court held that the requirements for the factual basis should not be unduly strict.

Based on an overall assessment, the Supreme Court agreed that Naser Khader had a sufficient factual basis to support his statements. The Supreme Court gave importance to the fact that Sherin Khankan’s general and in part changing statements on the relationship between Islam and politics could give rise to some uncertainty as to which role she believed that Islam should play in society. In addition, Sherin Khankan’s explanations on the religious basis for punishing adultery with lashes could cause confusion as to her own position on this subject. And her statements on Hizb-ut-Tahrir could give rise to uncertainty as to her views on Hizb-ut-Tahrir’s role in the democratic Danish society.

The Supreme Court, thus, reached the same conclusion as the High Court. The Supreme Court also remarked that it had not taken a position on Sherin Khankan’s work and views as head of Exitcirklen, but had merely considered whether Naser Khader had committed a punishable act under the Penal Code in making the statements.