Curing media abuse – A statutory right to reply is needed

Robert Henderson

A statutory right of reply (RoR) is the thing of media nightmares. That alone tells you it is the best remedy for the general public. But the media is looking a gift horse in the mouth because an RoR would provide the strongest bulwark against any government desire to regulate the media. If there is a truly effective means of rapid redress available to everyone, including incidentally politicians, the prime argument for outside regulation is removed.

An RoR is also the perfect practical solution to the problem of media abuse because it is a self-regulating mechanism, able to develop organically and requiring no great bureaucracy to administer it or vast amounts of money to fuel it.

The only expenditure would be that incurred where an individual challenged the denial of an RoR by a newspaper or broadcaster. That cost could be kept to a minimum in two ways. First, by making libel the only reason for refusing an RoR and then only for that part of a proposed reply which was libellous. Second, by empowering Small Claims Courts to decide whether a claimed libel exists and, if the court does not agree that it does, to order the newspaper or broadcaster to publish the disputed reply. To keep things simple, there should be no appeal against the Small Claims Court’s decision.

The other mechanism which would provide redress with little cost would be to extend the powers of the Small Claims Courts to hear complaints against the media for libel and slander and other torts such as trespass. These two measures would ensure that money did not prove a barrier or determinant of ultimate legal success.

How would it work?

I would restrict the right to individuals because corporate bodies should be able to look after themselves through normal legal action.

The qualification for a right to reply would be simple and objective: the media outlet has printed or broadcast material about an individual. Hence, no prior legal decision, other than on possible libel, would be needed before an RoR was enforced.

What should the RoR entail in terms of opportunity? In the case of newspapers I would give a respondent 300 words as an automatic right and another 500 words for every 1000 words published about him or her over 1500 words. The respondent’s reply should be printed on the same page as the story to which they are responding. If the newspaper responds to a reply then the person responded to would get another RoR.

Broadcasting is more problematical, but at the least a written reply by the person criticised could be read out on air. Where the person has the confidence to speak for themselves, they should be allowed to broadcast their reply.

Practical fears

The objections to an RoR are heavy in the imagination but in all probability slight in practice. It is a case for suck-it-and see.

The media will say that it is completely impractical, that their papers and broadcasts would be full of nothing but replies. In fact, we can say with a very high degree of probability that they would not be.

The general experience of the introduction of any new opportunities for the public at large to act upon is that there is an initial burst of activity which soon settles down to a hard core of those willing to make the effort. If by any chance the introduction of a right to reply proved the odd sociological man out and the media was overwhelmed, the system could be reviewed .

A narrow RoR would be worthless

The media will doubtless throw up their hands in horror at the idea of a RoR which is anything other than a narrow one based on correcting inaccuracy. There are two solid reasons why it should not be limited to inaccuracy. The first is that there is often no easy way of proving the truth or otherwise of ostensible “facts” nor any clear distinction between what constitutes accuracy and inaccuracy or a certain definition of what is an objective fact. For example, what is the objective truth of this statement: “Harold was killed by an arrow through his eye at the battle of Hastings” in 1066? We can be more or less certain that the battle took place in 1066, assuming that we do not have a general scepticism about that which we have not personally witnessed, but the nature of Harold’s death is much more uncertain and problematical. If the RoR were restricted to inaccuracy, the media would assuredly use the lack of objective truth and falsity to undermine the RoR by arguing interminably.

The second objection concerns opinion. This is often more damaging than inaccuracy and there is no clear distinction between fact and opinion. Suppose I write of an actress that “she is a whore”. That is a statement of fact which in principle could be tested objectively, that is, does she take money or other material rewards for providing sexual favours? But what if I write “she has the morals of a whore”? Is that fact or opinion? If it is to be treated as fact how could it be tested? Again, the opportunities for argument are limitless.

The effect on the media

The effect of an RoR and small claims court libel access would be profound. Faced with an immediate published response to any inaccuracy or abusive opinion and the possibility of having to submit themselves to public examination in a small claims court, journalists and broadcasters would cease to be cavalier in what they write. An analogy would be with the recording of conversations where everyone in the conversation knows they are being recorded. Where that occurs people generally cease to lie about what was said and are careful about what they say.

The present remedies

Compare an regime such as I have proposed with the present supposed remedies for those criticised or represented by the media. These are both cumbersome and the success of a complaint is dependent upon the judgement of others. In the case of the Press Complaints Commission (PCC), the judgement is made by people drawn from the media or from those associated in some way with the media, and the organisation is funded by the press. Unsurprisingly, a non-celebrity complainant to the PCC rarely succeeds – in its entire history the PCC has never found for a complainant where to do so would be to tacitly accept that a serious libel had been committed.

But to complain that the PCC is no remedy is to miss a larger point. No matter how formally honest the PCC or any other media regulating body was, it could no more serve the public generally than the legal profession can serve the general public in actions for libel where there is no legal aid. The question is one of practicality.

The numbers of complaints actually considered formally by the PCC and the Broadcasting authorities is minute, running into a few hundred a year – most complaints never get to a full hearing or investigation. If the public began to use these bodies enthusiastically they would be overwhelmed. Short of the Government devoting a large segment of the national budget to funding vast public bodies capable of dealing with tens of thousands of complaints a year, the redress for the public will remain notional and the existence of bodies such as the PCC worse than useless. I say worse than useless because their existence gives a spurious appearance of media misbehaviour being subject to sanctions.

All that adds up to a further powerful argument for an effective RoR. Those within the media who oppose such a thing should consider whether it a lesser evil (from their point of view) than the likely eventual alternative of state-control, either openly or through quasi-independent bodies.

I will leave you with this thought. At present the relationship between someone in the media and anyone they choose to criticise is analogous to someone who binds a man and then punches him. It is not a contest, but an act of cowardice. It is essentially what anyone in the media does when they attack someone outside the media in the certain knowledge that the person will be denied an uncensored opportunity to reply.

 

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