The Right To Reply From A Measure For Restoring The Right To Dignity To A Personality Right

Author:Maria Irina Budica-Iacob (IACOB)
Position:Faculty of Law, University of Craiova
Pages:192-207
SUMMARY

The right to dignity is fundamentally linked to the human being. Any breach thereof must give the holder the opportunity to repair the prejudice caused. Most of the time the prejudice is primarily non-patrimonial, which makes it more difficult to remedy. The right of reply gives the interested party a non-patrimonial remedy of the dignity through the possibility of restoring his/her reputation by ... (see full summary)

 
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THE RIGHT TO REPLY FROM A MEASURE FOR RESTORING THE
RIGHT TO DIGNITY TO A PERSONALITY RIGHT
PhD. Student Maria Irina BUDICĂ-IACOB (IACOB)1
Abstract
The right to dignity is fundamentally linked to the human being. Any breach thereof must give the holder the
opportunity to repair the prejudice caused. Most of the time the prejudice is primarily non-patrimonial, which makes it
more difficult to remedy. The right of reply gives the interested party a non-patrimonial remedy of the dignity through the
possibility of restoring his/her reputation by presenting his/her variant of truth. The purpose of this paper is to highlight
the importance of granting the right of reply in the shortest possible time and through the fastest possible means, including
through provisional measures. Its recognition at the legislative level only in the field of audio-visual communications is
not sufficient, but may represent a starting point for its extension in the civil law. The lack of an express regu lation in
civil matter does not, however, impede its granting, but the observance of some conditions specific to the civil means of
protection of the personality rights is required, and the time elapsed until its exercise is longer and the reply may become
inconsiderable. Reparation by equivalent cannot fully restore the right to dignity, which is why the legislative recognition
in civil law of the right of reply is required as a personality right in the interest o f the individual's self-determination
regarding the public presentation of his/her person.
Keywords: right to reply, dignity, reputation, lege ferenda.
JEL Classification: K15
1. Introductory aspects regarding the legal regulation of the right of reply
The idea of a right of reply at the disposal of persons who claim to have been victims of
defamatory publications is not new; it was borrowed from the French law, the first form appearing in
1819. Any person specifically referred to within a publication has the right to request the introduction
of a reply, which should respect a predetermined character and length of the text, within the same
publication. This right of reply applies even to the author of a book or play that does not agree with
the statements contained in a published criticism. Of course, there is no guarantee of truth through
this procedure, but thus the public is able to establish the truthfulness and firmness of the conflicting
opinions. These provisions are still in force under another law: Law on the Freedom of the Press of
July 29th, 1881. As the right of reply is a much faster, less expensive and less difficult solution than
usual actions for false accusation, the example of France has been followed in many countries. They
adopted either the French form for the right of reply; either compulsory denial or withdrawal the
forced publishing in the same publication in which the defamatory article appeared in a revised
version of the facts; or a combination of the two2.
In Germany, the right of reply (gegendarstellungsrecht) is based on the Reich Press Law of
1874 and belongs to the press right and assumes that anyone affected by a factual statement spread in
the mass media about his/her person or organization should be able to articulate or correct something
in the same environment in a comparable place and in a comparable presentation.3 It is a right to self-
determination on the public representation of own person, especially in relation to the development
of mass media.
In Switzerland, the right of reply is regulated by the Civil Code, but it is not really a general
right; it applies only to periodic mass media. It is closely related to the protection of the personality
right and can only be invoked if the personality is affected. This protection is, among other things,
restricted, as it is only admitted in terms of presenting the facts excluding the personal opinion and
the judgment of the value expressed towards a person.4
1 Maria Irina Budică-Iacob (Iacob), Faculty of Law, University of Craiova, iacobmariairina@yahoo.com
2 John B. Whitton, An International Right of Reply, The American Journal of International Law, Vol. 44, No. 1, Washington, 1950,
p. 142.
3 The document is available online at the web address: https://de.wikipedia.org/wiki/Gegendarstellung, consulted on 1.10.2019.
4 Andreas Bucher, Personnes physiques et protection de la personnalitė, 5e édition, Helbing Lichtenhahn, Bâle, 2009, p.140.
