Analysing how law shapes journalism in Central and Eastern Europe: The case of the 2008 Slovak Press Act

The controversy around the Act

The Act superseded a 42-year-old communist press law. During its adoption, the envisioned reply and correction provisions triggered an extraordinary wave of protests. The reply and correction institutes are a means of personality protection comprised in many European press laws. The right of reply is the ‘right of an individual to compel a journal to print his side of a story’ (Danziger, 1986: 171). The right of correction obliges a periodical to ‘disseminate its own statement correcting its earlier statement’ (Youm, 2008b: 1017, fn1).The Act’s opponents did not accept the argumentation of the government of Robert Fico that the Act complied with the standards in advanced European democracies and strived to balance press freedom and personal rights. Journalists, publishers and local and international non-governmental organizations (NGOs) called it undemocratic and unacceptable. The pro-EU opposition members of parliament threatened to sabotage the ratification of the Lisbon Treaty unless wider consensus was reached on the bill. Reminiscent of the ‘media wars’ of former Prime Minister Vladimír Mečiar’s semi-authoritarian era, all national dailies, save one, came out with blank front pages in protest. Summarizing the Act’s seven most disputed stipulations, the newspaper covers read: ‘Reply: The seven sins of the Press Act’ (SME, 2008). ³ The Act’s opponents primarily feared that the provisions would seriously constrain editorial autonomy by ‘flooding’ papers with replies and corrections, particularly from politicians who would gain free and unlimited access to publicity. They also warned against the ‘chilling effect’ on public debate as a result of journalists’ hesitation to publish contentious information triggered by sanctions imposed for rejecting replies and corrections. By systematically examining the operation of the Slovak reply and correction rights and their influence on journalism, this article sets out to investigate whether the fierce protests and fears were justified.

Conceptual framework

Drawing on Cohen and Arato’s (1992) model of civil society, later adopted by Habermas (1996), this article designates a central role for law in modern democracies. Law is a dynamic construct that structures, constrains and enables the behaviour and mutual interactions between social actors, which operate either in the lifeworld or the system (Habermas, 1984, 1987).The lifeworld comprises the familial and public spheres. It functions as a forum of communicative rationality in which individuals and organizations pursue collective development of consensual norms. The system encompasses those self-regulating sectors of society in which decisions are guided primarily by instrumental rationality, involving strategic calculations to achieve their objectives. This dichotomy provides a useful categorization of actors for analytic purposes. It is, however, not ultimate. Since the system remains grounded in the lifeworld context, systemic actors may sometimes act based on communicative rationality. The individuals and organizations within each social actor category can change or become members of a different category, particularly during democratization.

Law is formulated, enacted, interpreted and applied in actors’ mutual strategic interactions. In Habermas’(1996: 81) ideal-typical conceptualization, law is the means by which citizens transpose collectively and democratically agreed values to the economic, political and cultural frameworks structuring their lives. Law becomes ‘a kind of “transmission belt” that picks up structures of mutual recognition that are familiar from face-to-face interactions and transfers these, in an abstract but binding form, to the anonymous, systematically mediated interaction among strangers’ (Habermas, 1996: 448). Law can be subverted by actors in pursuit of their goals. Habermas (1987: 196) admits the possibility of ‘colonisation of the lifeworld’ by systemic instrumentalism. When analysing how laws operate in influencing journalism, it is thus crucial to focus on the interests, alliances and experiences of the different social actors that formulate, enforce and use them. These actors include civil society, the media and political, economic and legal actors. Analytical emphasis on actors’ experiences, besides their interests and alliances, is crucial because the choices actors make are also shaped by their expectations about the behaviour of others based on previous experiences (Howard, 2003).

Civil society, composed of citizens and their voluntary organizations and associations, including labour unions and professional and expert organizations, operates in the lifeworld. It strives to identify the most pressing societal issues, to structure public debate around them, and to communicate them effectively to legislators. Expert organizations may, for instance, try to persuade legislators about the need to adopt a right of reply as an effective means of protecting individuals’ reputation and increasing plurality of opinions in the press (Koltay, 2007: 204). In particular, the right is supposed to support ordinary citizens or ‘small’ persons. They, in contrast to the elites and public figures, do not possess the resources and power to make their voices heard and restore their reputation if unjustifiably attacked in the press. In contrast, other associations might warn against adopting the right of reply because it could constrain editorial freedom and have a ‘chilling’ effect if sanctions for non-publication are involved. In their seminal research, Barendt et al. (1997: 191–192) distinguish between direct and structural ‘chilling effects’. While the former occurs when media outputs are specifically altered or ‘killed’ in light of legal considerations, the latter is subtler, rendering certain individuals and topics off-limits.

Media actors – journalists and the media organizations within which they work – are located between the system and the lifeworld. They are enterprises generating profit by targeting audiences attractive to advertisers as well as ‘watchdogs’ holding governments accountable. The media are not only the main link, or bridge, between other actors, but can also serve the communication needs inside each actor category. Systemic actors may thus attempt to instrumentalize them to promote their own messages. The media are, however, far from being passive channels of communication. As agenda setters and framers of political and economic debates (for example, Dearing and Rogers, 1996), they independently act in their institutional self-interests and actively influence other actors’ interactions.

