Barron tribute: comparative perspectives

Panel IV: Rights of Reply in Comparative Law

Kyu Ho Youm, University of Oregon School of Journalism and Communication

Internationally, the press is governed differently than in the US. In 1996, ECHR recognized a reporter’s privilege to protect sources, and in 2002 the International Criminal Tribunal recognized a privilege for war reporters. The US, comparatively, is retrenching on journalistic freedom, whereas 12-13 nations recognize it as a constitutional right.

Barron said little about international/comparative law. Since 1967, more countries have recognized the right of reply in statutes and constitutions, conceived of as a human right. A nice reminder: the US Constitution is very very short, comparatively! So there’s less guidance than in other governing documents.

French law recognized a right of reply in 1822, which over time evolved into an idea of access to the press – now the right is conceived of in terms of how it affects public opinion, instead of just making sure that people could recover from reputational injuries.

Should the right expand to the internet? There are no time/space constraints on an internet right of reply.

France, Germany, Hungary, and South Korea (which adopted Germany’s right of reply law wholesale): they are rated as free countries by general standards; the right of reply doesn’t seem to have restricted the freedom of the press. And the right is thriving more in South Korea than in Germany. Is it a way for the government to dictate the agenda? No, not in practice. Constitutional court interpretations in Germany, Hungary, and South Korea are similar – they are focused on providing the public with broad access to information.

Pnina Lahav, Boston University School of Law

Coming from Israel in the late 1960s, she was barely aware of the idea of a right to dissent. Barron’s scholarship was completely different from her experience – drawing on social science rather than legal doctrine. It left the formalism in which she’d been trained behind. Her legal training looked to England, not the US, and there was no study of comparative law. The US was exceptional in the 60s and 70s, light years ahead of its democratic contemporaries (much less the Communists), and that exceptionalism was extremely influential.

Barron and Youm are both mindful of the wide gap between the right of access and the right of reply. Lahav discusses a 1950s convention on a national right of correction – the ability of a nation to correct false and damaging stories. But look at Mary Dudziak’s work on the effect of foreign criticism of racial segregation on attitudes and law in the US – should the US have had a right to protest foreign stories on that? What about Russia and stories about Russian governmental involvement in the death of journalists? Only a few countries signed this convention, including Nasser’s Egypt, Batista’s Cuba, France – really more about denial of access than access.

The right of reply is for individuals, not social groups; facts, not ideas; a bourgeois right for a bourgeois society, adopted at times when countries were far from democratic. She is skeptical of its effect on robust debate. We need an empirical study: who applies to use such a right? What are the effects on news producers? A retraction is not capable of producing social change; a right of access is more structural and proactive in shaping civil society.

Stephen A. Gardbaum, UCLA School of Law

In many countries, a right of reply is constitutionally required – German Constitutional Court, ECHR – either expressly, or because of a state’s constitutional duty to protect personality rights. The latter duty is normally fulfilled by enacting a statute, but it’s not a matter of legislative discretion; failing to have a statute would violate the individual’s right to protection from the government. Either path would be basically impossible in the US.

Other countries tend to have what would be here an unconstitutionally rigorous libel law; it is a supplement to right of reply, not an alternative. The UK has a rigorous libel law and no right of reply; he’s not aware of any case in which a right of reply offers an alternative to strict libel law.

The value national laws place on protecting the individual is what produces much of the difference between the US and other countries.

Barron pointed out that being ignored left a group remedyless; access rights should not be conditional on what a paper chooses to print. Several countries have tried something to implement access rights. France enacted laws restricting newspaper ownership to 15% of the market; the Constitutional Council struck down legislation to increase that percentage as violating the constitutional value of pluralism.

In these right of reply debates, there’s almost an obsession with distortion of political views by the mass media. Many other features of US society screen out political views before they get to the US media in the first place. The general role of the market: it’s generally accepted that market provision will be the rule, for example in health care (government-provided is off the table) or maternity leave (the idea that it would be paid is off the table), even though almost every other developed country has these things. The two-party system with majority rule also narrows the acceptable views, since politicians chase the average voter. Campaign finance also narrows the range of views since only certain ones get funded. Also, politics focuses on individuals, rather than party positions, different from almost every other political systems, in which parties develop agendas and long-term strategic thinking, and the candidate doesn’t determine the platform.

The media are overwhelmingly deferential to politicians – in interviews, at press conferences – there aren’t ways to hold political officials to account as there are in a parliamentary system. If the journalists aren’t deferential, politicians won’t do interviews. A parliamentary system forces officials to answer tough questions, and that’s better. This is a problem that goes deeper than access.