The right of reply
The right of reply is a fundamental journalistic principle: the person being written about is given the chance to respond before the article or broadcast appears.
In our practice we guide clients through exactly these situations. Sometimes before publication, sometimes only afterwards. In both cases the same thing applies: it matters that you know where you stand and what steps you can take.
Is the right of reply compulsory?
In legal terms the right of reply is not a statutory obligation. It does not appear in the statute as such. Even so, it is anything but optional. The court gives considerable weight to whether a journalist applied the principle when assessing a publication. Is the right of reply absent from a publication that levels accusations? That can contribute to a finding that the publication is unlawful.
The Netherlands Press Council (Raad voor de Journalistiek) regards applying the right of reply as one of the core principles of careful journalism. A journalist who neglects it acts contrary to the journalistic code of conduct, and that counts, both in a complaints procedure and before the court.
“It is almost always advisable to give a factual, concise response that sets out your side of the story.”
How do you respond to a request for comment?
Are you approached by a journalist? A few rules of thumb we always pass on to our clients.
- Ask for clarification if none is given. What is the subject of the article? What accusations or allegations are being made, exactly? And what is the deadline? You are entitled to enough time to formulate a considered response, so do not let yourself be rushed.
- Always respond in writing. That prevents your words being twisted and keeps emotion from taking over. Keep all correspondence carefully. You may need it later as evidence.
- Bring in legal help in good time. With sensitive subjects in particular, a lawyer can help you frame your response and assess what legal steps are open to you if the publication threatens to become unlawful.
And staying silent? In a few cases that can be the best strategy. But be aware that “no comment” can be read by an audience as an admission of guilt. That is why it is almost always advisable to give a factual, concise response that sets out your side of the story.
Are you in this situation right now? Then get in contact with us. We can help you at short notice to frame a response that is legally sound.
What is a reasonable period for responding?
Journalists work under time pressure. I understand that. But time pressure does not relieve them of the duty to give you a reasonable opportunity to reply. How long that period should be differs from case to case. It depends on how complicated the matter is, how grave the accusations are and how topical the subject is.
Where serious allegations are involved, such as fraud, misconduct or financial irregularities, you simply need more time than you would for a straightforward question of fact. That stands to reason. Are you given only a few hours to respond to grave accusations? Then object in writing to that period and state clearly when you are able to respond.
Document everything. If the journalist publishes anyway without allowing you sufficient time, this can count in the assessment of whether the publication is unlawful. That documentation is then worth a great deal.
The right of reply in online media and gossip channels
Does the principle of the right of reply also apply to online platforms, podcasts and YouTube channels? Yes. The principle applies to all forms of journalism, whatever the medium. The case law has confirmed that so-called gossip channels must observe the same journalistic standards as traditional media. Consider the proceedings involving Roddelpraat and Yvonne Coldeweijer, where the court held that presenting rumour as fact can be unlawful, particularly where the right of reply has not been applied.
For purely personal statements on social media the position is more nuanced. There the general rules on unlawful statements apply, but the specific journalistic framework of the right of reply is less directly relevant. A statement on social media can still be unlawful if it damages someone’s honour and reputation, even where no journalism is involved.
What can you do where the right of reply is absent?
Are you given no opportunity to respond while incriminating information about you is being published? Or has an article already appeared without your having been approached? You have various options.
Having a letter of claim sent is often the first step. In it the editorial team is required to rectify, amend or remove the publication. The threat of legal steps is often enough in itself to move an editorial team to act.
Does that not work? Then summary proceedings can offer a way forward. In them you claim rectification or removal before the court. Is a publication about to appear? In very exceptional cases you can try to obtain a publication ban. But because of freedom of expression the court will be reluctant to grant one.
Have you suffered harm through the publication? Then you can claim damages. And is the medium affiliated with the Netherlands Press Council? Then lodge a complaint there as well.
The faster you act, the more effective it is. Where a publication is imminent or has just appeared, we can take action at very short notice.
Can a lawyer prevent a publication?
In exceptional cases a prior publication ban is possible through summary proceedings. The court then weighs the journalist’s freedom of expression against your right to privacy and to protection of your reputation. A prior ban, being a form of prior restraint, is a far-reaching interference with press freedom. The court will therefore not grant one readily.
But there are situations in which it is possible. The prospects are better where the accusations are factually incorrect and you can demonstrate that. Or where the publication causes disproportionate harm. It also counts whether the right of reply was not applied or applied inadequately, and whether there is any public interest at all that justifies publication.
What I see in my practice: the threat of legal steps is often enough in itself to move an editorial team to amend or postpone. Acting early pays off, since the sooner you engage a lawyer, the more options there are.
When is a publication unlawful?
A publication is not readily unlawful. The right to offend or shock also falls under freedom of expression, which sets a high threshold, and rightly so. But there are limits.
The court looks at various things. How serious are the accusations? Are they well supported by facts? Is there a public interest in publication? Are we dealing with facts or opinions? And was the right of reply applied?
The absence of the right of reply does not automatically make a publication unlawful. But it does weigh heavily. Particularly where there are also serious accusations that are poorly supported. That can then be decisive.
Would you like to know more about when a publication crosses the line? Read on at our page about unlawful publication.
Lodging a complaint with the Netherlands Press Council
The Netherlands Press Council assesses complaints about the journalistic conduct of affiliated media. It is an independent body. Do you consider that a journalist has breached the standards, for instance by not applying the right of reply? Then you can lodge a complaint there.
How does that work? You submit a complaint in writing. In it you explain which publication is at issue and why you consider it contrary to the journalistic code of conduct. The Council invites both parties to a hearing. It then gives its ruling.
That ruling is not legally binding. It nevertheless carries authority in the media sector, and media almost always act on the rulings. A finding against a medium by the Council can also help if you go on to start civil proceedings.
One important point: a complaint to the Council is no substitute for legal steps. Have you suffered harm through an unlawful publication? Then you need civil proceedings to force a rectification or damages.
Discuss your situation with a lawyer
Are you in a situation where a journalist has been in touch, or has something already been published without your having had the chance to respond? Get in contact with us for a conversation without obligation about your options.
