A right of reply is not popular with the media, but it has found increasing favour with tribunals and other standard-setting bodies internationally. Journalists may have to accept that this may be the least-worst option. The alternative to balancing views may be to be held responsible for endorsing the opinions of one candidate or another.
The best way of avoiding an enforced right of reply is clearly to ensure balance in coverage. Even the generally unregulated US media have been obliged to comply with a Fairness Doctrine in election reporting that ensures that all the main parties get a say in news and current affairs programmes. Broadcasting stations are obliged to offer "reasonable opportunity for the discussion of conflicting views". [1] The wording is important: "reasonable" rather than equal. Coverage is not measured with a stopwatch. It is simply that all sides of the debate get heard.
Sometimes this general approach of fairness is not adequate. The personal attack rule under the US Communication Act requires that if an attack is made on the personal qualities or character of an individual, then that person should be notified and given an opportunity to respond.[2]
In the South African election of 1994 there was a provision, slightly broader than the US personal attack rule, but based on the same principle. This is a common rule in election laws and regulations and provides a sensible opportunity to achieve balanced debate. It stated that if a criticism were levelled against a political party without that party being given the opportunity to respond at the time, or without its view being reflected, then the broadcasting licensee was obliged to give the party a reasonable opportunity to respond to the criticism.
If within 48 hours of the beginning of the vote a broadcaster intended to broadcast a programme in which a particular political party was criticized, then the broadcasting licensee should give the party the opportunity to respond within the programme, or as soon as possible afterwards. These provisions only applied to coverage under the editorial control of the broadcaster and not to party election broadcasts or political advertisements. [3]
Brazil has a right of reply provision that applies specifically to knowingly making false statements in the course of direct access broadcasts. In this case the offended party can appeal to a judge. If the application is successful the complainant wins an amount of free time for rebutting the false statement that is then subtracted from the amount of free time granted to the offender.
[1] Robert M. Entman, "The Media and U.S. Elections: Public Policy and Journalistic Practice", in Yasha Lange and Andrew Palmer (eds), Media and Elections: a Handbook, European Institute for the Media, Dusseldorf, 1995.
[2] Ibid.
[3] Article 21, Independent Media Commission Act, 1994.
