Rethinking the right to reply

In March 2015, El Faro, the El Salvador-based online magazine, published a detailed investigation of a massacre that took place in the village of Santa Cruz in 1981, at the height of the country’s civil war. The El Faro report, based on research carried out by the University of Washington, directly implicated retired General Sigifredo Ochoa Pérez, then a member of the Salvadoran Legislative Assembly. Even though Ochoa Pérez was quoted extensively in the story, he demanded that El Faro publish his detailed response. Ochoa Pérez’s letter, which appeared six weeks after the original story, did not substantively challenge the facts. But it did provide an opportunity for Ochoa Pérez to express his indignation and defend his honor.

One could say that Ochoa Pérez was exercising his right to reply, or “derecho a réplica” in Spanish. The right to reply can be a simple correction, but it can also be a detailed rebuttal. “We feel we have an obligation not just to report the news, but also to show our readers what is good journalism, what is good practice,” explained El Faro Editor José Luis Sanz. “We always prefer dialogue.” 

As a press freedom advocate who defends the rights of journalists working in repressive and dangerous societies, I’ve long been skeptical of  the right to reply. Where it exists in law it is often abused by politicians and other powerful figures who seek to compel the media to publish angry rants and fatuous denials. A recent Mexican legal ruling would have granted politicians the right not only to correct errors but to “counter bias or prejudice.” Fortunately, it was rejected by the country’s Supreme Court. 

But recently, I’ve begun to rethink my position. This is because I believe that offering aggrieved individuals the opportunity to publish detailed rebuttals can reduce the risk of legal action or even violence in places where journalists are under threat. Even in the United States, such rebuttals can encourage debate and engagement and provide a safety valve in circumstances that might otherwise lead to litigation.

While common in Europe and Latin America and affirmed in international law, the right to reply is not universally accepted. The most sweeping articulation is Article 14 of the American Convention on Human Rights, which declares that “[a]nyone injured by inaccurate or offensive statements…has the right to reply or to make a correction using the same communications outlet.”  However, there is no right to reply in the United States. In a 1974 decision, the US Supreme Court declared it unconstitutional, concluding that forcing a newspaper to publish something against its will violated the First Amendment and represented an “intrusion into the function of editors.”

Part of my resistance to the right to reply is precisely this rights-based framing. I don’t see it as a right at all, and I certainly don’t think governments should play editor. Instead, I think quality media should voluntarily offer what I would call “an opportunity for rebuttal.” By rebuttal, I mean a detailed response to a published article, linked to the original piece. In some cases, the rebuttal would amplify and expand comments included in the story. In extraordinary circumstances, the subject of a story could be given an opportunity to offer a response even after having declined to do so pre-publication. 

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The key is that the entire process must be voluntary and not mandated by law. For example, Alejandro Páez Varela, editor and co-founder of the Mexico City-based news website Sin Embargo, says he fights efforts by politicians who use the courts to compel the publication of responses but is flexible and accommodating when arrangements are made through negotiations. Sin Embargo regularly publishes responses to its articles that take a contrary view or generate debate. “I believe in the right to reply,” says Páez Verela. “We don’t own the truth. We are not superman and we do not have X-ray vision that allow us to see everything.”

In the United States, people aggrieved by media coverage can request a correction or send a letter to the editor. They might be able to place an op-ed. But they are almost never granted the opportunity to offer a detailed rebuttal. Why not? 

Many editors cite a lack of space, but this has become an antiquated concept in the digital age. As media rights attorney Charles Glasser notes, “you can’t fill up the internet.” In more than a dozen years as Global Media Counsel for Bloomberg, Glasser says he was often able to defuse conflict and potentially head off litigation simply by letting those angered by critical coverage “have their say.”

As an example, Glasser cites the case of a reporter who left out technical elements in his description of a company’s complicated marketing plan, giving the mistaken impression that it could be a pyramid scheme. Glasser said in an email that while Bloomberg could have won a threatened libel suit, “it served the readers’ interest and the interests of all parties to simply add an update where the company added some points to explain the marketing plan. It’s a win-win. The reader gets more information, we aren’t forced to spend money in legal defense and the company we wrote about feels they were treated fairly.”

David McCraw, assistant general counsel for The New York Times, notes that authors whose books are unfavorably reviewed are sometimes provided an opportunity to offer their own perspective. But when it comes to news coverage, the process is considerably more difficult. For example, after banker-philanthropists Herb and Marion Sandler raised objections to a highly critical 2008 investigative story in the Times, they entered into protracted and difficult negotiations with the newspaper, as recounted in a 2010 CJR story. In January 2009, the Times published three corrections. Three months later, the Sandlers posted to their Web site  a 22-page letter outlining their grievances, to which then Executive Editor Bill Keller responded.

That arduous and costly process might have been avoided if the Times had had an official rebuttal policy. How might this work in practical terms? A news organization could designate a specific editor–it could be a standards editor, public editor, or letters editor–to handle requests for rebuttals. As with letters, the news organization would exercise its own discretion and judgment in choosing what to publish and what not to publish. Rebuttals would need to be informative and well written and in general would provide an alternative analysis of the facts or present relevant information not included in the original piece. They would be subject to editing and legal review, and would need to conform to length requirements. And they would be published only online.

Because of these requirements, rebuttals would be rare–I could imagine a major media organization publishing perhaps a handful each year. And because of the need for editorial and legal oversight, rebuttals might not be a realistic option for a small or struggling outlet. 

Editors might argue that aggrieved individuals could publish their own version on a blog or social media platform, but of course the response takes on a different connotation when published in the original outlet and linked back to the story. Publishing a rebuttal would also demonstrate a commitment to fairness that could enhance media credibility at a time when it’s in short supply. 

As a legal concept, I continue to believe the right to reply is unworkable. There is no need to involve governments in the process. But the concept of a right to reply does address a legitimate issue, which is that is aggrieved individuals often feel they have no opportunity to respond to damaging media coverage once it has been published. By providing a process through which this can be achieved, US media outlets can do the right thing while protecting their own interests. More importantly, they can provide a roadmap for media organizations working in perilous circumstances around the world. 

Carlos Dada, a reporter for El Faro and also its founder, puts it this way: “We consider journalistic accuracy a basic protection tool.” El Faro only publishes detailed responses when they have merit and after an extensive internal debate. “If we have made a mistake, falsely accused or misrepresented someone, we will do all we can to correct it. It is of course an ethical obligation, but it also helps to make it clear that we don’t have agendas against anyone or any group. It’s not a personal matter, but rather of public interest.”

Photo credit: Wikimedia Commons

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Joel Simon is a CJR columnist and the executive director of the Committee to Protect Journalists. His second book, The New Censorship: Inside the Global Battle for Media Freedom, was published by Columbia University Press in November 2014.