Right
of reply is the right to defend oneself against public criticism in the same
media in which the criticism was aired. Article 19, an international
organisation for freedom of expression, elaborates:
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’.[i]
The
idea of creating legally enforceable right of reply or correction has never
found much favour with freedom of expression campaigners. They fear that it
might stifle free and robust expression, and violate the prerogative of editors
to decide what and what not to publish - clearly something that is particularly
needed in the context of elections. However, both international advisory bodies
and national courts have sometimes favoured such a mechanism, especially in
instances where the criticism in question originates from government-controlled
media, to which the opposition may have limited access.
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.[ii]
The European human rights
system, too, recognises the virtue of the right of reply. In a case in 1989,
the European Commission of Human Rights stated “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.[iii]
In
some instances, right of reply is applied more forcefully to public media. The
High Court and Court of Appeal in Belize found in favour of a right of reply in
a case with a particular relevance to elections. The Belize Broadcasting
Authority (BBA) had refused permission to a senior opposition politician and
the director of a television station to broadcast a series of programmes
replying to government statements on the economy. The High Court ruled that the
BBA had acted arbitrarily, stating:
Today television is the most powerful medium for
communications, ideas and disseminating information. The enjoyment of freedom
of expression therefore includes freedom to use such a medium.[iv]
The
Court of Appeal supported the High Court's ruling and held that the BBA's
refusal to broadcast the programmes violated the applicants' constitutional
rights to both freedom of expression and protection from discrimination.
Political parties must be given the opportunity to reply on television to
statements made by the government that "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.[v]
[ii] “Article 14, American Convention on Human Rights”, Inter-American Commission on Human Rights, 22 November 1969, http://www.cidh.oas.org/basicos/english/basic3.american%20convention.htm
[iv] Belize
Broadcasting Authority v. Courtenay and Hoare, Court of Appeal, 20 June 1986;
(1988) LRC (Const.) 276; 13 Common L Bull (1987), 1238.
[v] Ibid, citing
Halsbury's Laws of England (4th edn, Vol. 8, para. 1134)
