Right of reply in Belgian media

In Belgium, there are various laws that regulate the “right of reply” in the media, depending on the type of media (press, radio, television, internet) and the place of publication or broadcast. It is often not easy to determine which law specifically applies. Lawyer Bart Van Besien tries to shed some light on this matter.

Right of reply depends on type of media: print, audiovisual, or internet

The Belgian Act of 23 June 1961 on the right of reply grants a broad right of reply to any individual or corporation named or implicitly referred to in a newspaper or a magazine, and a more limited right of reply to any individual or corporation named or implicitly referred to in an audiovisual broadcasting (i.e., radio or television). The Act on the right of reply does not apply to electronic versions of newspapers and other internet-based media. Several legislative proposals aimed at applying similar rules to electronic media have failed so far, but journalistic self-regulation to some extent covers an electronic right of reply.

In other words, there are distinct rules applicable to the right of reply depending on the type of media outlet.

 

Right of reply for the written press (newspapers and magazines)

 

For “periodical publications” (newspapers or magazines), the rules on the right of reply of the Belgian law of 1961 apply. This law offers a fairly general right of reply to any natural person or legal entity that is explicitly or implicitly mentioned or identified in a newspaper or magazine.

Conditions for the right of reply in the written press

Firstly, a request to publish a reply must always be submitted within three months (otherwise, the claim will expire). The law also stipulates that the publication of the reply must be free of charge. The publisher cannot charge any special costs or fees.

The reply must be published in its entirety without any insertions. This does not mean that the right of reply is unlimited (the law sets a maximum of one thousand letters or double the space occupied by the original text). The reply must also be published in the same place and in the same font as the original text. In other words, the reply cannot be hidden at the back of the newspaper or magazine (unless the original article was also placed at the back).

The publisher must publish the reply in the first issue that appears after a period of two days (Sundays and holidays excluded) from the day the reply was submitted to the publisher. The publisher cannot wait until public interest or relevance has faded.

In certain cases, the publisher may refuse to publish a reply. This may be the case, for example, if the reply is not directly related to the original article. Publication may also be refused if the reply is offensive, violates laws or public morals, unnecessarily involves third parties, or is written in a language other than that of the original article.

For scientific, artistic, or literary criticism, special rules apply. Such criticisms only give rise to a right of reply if the reply is intended to correct a ‘factual’ element or to defend one’s honor. In other words, in the case of scientific, artistic, or literary criticism, the person involved must tolerate more criticism (though they still have a right of reply for factual inaccuracies or damage to their honor).

For clarity, fines for failing to respect the right of reply are imposed on the publisher (not the author of the article) or the printer if the publisher is not clearly identified.

 

Right of reply in audio-visual media (TV and radio)

The 1961 law also grants a more limited right of reply to individuals or legal entities that are explicitly or implicitly mentioned in audiovisual broadcasts (read: radio and television).

In Flanders, however, you must take into account the Flemish Decree of March 27, 2009, concerning radio and television broadcasting (Articles 103-112 of the Flemish Act of 27 March 2009 on radio and television broadcasting). In practice, this means that the 2009 decree applies to Flemish radio and television broadcasts, while the rules of the federal law of June 23, 1961, continue to apply to French-speaking radio and television broadcasts. To complete the picture, the German-speaking Community has its own rules as well. Overall, the different rules regarding the right of reply on radio and television are quite similar.

Below are the rules for the right of reply on Flemish public and private radio and television.

The Flemish decree stipulates that any natural person or legal entity whose legitimate interests, such as reputation and honor, have been damaged by an incorrect statement during the broadcast of a program, has the right to request the free inclusion of a reply. The right of reply on Flemish radio and television is therefore more limited than in the written press, where no damage to legitimate interests is required (a mere mention – explicit or implicit – suffices in newspapers and magazines).

Conditions for the right of reply on Flemish radio and television

Firstly, the request for the inclusion of a reply must be submitted in writing and within a period of one month. The decree stipulates that the duration of the reply can be limited “to what is strictly necessary to respond to the information that led to the request.” The reply must be able to be read within a maximum of three minutes or must consist of a maximum of 4500 typographical characters.

In principle, the reply must be broadcast in the next broadcast of the same program after a period of two working days (Sundays and public holidays excluded) following receipt of the request. If no new broadcasts of the program are planned within the next fourteen days, the reply must be broadcast within fourteen days “at a time accessible to the public” (not at a time when no one is watching or listening).

The reply must be included in its entirety, without insertions, in the same way and under conditions as closely as possible resembling those of the original broadcast.

The decree also stipulates that if a response or commentary on the reply is given, the person concerned can demand a new right of reply.

The reply may be refused if it is offensive or contrary to laws or public morals. The reply must also be directly related to the information that led to the request. The reply may not involve third parties unless strictly necessary.

If the broadcaster refuses to air the reply, it must notify the complainant within four working days of receiving the request (and no later than the day the reply should have been broadcast) via a registered letter explaining the reasons for the refusal. The broadcaster may also propose an alternative in this letter. If the requester does not respond to the counterproposal within fifteen calendar days, the counterproposal is deemed accepted.

The right of reply expires if the radio or television broadcaster voluntarily made a satisfactory correction or if a right of reply was already granted during the broadcast.

 

Right of reply for online media?

The 1961 law and the 2009 decree do not apply to internet versions of newspapers or television and other online media. Several legislative proposals have been submitted over the years for a right of reply for online media, but all have failed. The Journalistic Council’s code of ethics does provide for an online right of reply to some extent.

Summary on the right of reply under Belgian law

Right of reply for the written press:

• Legal basis: Law of June 23, 1961
• Who: For natural persons and legal entities
• Deadlines: Complaint must be filed within 3 months, reply must be published in the first issue after 2 days (no Sundays and public holidays) from submission
• Free publication of the right of reply
• Reply must be fully published (limited to a maximum of 1000 letters or double the space of the original article)
• Reply must be published in the same place and in the same font as the original article
• Refusal possible if no direct connection to the original article; if offensive; if contrary to the law; if contrary to public morals; if third parties are unnecessarily involved; or if in another language
• More flexible rules for scientific, artistic, or literary criticism.

Right of reply for audiovisual media:

• Who: For natural persons and legal entities whose legitimate interests (reputation and honor) have been damaged by an incorrect statement
• Deadlines: Complaint must be filed within 1 month, reply must be broadcast in the next broadcast of the same program after 2 working days (no Sundays and public holidays) from receipt of the complaint.
• Free broadcast of the right of reply
• Reply must be fully broadcast (limited to what is strictly necessary to respond; reply must be read within a maximum of three minutes or consist of a maximum of 4500 characters)
• Reply must be broadcast in the same way and under the same conditions as the original broadcast
• If there is a response or comment on the reply, the complainant may submit a new reply
• Refusal possible if no direct connection with the original broadcast; if offensive; if contrary to the law; if contrary to public morals; if third parties are unnecessarily involved. Refusal must be communicated by registered letter within four working days of receipt of the request (possibly with mention of a counterproposal).
• No right of reply in case of voluntary correction or if a reply was granted during the broadcast.

In practice, it is not uncommon that a request to publish a reply is met with reluctance on the part of the publishers. In case a right of reply is refused or is published in a way that does not conform to the legislation, a publisher may be sentenced to payment of a fine, of an indemnification for damages, and/or of non-compliance penalties (which are often much higher than the fines, and in practice are the most convincing tool to ensure compliance).

See a Dutch-language version of this article on the website of Fonds Pascal Decroos.

For more information on the right of reply in Belgian media, please contact me via the contact information on this website.

Bart Van Besien 

Lawyer Media Law