Pursuing profit maximization, economic actors – firms and entrepreneurs – engage with decision-makers through collective organizations or within clientelistic networks. These informal networks of entrepreneurs, politicians, judges, prosecutors and media owners prevalent in CEE participate in, often non-transparent and corrupt, exchanges of favours with the aim of resource extraction from the state (Örnebring, 2012: 499). To maintain end-markets, economic actors communicate with the public through advertising. They may attempt to get free publicity or to silence negative reporting through the right of reply. In order to promote positive messages about themselves, business elites may also pay for advertorials – that is, advertisements presented as regular news articles. As media owners, they may also smear their rivals through kompromat, which essentially refers to articles that report allegations of wrongdoing, like corruption, by a politician or entrepreneur. Such allegations are usually false and solely based on gossip, innuendo or rumour (Örnebring, 2012: 506–509). Yet, they can severely damage the reputation of the recipient for whom the rights of correction and reply can serve as legitimate means of reputation protection.

The main objective of political actors, including politicians, political parties and various government departments and agencies, is to remain in power. As legislators, they have to balance the competing requirements of the economy and civil society. Politicians may attempt to promote favourable media messages about their conduct and performance and deflect criticism thereof. Backed by civil society, they may, for instance, proclaim the need to introduce a reply right as a means of protecting the reputation of ‘small’ persons. Later, they may attempt to use the provision to gain unlimited, free publicity and constrain negative stories about their conduct in office.

Legal actors ⁴ are crucial when explaining how the operation of laws influence journalism. As Shapiro has argued, judges and, I would add, lawyers do not merely ‘mechanically apply a set of complete, self-explanatory, pre-existing legal rules’. Since the codes are often incomplete and ambiguously worded, they have to invent concrete legal rules (Shapiro, 1981: 155) that shape the functioning of laws. A watershed court decision, imposing a high fine for rejecting the publication of a politician’s reply, may, for instance, trigger over-cautious reporting and excessive litigation. In their decisions, legal actors may pursue their policy preferences or ideology, approval of the legal community, broader institutional legitimacy, career advancement or even resource extraction from the state within a clientelistic network. They may occasionally use the rights of reply and correction to protect their reputation and promote positive and/or constrain negative stories about their conduct.

Actors’ behaviour is further influenced by the structural and cultural contexts of society (Pfetsch, 2004), its international environment and historical developments. The structural context denotes formal legal, economic and political institutions, and the organizational structure in which actors are embedded. The availability of more effective personality protection institutes (whether the aim is to ‘chill’ the press or promote one’s legitimate interest) may influence the use of the reply and correction provisions and the cost-benefit calculations of editors when deciding whether to publish certain stories. Ownership, for instance, influences the level of financial backing of media organizations. As Cheer (2006) argues, in the case of New Zealand, a financially strong press may regard defamation provisions as ‘irksome’ without being ‘chilled’ by them. The same may apply to the reply and correction institutes. Similarly, the level of media market competition may be more important for editorial decisions than the reply and correction provisions. For instance, Barendt et al. (1997: 183) suggest that British tabloids rarely kill or significantly amend potentially defamatory stories because they fear that, otherwise, their competitors would get exclusive coverage. A strong and well-organized civil society may stage protests and consequently stop abuses of law and its constraining of journalism. In his comparative study of defamation laws’ chilling effect on public speech, Kenyon (2010) suggests that the style and level of civil society activism are of particular explanatory power. A post-communist civil society is often deemed weak, plagued by low levels of organizational membership and participation by ordinary citizens (for example, Howard 2003).

The cultural context operates at the level of ‘personal commitment’ and the level of ‘cultural code’ of a given society (Mihalikova, 2006: 188). The former embodies personal values and beliefs, self-perceptions and thought patterns. The latter is subtler, encompassing shared informal norms, values, beliefs, myths and traditions. Informal institutions, defined as ‘socially shared rules, usually unwritten, that are created, communicated, and enforced outside of officially sanctioned channels’ (Helmke and Levitsky, 2004: 727), and the resulting practices like clientelism and corruption, are ‘part of the “operating code” of a national political culture’ (Meyer, 2008: 35). They are often key when explaining the behaviour of systemic actors and the implementation of laws in CEE. The nature of professional values may also explain some aspects of the influence of reply and correction provisions on journalism. Marjoribanks and Kenyon (2004), for instance, have found that in editorial decisions, professional values are often more important than defamation considerations, since editors and journalists decide on the story’s merits rather than on defamation liability.

Actors’ interactions are also influenced by historical and international developments. Transitions not only produce new formal institutions, they also trigger conflicts and confusion about norms and standards of conduct. If, for instance, nation-building is underway during transition, national and social unity may become more important than critical public debate, rendering politicians’ attempts to silence dissonant views and opposition justifiable also in the longer run (Voltmer, 2006: 5). The operation of legal provisions like reply and correction can also be shaped by pressure for legal change or improved implementation by international actors like the European Union (EU).

