TCS Daily

The Wrongs of Right of Reply

By Sandy Starr - August 7, 2003 12:00 AM

Should individuals and organizations be entitled to reply to criticism that is made of them? Certainly they should. This is commonly known as the right to free speech. It means that no authority should be able to forcibly prevent you from expressing your opinion. 


But when people today discuss the "right of reply," they don't usually mean freedom of speech, properly speaking. What they mean is that the authorities should intervene to ensure that when you reply to criticism, your reply is granted a certain amount of credibility and prominence. This idea is at best ridiculous, and at worst dangerous. 


It's fair enough to insist that nobody censors your opinion. But making your opinion heard, and convincing others of its validity, is your responsibility and nobody else's. The authorities have no business intervening to promote your opinion, just as they have no business intervening to censor your opinion. Only by insisting that the authorities have nothing to do with whether and how you express your opinion, can you prevent them from exercising undue control over public debate and discussion. 


Try telling this to the Council of Europe, which is currently in the final stages of drafting a "Recommendation on the Right of Reply in the New Media Environment." This Recommendation will ask Council of Europe member states that they "consider introducing measures in their domestic law or practice so as to harmonize rules on the right of reply across all media." And as for anyone who "refuses a request to publish a reply," the Recommendation states that, "the possibility should exist for the person concerned to bring the dispute before a tribunal or another body with the power to order the immediate publication of the reply."


Let's be clear about this. This Recommendation is asking governments to create a new legal requirement for all publishers and broadcasters (including those who run websites) to publish or broadcast replies from anyone who disagrees with them. Not only that, but "the reply should be given, as far as possible, the same prominence as was given to the contested information in order for it to reach the same public and with the same impact." 

Picture, if you will, your favorite partisan publication, if 50 percent of its content suddenly consisted of corrections of fact and disagreement with the central editorial outlook. It's safe to assume that if the resulting publication was something you were interested in reading, then you would have sought out that kind of reading material in the first place. It's also safe to assume that if a publication or website conspicuously fails to uphold standards of accuracy and integrity, then you will consider withdrawing your readership from it of your own accord. 


Who are these patronizing bureaucrats at the Council of Europe, who think that the only way to guarantee the dissemination of truth is through forcible manipulation of media content? Are we not capable of deciding whether something is true for ourselves? Not if the comments on the Recommendation that have been published on the Council of Europe website are anything to go by. According to legal adviser Professor Norbert Flechsig, "it the interest of the public to receive information from a variety of sources."


Actually, it is in the interest of the public for people to receive information from whatever variety of sources they choose. People's preferred sources of information are their business, not the business of the Council of Europe.


The draft Recommendation reassures us that "the right of reply must be limited to factual statements claimed to be inaccurate a consequence, the dissemination of opinions and ideas falls outside the scope of this Recommendation." But there is no ironclad distinction between fact and opinion in journalism. A writer's selection and presentation of facts is inevitably guided by their opinions, which is no excuse for shoddy journalism, but rather is the lifeblood of quality journalism.


The danger of providing people with a "right of reply," even one limited to claims of factual inaccuracy, is that it gives anyone who disagrees with a published or broadcasted opinion the means to dilute and compromise that opinion, by bringing spurious claims of factual inaccuracy. This is a cowardly alternative to having an argument out properly, so that differences of opinion can exist in the open, without recourse to a fictitious "right of reply." 


Even more bizarre than the idea of drafting a "Recommendation on the Right of Reply," is the idea of drafting it specifically for the "New Media Environment." The Internet, more than any other communications medium, provides people with the means to express their opinions easily. Anybody with a computer and a connection can set up a website, to refute any criticism that has been made of them.


What need is there, then, for a "right of reply" for Internet content? According to the Recommendation, "the right of reply is a particularly appropriate remedy in the online environment due to the possibility of instant correction of contested information and the technical ease with which replies from concerned persons can be attached to it."

But this is precisely why it is an inappropriate remedy in the online environment. The "possibility of instant correction of contested information" already exists, without any need for new legislation.


If you read the text of the proceedings that led to the Recommendation being drafted, you come across a striking comment, made at a Strasbourg hearing in February 2003, that sums up the prejudices behind the Recommendation: "the right of reply granted to associations who fight against racism." This comment, and the subsequent Recommendation, is predicated on the false assumption that true and desirable opinion cannot win public acceptance unless the state intervenes to guarantee that it is heard, and that individuals and organizations are incapable of refuting criticism and misinformation through the mechanism of public debate.


Essentially, the Recommendation expresses a contemptuous view of the public's ability to think and argue for itself. 


The right to free speech is not the exclusive preserve of "associations who fight against racism," or any other desirable entity, but rather should exist for all opinions - including those that appall us. The proper way to disqualify an abhorrent opinion, or to correct an inaccurate statement of fact, is by having a debate before the court of public opinion. The "right of reply" is just a way of privileging selected opinions, that have yet to be tested in public debate, and then dressing up what you've done as freedom of speech.

This "right of reply" is plain wrong.


Sandy Starr coordinates information technology coverage for spiked.


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