Right of reply
The opportunity to publish corrections or replies to any mistakes or false accusations in the media is vital to satisfy claimants and avoid expensive court cases. ARTICLE 19 defends the right of reply and promotes it where appropriate as a fair solution to claims of defamation.
In several countries, persons who believe they have been portrayed in a false light by a media report are entitled by law to have a reply published by the same outlet.
There are two basic categories of the right to reply. The first, which could more exactly be called a ‘right of correction’, is limited to a right to point out erroneous information; the media outlet’s editors are required to correct the mistake, but may do so in their own words.
The second is a right for the aggrieved individual to demand newspaper space or broadcast time from the media outlet in order to ‘set the record straight’. This second manifestation of the right of reply clearly constitutes a far greater interference with the ‘right not to speak’.
Should there be a general right of reply?
The right of reply is a highly contentious area of media law. It is not disputed that the right represents an interference with freedom of expression. However, some see it as justifiable measure which in fact improves the free flow of information, by ensuring that the public will hear both sides of the story and by preventing costly defamation suits which drain the resources of media outlets. Others regard it as an impermissible restriction on editorial freedom.
The American Convention on Human Rights requires its state parties to introduce either a right of reply or a right of correction. Article 14 states:
1. Anyone injured by inaccurate or offensive statements or ideas disseminated to the public in general by a legally regulated medium of communication has the right to reply or to make a correction using the same communications outlet, under such conditions as the law may establish.
2. The correction or reply shall not in any case remit other legal liabilities that may have been incurred.
The European human rights system, too, recognises the virtue of the right of reply. In a case before it in 1989, the ECmHR stated that “in a democratic society, the right of reply constitutes a guarantee of the pluralism of information which must be respected.”
The UN Special Rapporteur on Freedom of Opinion and Expression has cautioned against a government-mandated right of reply, and stated that the right should in any case be limited to allegedly false facts:
The Special Rapporteur is of the view that if a right of reply system is to exist, it should ideally be part of the industry’s self-regulated system, and in any case can only feasibly apply to facts and not to opinions.
At the domestic level, the US Supreme Court ruled that a mandatory right to reply with regard to the print media is unconstitutional, because it presents an unwarranted interference in editorial matters:
A newspaper is more than a passive receptacle or conduit for news, comment, and advertising. The choice of material to go into a newspaper, and the decisions made as to limitations on the size and content of the paper, and treatment of public issues and public officials - whether fair or unfair - constitute the exercise of editorial control and judgment.
In an attempt to guide its member states through this minefield, the CoE’s Committee of Ministers has adopted a Resolution on the right of reply. It recommends that the right should be recognised, but suggests that exceptions be made in the following cases:
i. if the request for publication of the reply is not addressed to the medium within a reasonably short time;
ii. if the length of the reply exceeds what is necessary to correct the information containing the facts claimed to be inaccurate;
iii. if the reply is not limited to a correction of the facts challenged;
iv. if it constitutes a punishable offence;
v. if it is considered contrary to the legally protected interests of a third party;
vi. if the individual concerned cannot show the existence of a legitimate interest.
In a later Recommendation, the Committee of Ministers suggested applying similar principles to Internet-based news services, and recognised two additional permissible exceptions to the right of reply in this context:
- if the reply is in a language different from that in which the contested information was made public;
- if the contested information is a part of a truthful report on public sessions of the public authorities or the courts.
Right of reply in relation to publicly owned media
Publicly owned media, which are financed with taxpayers’ money, should not be an instrument of one political bloc but should be independent and represent all different views in society fairly.
But, in practice, even in well-established democracies the government may succeed in influencing the coverage of publicly owned media in its favour. The right of reply guarantees that opposition parties are not drowned out and are able to represent themselves to voters in their own words.
A number of national courts have enforced the right of reply as a means of ensuring that the public has access to opposition points of view.
In India, a public sector undertaking, the Life Insurance Corporation of India (LIC), republished an article in its house journal that was favourable to itself, but refused to republish a rejoinder that had accompanied the original article. The Supreme Court held that LIC’s refusal was unlawful on the ground that, as an instrument of government, LIC had a duty of fairness to its readers. Moreover, “fairness demanded that both viewpoints were placed before its readers, however limited be their number, to enable them to draw their own conclusions.”
Similarly, the Court of Appeal in Belize ordered the national television station to broadcast a series of programmes by a senior opposition politician replying to government statements on the economy. The Court held that political parties must be given the opportunity to reply on television to statements made by the government which “provide information or explanation of events of prime national or international importance or ... seek the co-operation of the public in connection with such events.” Only where there was a “general consensus of opinion” would the opposition not have a right of reply.
The US Supreme Court and the High Court of Trinidad and Tobago have also upheld as constitutional a ‘political’ right to reply through the broadcast media.