PRAVNI ZAPISI • Year IV • No. 1 • pp. 87-125
REVOCATION (RETRACTION) OF MEDIA INFORMATION – ONLY MORAL AND ETHICAL OR A LEGAL OBLIGATION AS WELL?
Prof. dr dr h.c. Vladimir V. Vodinelić
Redovni profesor, Pravni fakultet Univerziteta Union u Beogradu
Pravni zapisi, No. 1/2013, pp. 87-125
Original Scientific Article
right of retraction; retraction as an ethical category; retractionas a legal category; justification for the existence of the right of retraction; Serbian Media Draft Law 2013
(1) Draft Law on Public Information and Media in Serbia, issued in 2013, for the first time completely defines the right of retraction of false and incomplete offensive media information. In the course of preparation of the Draft Law, public discussion and a professional opinion of a European Union expert suggested that the right of retraction is a moral and ethical right which should not be defined by the Media Law and which has to be self-regulated by media. It was also claimed that the right of retraction is redundant because the right of rectification is already in place. This is the first time that a legal institution of retraction was disputed in Serbia, where the legal right of retraction has existed for decades and even longer, in all previous Yugoslavias. (2) The author shows that the right of retraction, even though it exists as a moral and ethical right, and despite the already existing right of rectification, can, may and should be regulated by the Media Law. a) It can be regulated for the following reasons. The issues which are legally regulated in terms of retraction do not fall under the so-called legal vacuum (rechtsfreier Raum): they are suitable to be regulated by legal norms, to be controlled in terms of compliance and to be enforced by the court if not complied with. Not only can retraction be, but it already has been legally regulated in a number of countries, including ours, both prior to and after the adoption of the Law of Contract and Torts in 1978, whereas in some countries it is one the most used methods for protection against the violation of the right of an individual in media. Media Law also defines the reply to information and rectification of information, even though they are the closest to retraction and also subject to moral and ethical obligations. b) Retraction may be regulated by the Law for the following reasons. The right of retraction is not forbidden either by the Constitution or by any other regulation of the Council of Europe or the European Union, whereas neither the European Court of Human Rights, nor European Court of Justice have ever stated that retraction as such is not allowed. When the constitutionality of retraction was being exceptionally disputed at the national level, as it was the case in Georgia, the Constitutional Court did not find it was incompatible with freedom of expression. The right of retraction could not even be forbidden because it serves to protect the rights of an individual which are guaranteed in the same manner as the freedom of media is guaranteed. The particular legal regime of the Draft Law does not sacrifice the freedom of media for the freedom of an individual, but rather takes into consideration the heuristic idea of balancing these two goods, so that retraction is only limited to the proven false and incomplete factual statements (while excludes the retraction of an opinion or value judgements), and only to those violating the right of an individual. Definition of the right of retraction in the Draft Law limits the media freedom legally (it would be based on the Law, sufficiently regulated by specific legal norms available to everyone), legitimately (because it serves to protect the reputation and the rights of others as one of the legitimate goals for the limitation), and proportionately (because it represents a means needed and suitable for the achievement of a legitimate goal – for the restitution of violated rights, where it does not exceed the level of media freedom limitation, needed for this legitimate goal to be achieved). Retraction is not redundant to rectification, nor does it excessively limit the freedom of media, because they are used alternatively and not cumulatively. Retraction limits the media freedom to a lesser extent than rectification and reply, because a media outlet announces its own retraction, whereas someone else prepares rectification and reply. c) Retraction should be regulated by the Media Law for the following reasons. In some foreign journalists’ codes (and in the codes of some broadcasters), retraction is defined as an ethical obligation, explicitly alongside the rectification and the apology. In Serbian codes it has not been defined as such, but one could benevolently understand that the ethical obligation of a retraction is implied by the ethical obligation of a rectification or an apology. The mere existence of moral and ethical obligation of retraction does not mean that the legal right of retraction is redundant. If there is no legal right of retraction, then the retraction cannot be considered as an option when a journalist or a media outlet does not accept or respect ethical obligation of retraction, or is not a member of the association whose code contains, or an ethical commission’s decision does not ensue, etc. Retraction can help remove the consequences in case of violation of the right of an individual, as the Constitution guarantees the right to remove the consequences of the violated guaranteed right, through protection by the courts. The need to provide legal security by implementing the provisions of Article 199 of the Law on Contract and Torts referring to retraction implementable by court and its implementation without any discrimination requires regulation of retraction by the Media Law. De lege lata (‘the law as it exists’) in Serbia is that the right of retraction has been underregulated: there is a number of judicial and legal gaps, there is no established judicial practice, it has been neglected as a topic in the legal science, and there is no single answer to any of the numerous questions related to it neither in codes of ethics nor in the codes of behavior of broadcasters.