Perspectives of Law and Public Administration Volume 8, Issue 2, December 2019 193
There was also a movement for the establishment of an international right of reply when the
problem of international propaganda became really serious. One of the first proposals was made in
1929, when the International Juridical Congress of Radio-Electricity made an oath that was in favour
of extending the right of reply already existing in the case of broadcasting activities. In 1931, the
International Federation of League of Nations Societies recommended the formulation of a new right
of reply on behalf of any state that opposes the dissemination of news, in the press or on the radio,
because the existing one was not precise or was considered to disrupt international relations. A similar
proposal was also launched by the International Federation of Journalists at a conference held in
Brussels in 1934. A project was also developed by the United Nations, the main purpose in respect
of the international law for rectification was to offer to the states that have suffered from the
publication of false or distorted news, which could have damaged the friendly relations with other
states, the opportunity to guarantee their proper promotion within their own publications. It was
intended to prevent the publication of such news or, at least, to mitigate their effects. In order to
enforce the right, the following conditions had to be met: a news transmitted from one country to
another by correspondents or news agencies; its publication abroad; a statement from the state that
makes the request according to which the news is capable of damaging its relations with other states
or affecting the national prestige or dignity; and a similar statement according to which the news is
false and distorted.5
The solution was the adoption of the Convention on the International Right of Correction of
August 24th, 19626 according to which the Contracting States agree that, in cases where a Contracting
State asserts that a news release transmitted from one country to another by correspondents or news
agencies of a contracting or non-contracting state and published or disseminated abroad is false or
distorted and is capable of damaging its relations with other states or its national prestige or dignity,
it may send its version of the facts (called "release") to the contracting states on whose territories this
remittance was published or disseminated. The release can be issued only in respect of communicated
news and must be without comments or opinions. It must not be longer than necessary to correct the
alleged inaccuracy or distortion and must be accompanied by a published or disseminated verbal text
of the remittance and by the evidence that the remittance was transmitted from abroad through a
correspondent or an information agency.
The recipient Contracting State, regardless of its opinion on the facts in question, must
communicate the release to correspondents and information agencies operating on its territory
through the channels commonly used for the dissemination of news relating to international business
for publications and to transmit the release to the headquarters of the information agency whose
correspondent was responsible for the remittance in question, if this headquarters is on its territory.
In the event of non-compliance, the State whose rights have not been respected may, on the basis of
reciprocity, grant a treatment similar to a release which was subsequently transmitted by the State
implicitly. If any of the Contracting States to which a release has been sent does not meet, within the
prescribed period, the obligations stipulated, the Contracting State exercising the right of correction
may submit the mentioned release, together with a published or disseminated verbal text of the
remittance, to the Secretary-General of the United Nations and, at the same time, may notify the
claimed State that it would do so.
Unlike its counterpart at the national level, the international right of reply does not benefit
from any support in terms of judicial control. In addition, its implementation is almost completely
optional; the only penalties provided for if it is not observed are extremely weak. In fact, its optional
character was praised by some of its main supporters as one of its best features, even though some of
the United Nations delegates criticized the plan for being too cautious and too modest.7
In our legal s ystem, the right of reply has already found its place in the Press Law of the
5 John B. Whitton, An International Right of Reply, The American Journal of International Law, Vol. 44, No. 1, Washington, 1950,
p. 141-145
6 The document is available online at the web address: http://hrlibrary.umn.edu/instree/u1circ.htm, consulted on 1.10.2019.
7 John B. Whitton, An International Right of Reply, The American Journal of International Law, Vol. 44, No. 1, Washington, 1950,
p. 141-145.

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