In this feature we revisit some older posts which are still of current interest. In this post from May 2010 we consider the question as to whether Article 10 of the European Convention requires the provision of an enforecable right to reply.

The “right of reply” has been under discussion in the freedom of expression context for a long time. 

Such a right would mean that if inaccurate information is published about someone in the media then, in certain conditions, that person has the right to have an answer published in the same medium where the original statements were published.   This is seen by some commentators as way of improving public access to information and of ensuring the plurality of opinions published in the press.

As long ago as 1974 the Committee of Ministers of the Council of Europe adopted a Resolution on the Right of Reply (Res (74) 26).  It was recommended that “as a minimum,” that

In relation to information concerning individuals published in any medium, the individual concerned shall have an effective possibility for the correction, without undue delay, of incorrect facts relating to him which he has a justified interest in having corrected, such corrections being given, as far as possible, the same prominence as the original publication.

An Appendix to this Resolution sets out “Minimum Rules Regarding the Right of Reply” which include the following:

1. Any natural and legal person, as well as other bodies, irrespective of nationality or residence, mentioned in a newspaper, a periodical, a radio or television broadcast, or in any other medium of a periodical nature, regarding whom or which facts have been made accessible to the public which he claims to be inaccurate, may exercise the right of reply in order to correct the facts concerning that person or body.

2. At the request of the person concerned, the medium in question shall be obliged to make public the reply which the person concerned has sent in.

3. By way of exception the national law may provide that the publication of the reply may be refused by the medium 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.

4. Publication of the reply must be without undue delay and must be given, as far as possible, the same prominence as was given to the information containing the facts claimed to be inaccurate.

The rules go on to provide for the establishment of a tribunal to adjudicate in in the event of disputes and having power to order the publication of a reply.

The point has been taken up on a number of subsequent occasions by other Council of Europe bodies.  For example, in Recommendation 1215 (1993) on the “Ethics of Journalism”, the Parliamentary Assembly of the Council of Europe recommended that the Committee of Ministers

“ask governments of member states to see that legislation guarantees effectively the organisation of the public media in such a way as to ensure neutrality of information, plurality of opinions and gender balance, as well as a comparable right of reply to any individual citizen who has been the subject of an allegation”

This has not only been something considered by the Council of Europe.   Article 23 of the European Council’s “Television without Frontiers Directive” (89/552/EEC) recommended that

“A right of reply or equivalent remedies shall exist in relation to all broadcasters under the jurisdiction of a Member State”

In 2004, the Council of the European Union put forward a proposal for a recommendation of the European Parliament and the Council on the right of reply.  The Department of Culture Media and Sport conducted a consultation, inter alia, on the question of a legally enforceable right of reply.  In an October 2004 submission the Mediawise trust strongly supported the recommendation noting that

“An automatic ‘right of reply’ is not a recipe for removing control from the editor; it is a very practical way of demonstrating a commitment to accuracy. Those who argue that newspapers would then be ‘full of corrections’ ignore the fact that if that were to be the case it would only be as a result of them having first been unfair or ‘full of errors’” [para 2.05].

In December 2006 European Parliament and of the Council of the European Union adopted the recommendation (see Recommendation 2006/952/EC).  This included a recommendatopm that the right of reply or equivalent remedies should apply to on-line media.  This recommendation is not legally binding on Member States.

Some of the background can be found in an article entitled “Right of Reply: A Comparative Approach“  by Andras Koltay, who also discusses the position in the United States and Canada.

The question of the relationship between the right of reply and Article 10 has been considered by the Court of Human Rights in two some interesting but little noticed cases.   In Melnychuk v Ukraine Decision of 5 July 2005 the applicant had sought the publication of a reply to a critical book review in a local newspaper.  Domestic legislation provided for a right of reply however the newspaper had refused to published the reply on the grounds that it was obscene and abusive.   The Court of Human Rights note that

” as a general principle, newspapers and other privately owned media must be free to exercise editorial discretion in deciding whether to publish articles, comments and letters submitted by private individuals. However, there may be exceptional circumstances in which a newspaper may legitimately be required to publish, for example, a retraction, an apology or a judgment in a defamation case. Consequently, there will be situations when a positive obligation may arise for the State to ensure an individual’s freedom of expression in such media  …   The Court considers that in the present case a positive obligation arose for the State to protect the applicant’s right to freedom of expression by ensuring, firstly, that he had a reasonable opportunity to exercise his right of reply by submitting a response to the newspaper for publication and, secondly, that he had an opportunity to contest the newspaper’s refusal”

However, there was no breach of Article 10 because, in the circumstances of the case, a fair balance had been struck between the competing interests.  Nevertheless, the case recognises the existence of an Article 10 positive obligation to provide a right to reply.  This was confirmed in the subsequent case of Vitrenko v Ukraine Decision of 15 December 2008 in which it was said that

“the Court bears in mind the positive obligation on the State to ensure that persons subjected to defamation have a reasonable opportunity to exercise their right to reply by submitting a response to defamatory information in the same manner as it was disseminated”

As a result, it is arguable that Article 10 does require the provision of a “right of reply” in the media.  The existence of such a positive obligation would be consistent with the policy views expressed by the Committee of Ministers and the Parliamentary Assembly.    It is arguable that such a right could be enforced directly against a public body in the United Kingdom – as such a body is obliged, by section 6 of the Human Rights Act 1998, to act consistently with Convention Rights.

Clause 2 of the Press Complaints Commission Code contains a “right to reply” in the following terms

“A fair opportunity for reply to inaccuracies must be given when reasonably called for”

It arguable that the PCC is, for the purposes of the Human Rights Act 1998, a public body.  This gives rise to the interesting possibility that a person might seek to an order that the PCC require a newspaper to publish a reply in accordance with the provision in Clause 2.