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ARTICLE 19 submission to Council of Europe on "right of reply" in new media environment

28 March 2012

Press release - Europe, 22 August 2003

Today, ARTICLE 19 published its response to a draft Recommendation on the right of reply in the new media environment, as released for comment by the Council of Europe's Media Division.

The draft Recommendation proposes that all on-line publications which are "frequently updated" and contain "edited information of public interest" should grant an enforceable right of reply to individuals whose rights have been affected by inaccurate factual statements. The only exception it allows is for websites "operated by individuals" (in the section entitled 'Definitions').

We are concerned that this proposal fails to recognise the distinct characteristics of the Internet as opposed to the 'traditional' print and broadcast media, in relation to whom the Council of Europe first proposed a right of reply in 1974. The draft Recommendation treats all websites that fall within its broad ambit in an analogous fashion to the traditional mass media. This is a significant oversimplification of the enormous variety of content found on the Internet, with the result that an enormous range of information would be subject to the right of reply. As envisaged by the current draft, the scope of the right to reply with regard to Internet publications would be analogous to granting a right of reply in relation to every published book, and even to pamphlets.

Under the proposal, websites such as those run by human rights organisations, a national health service or political parties - which are all frequently updated, edited and contain information on matters of public interest - would all be treated as mass media outlets and be obliged to grant a right of reply to those who allege that their rights have been infringed by incorrect factual statements. For example, the administrator of the website of a human rights organisation would have to grant space to the spokesperson of a military dictatorship to respond to alleged factual inaccuracies that may be impossible to verify. Or a government representative would be able to post a mandatory reply on the site of a political opposition party, to refute allegations of corruption.

A 'right of reply' thus formulated will constitute an unacceptable restriction on editorial freedom and would be open to wide abuse. Governments or other powerful figures in society would be able to crack down on critical websites by launching abusive requests, using up the limited resources of such organisations. The draft Recommendation proposes that a refusal to comply could be contested in court, which means that a refusal to comply might lead to drastic measures, including the website being ordered to shut down.

We do not believe that an enforceable right of reply can be justified as 'necessary' in the sense of Article 10(2) of the European Convention on Human Rights. There is no 'pressing social need' that would legitimise it, just as it has never been considered necessary or appropriate to impose recognition of such a right in relation to books or pamphlets.

ARTICLE 19 has urged the Council of Europe to reconsider this proposal, and that any right of reply with regard to internet publications be voluntary and limited to actual mass media organisations, consistent with the scope of the right of reply in relation to the print sector.

The full ARTICLE 19 Submission can be found at: http://www.article19.org/docimages/1656.doc

The Council of Europe proposal can be found at: http://www.coe.int/T/E/Human_Rights/media/

For further information, contact ARTICLE 19, Law Programme, 33 Islington High St., London N19LH, U.K. tel: +44 207 278 9292, fax: +44 207 713 1356, e-mail: law@article19.org, Internet: http://www.article19.org

The information contained in this press release is the sole responsibility of ARTICLE 19. In citing this material for broadcast or publication, please
credit ARTICLE 19.
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