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

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.