The proportionality of limits on freedom in the light of norms regarding a more effective protection of the right of response
Confirmation of legislative act
Freedom of the press
Right of response
Right to good name
RULING Nº 13/95
25 of January of 1995
The President of the Republic cannot apply to the Constitutional Court for preliminary review of the constitutionality of a law which he has vetoed and which the Assembly of the Republic approves on a second reading unless the law is amended during the second reading or unless grounds for such review become apparent after the veto.
The Constitution guarantees freedom of expression, of information and of the press and entitles journalists to access to information, protection of their independence, and confidentiality. It also recognises everyone's right to his or her good name and to protection of privacy and family life. The Act must therefore assert and safeguard both freedom of and freedom vis-à-vis the press.
Under the Constitution the right of reply and to rectification of misinformation derive from the right to reputation, and its purpose is to protect the individual's personal rights and to secure the adversariality and plurality of information in society, which are likewise enshrined in the Constitution.
Having exercised his right to veto a first version of a law amending the Press Act, the President of the Republic applied for a preliminary review of a new version of the law because he had doubts about the constitutionality of the following changes to the Press Act:
- restriction on newspapers' right to refuse to publish replies;
- prohibiting newspapers from adding notes or comments to a reply;
- increasing the fine for newspaper contraventions of the right of reply.
These changes purported to protect the right of reply more effectively. The question was whether the restrictions on press freedom were not disproportionate.
The Constitutional Court did not find the provisions to be unconstitutional but in each case there were dissenting opinions.
The Court based its decision mainly on two considerations. Firstly it took the view that restricting the cases in which newspapers may refuse to publish a reply was not a disapportionate restriction on press freedom or editorial freedom, and derived from the Constitution's recognition of all natural and legal persons' right of reply. Secondly, it held that the effective safeguarding of the right of reply required the availability of penalties of some severity.
The President of the Republic challenged the decision on the ground of the deliberation procedure, but in judgment no. 58/95 of 16 February 1995 the Court confirmed its previous judgment, ruling that, on each issue put before it, an unconstitutionality decision by the Court required a majority vote both on the decision itself and on its legal basis.