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Recommendations:
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The rule on protection of confidentiality of sources should be cast as a right,
not an obligation;
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The right should apply to everyone regularly engaged in the professional or regular
dissemination of information;
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The Mass Media Law should ensure that any restrictions on confidentiality of
sources comply with international freedom of expression standards.
Right for retraction and reply
Article 34 of the Mass Media Law (unchanged through the April 2018 amendments)
provides for the right to retraction and reply. In particular, it states that legal entities and
private parties have:
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The right to demand that editorial boards retract false information damaging their
honour and dignity or business reputation published in the media outlet;
–
The right to publish a retraction or a reply in the same mass media outlet in case of
infringement of their rights and legal interests;
–
The right to take legal action in case of the media outlet’s evasion of publication
of the retraction or reply or its disregard for the time limits established for their
publication.
Article 34 also stipulates that retraction or a reply must be published under a special
column on the same page where the material that caused it was published within one
month following the receipt of the retraction or reply (or within the next issue in cases
of periodicals) or in case of broadcasting “go on air in the same program or series of
programs no later than one month after they were received.” The text of the retraction
or reply can be edited with an agreement of the requester only if “the word count and
length of broadcast of the retraction or reply may damage activities of the mass media
outlet.”
At the outset, ARTICLE 19 notes that the right of reply and related rights are a highly
contentious area of media law since this right represents an interference with freedom
of expression. Some consider them as a low-cost, low-threshold alternative to expensive
lawsuits for individuals whose personality rights (for example to reputation or to privacy)
have been harmed by the publication of incorrect or misleading statements about
them; others regard them as an impermissible interference with editorial independence.
ARTICLE 19 and other bodies, such as the UN Special Rapporteur on Freedom of
Expression, have repeatedly suggested that the right of reply should ideally be voluntary.
Hence, in principle, we recommend that these issues should not be regulated by the
Mass Media Law but left to be dealt with by self-regulatory mechanisms.
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ARTICLE 19 makes the following comments on the scope of Article 34:
–
It is not clear what the difference is between the rights of retraction and the right of
reply. The scope of right to “retraction” is unclear. We note that under comparative
regional standards, these two rights should be distinguished as follows:
–
A right of correction (not “retraction”) should be limited to pointing out erroneous
information published earlier, with an obligation on the publication itself to correct
the mistaken material;
–
The purpose of a right of reply, on the other hand, is to give any person the right to
have a mass media outlet disseminate his or her response where the publication
of incorrect or misleading facts has infringed a recognised right of that person
and where a correction cannot reasonably be expected to redress the wrong.
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These rights should be distinguished accordingly.
–
Although Article 34 states that individuals and entities may demand “retraction” of
“false information damaging their honour and dignity and business republication,”
no specification is provided as for who should prove the falsity of the statement;
while the Uzbekistan Code on Civil Procedure specifies that the burden of proof
in civil matters lies with the claimant. We reiterate that indeed, such onus should
always be on the claimant as otherwise, anyone could make a claim for a retraction,
thereby forcing the media outlets to prove, potentially in a court of law, the truth of
their statements. This could be difficult, for example where the periodical has relied
on confidential sources of information. The claimant should, for the same reason, be
required to show that he or she has a justified interest in the correction;
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Article 34 does not allow for a media outlet to refuse to publish a reply or retraction.
This omission should be amended. The provisions entirely fail to take into account
the overriding importance of open debate on matters of public interest. The
international and comparative standards in this area specifically recognise that
certain legitimate public interests may override both the right to privacy and the right
to reputation. A reply should not be available where the publication of the statement
was justified by an overriding legitimate public interest. Requiring the correction of
false statements of fact is one thing, going beyond this to allow a reply in response
to critical reporting, or reporting which is not deemed to be sufficiently in-depth on
an issue is quite another. This will create a chilling effect inasmuch as editors will
not wish to publish material which might lead to them being required to publish
55
See ARTICLE 19, the Camden Principles on Freedom of Expression and Equality, 2009, Principle 7.
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a correction/reply and thus undermine the free flow of information, contrary to
commitments in this area. A reply should not be available where the publication of
the statement was justified by an overriding legitimate public interest. Furthermore, it
should also be possible to refuse a claim for a correction or reply where a periodical
itself publishes a correction which effectively redresses the harm done.
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