Online Publishing

On
15 December 2004 the Council of Europe adopted a recommendation on the
right of reply to address internet publishing (the text is available on
www.coe.int).

The right of reply enables people to correct
inaccuracies about themselves communicated by the media. In 1974, the
Council of Europe adopted a resolution on the right of reply that
covered newspapers, magazines, television and radio. On 15 December
2004, this was extended to cover online publications equivalent to
traditional news media.

The recommendation (Rec [2004] 16)
applies to “any means of communication for the periodic dissemination
to the public of edited information, whether online or offline, such as
newspapers, periodicals, radio, television and web-based news
services”. The aim is to cover news services available on publicly
accessible networks which are similar to traditional media and which
are frequently updated and edited. However, its scope is not entirely
clear and the definition could possibly extend to certain political or
commercial websites if they are “edited” in the journalistic sense.

Of
the 46 member governments of the Council of Europe, only the UK and
Slovakia reserved the right of their governments not to comply with the
recommendation in so far as it referred to online services. The UK
government had sought views to gauge the attitude towards the draft
recommendation. The responses it received were overwhelmingly negative,
with all those responses from within the UK media industry expressing
concern at the possible implications of the recommendation. The Office
of Communications (Ofcom) and the Press Complaints Commission already
provide for a right of reply on a voluntary basis. The UK government
feels that this is a sensible and sufficient system which should not be
augmented.

The UK government’s main concern with the Council of
Europe’s proposal was that imposing a right of reply on online
publishing would create an impractical and unenforceable system. It
considered that adoption of the right could discourage new online
publications being set up, which would be detrimental to freedom of
speech.

It claimed the public already has a form of right of
reply on the internet: if a person feels aggrieved at material featured
on a website, he/she is able to easily create their own website with a
link to the offending website, rebutting the offending material.

Although
the Council of Europe has adopted the recommendation, it will be up to
member governments to decide whether to follow the non-binding text. In
the light of the UK government’s position, the recommendation is
unlikely to result directly in any new UK laws implementing the right
of reply.

A similar non-binding recommendation on the right of
reply is under discussion at European Union level (COM [2004] 0341). In
March 2005, two committees of the European Parliament endorsed the
proposal and suggested amendments. In due course, the European
Parliament will vote on the proposal, which will pass back to the
Council. It is clear from these developments that the right of reply is
gaining importance in Europe.

Timothy Pinto is a media and entertainment solicitor at Taylor Wessing

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