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The Pragmatics of Legitimation

Matevž Krivic, Simona Zatler
Freedom of the Press and Personal Rights
Right of Correction and Right of Reply in Slovene Legislation

eBook (269kB, pdf)

Matevž Krivic and Simona Zatler analyse the meaning of the right of correction and right of reply in relation to press freedom. They both draw attention to the issue of controversial provisions in Slovene media law and suggest possible solutions.

Matevž Krivic concludes that misunderstanding of the right of reply and right of correction in Slovenia arises from unfamiliarity with these institutes of Slovene media law and partly their illogical naming. In the first chapter the author explains terminological issues. Slovene “correction/popravek” is called reply (réponse, Gegendarstellung) in other countries, while Slovene “reply/odgovor” is a reply intended to protect public, not private interests. This right, unknown in other media laws, exceeds both classic (or “external”) and internal freedom of the press (i.e. rights of editors and journalists with respect to a medium owner). It is a fragmentary remnant of the former constitutional right to publish opinions of public importance which did not survive the breakup of the socialist system.

Slovene “correction/popravek” is, legally and in comparative terms, somewhere between the stricter, German regulations (a reply is possible only to factual assertions) and entirely liberal French regulations (a reply is limited only with regard to extent and not content). It is closer to the German solution though - but in a way which tempers rather aptly the excessive hardness of German approach without yielding too much to French liberalism. This is evident especially in essential points: a person may reply to all assertions that have affected him/her (including opinions), but only by citing “facts and circumstances” that dispute these assertions.

In the third chapter Matevž Krivic explains how these two rights are treated in the proposed media law. On the request of the author, the Ministry of Culture invited media representatives, journalists and experts to participate in the preparations for the second reading of the proposed law. This created an opportunity to place the views in direct confrontation. In the author’s opinion the resulting solutions are good and acceptable to all concerned.

Simona Zatler begins by pointing out that journalists’ task and duty is to communicate information or notices in a manner that ensures that the public is always most adequately informed so that it can contribute to the management of common issues as effectively as possible. In order to realise this task, journalists are allowed to act autonomously and free of external pressures, but at the same time the very enormity of the responsibility held by the media legitimises a number of restrictions imposed upon their activities. Among these restrictions, and one which seems to have special significance for both journalists and the media, is undoubtedly their duty to publish a reply under certain circumstances.

Even though some oppose this restriction claiming that it imposes an unacceptable burden on the freedom of journalists and the press, the right of reply or correction is regulated, as a reflection of freedom of expression, by the legal systems of all European countries. The author nevertheless emphasises that right of reply should not aim to become a general right of access to the media.

The definition of the right of reply and correction in Slovenia is far from uncontroversial. The ambiguities in the Slovene Constitution and legal system gave rise to a number of controversial issues, the most hotly disputed being the question of whether right of reply can still be understood as a right of a public legal nature. Simona Zatler concludes that right of reply in the public interest is the heritage of the socialist past. The author does not agree with the legislator that the right of reply in the public interest should be included in the new media law because a different solution would call for changes in the constitution itself, which could prove to be a long and complex process likely to delay the adoption of the law.

In author’s opinion arguments for the re-institution of the right of (public) reply in new social circumstances are equally disputable. It may therefore prove useful to reconsider the option which Matevž Krivic pointed out years ago - that we should start the procedure for constitutional change, and that this right, as an element of the Slovene legal system, should be harmonised with a modern understanding of journalistic freedom and freedom of expression in general. She proposes that Slovenia should establish an effective mechanism of protecting a balance between freedom of expression and other human rights. This could be a self-regulating mechanism accessible to a wider public through which individual complaints would be solved.