Hence, an analysis of how particular legislation has influenced journalism in CEE cannot merely focus on the ‘law-on-the-books’. After examining the legislation, it needs to attend to the (changing) interests, alliances and experiences of the actors on which its formulation and operation depends. The constellation of the institutional constraints, cultural trajectories and belief structures, historical developments, and the international environment in which the actors’ interactions take place must also be examined.

Analytical steps and empirical material employed

Addressing the Act’s allegedly undemocratic nature, the article proceeds by conducting a comparative legal analysis of its most controversial stipulations. The Act’s reply and correction provisions, and their doctrinal interpretations and potential for constraining journalism, were analysed in the context of its adoption and compared with those in advanced EU democracies. The analysis employed a wealth of documentary evidence ranging from legal texts, judicial decisions, government documents, media coverage and previous legal research.

The article further attempts to produce a quantifiable picture of the basic characteristics and patterns of the operation of the Act’s disputed provisions by conducting a content analysis of the reply and correction requests received by two national quality dailies – the liberal centre-right SME (We Are) and the financial daily, Hospodárske noviny (Economic News; hereafter HN). Although the Act applies to all print media and news agencies, I selected Slovak-language national quality newspapers for analysis for their rich experience with the provisions and importance for democratization. I requested archival records of reply and correction claims from all three national quality dailies published in Slovak ⁵ – SME, HN and the centre-left Pravda (Truth).The chief editor of Pravda was unable to supply the archival records. The dataset thus comprised the records provided by SME, which distinguished between the types of requests, and the data supplied by HN, which did not. To make the analysis more accurate, I included two additional requests received by SME that were mentioned in previous research which had gained direct access to SME archives (Ondrášik, 2009). As many as 258 individual requests received between 1 June 2008, when the Act came into force, and the end of August 2010 were coded and analysed using descriptive statistics. The analysis focused on the categories of claimants and the incidence, nature and outcomes of the requests. Given that the findings were confirmed by interviews with the chief editor of Pravda and the heads of professional organizations, I am confident about their representativeness.

Like the trends in reply and correction requests, the frequency and outcomes of litigation are also telling with regard to claimants’ motives and the provisions’ potential influence on journalism. A high success rate of media defendants and low awards of pecuniary satisfaction could discourage claimants and minimize their impact on journalism. In contrast, a tendency of courts to offer greater protection to public officials’ reputations and frequent maximum awards could impede investigative journalism (Article 19, 2009). Records of live and settled court cases concerning replies and corrections involving, and provided by, the daily Pravda were thus also examined. Since the courts had reached only a handful of final decisions by the time of the analysis in early 2011, only decision-making trends in other cases involving personality protection in the press were explored using secondary literature and media coverage.

The experiences and perceptions of media professionals about the adoption and operation of the provisions, and how these are influenced by previous interactions between the media and political and economic actors, are also investigated. When analysing their operation, the focus is on discerning possible direct or structural ‘chilling effects’ and other influences on newspaper content and production. Semi-structured interviews with the chief editor of SME, the deputy editor of HN, the managing director of the financial weekly, Trend, ⁶ the head of the Association of Publishers, the chairperson of the Syndicate of Journalists and four media experts, as well as an email interview with the chief editor of Pravda, were conducted in Bratislava in September 2010. Editors were asked whether stories were ‘killed’ or significantly amended, whether any topics or persons were considered taboo because of the Act and whether the quality of journalism had improved after its adoption. The mechanisms adopted to decide the merit of requests, the role lawyers played in the process, perceptions about claimants’ motives, as well as the factors influencing whether the provisions constrained journalism or not, were discussed. In order to gain a comparative perspective, in March 2013, I also interviewed a Czech media expert and a senior editor of a quality national daily in Prague. All interviews were conducted and transcribed in Slovak or Czech and analysed thematically.

The law and its adoption

The Slovak reply and correction provisions deviated from the press laws in advanced EU democracies in one crucial respect that could potentially constrain journalism. Other ‘sins’ of the Act were not unique to Slovakia. The Act stipulated insufficient limitations on the content of replies and corrections. Publishers were not obliged to publish replies and corrections that went beyond denying, complementing, adding detail or explaining the contested factual statement; that contained value judgements; or were disproportionate in length to the original text. They were also able to reject requests that failed to comply with the formal and procedural requirements set by law. ⁷ The Act, however, did not explicitly state that publishers were entitled to reject replies that were contrary to the law, public morals or legitimate interests of third parties. Not allowing the press to reject unlawful replies would constitute a disproportionate burden. Since publishers were liable for the content of replies, under strict interpretation of the law, this could potentially lead to abuse. Moreover, because the Act did not stipulate any restrictions on counter-replies, newspapers could potentially face a chain of replies. There was a lack of relevant judicial decisions and unity in Slovak legal theory on this issue. Whereas some authors (Drgonec, 2008: 297; Kerecman, 2009: 101) argued that the law did not grant publishers the right to reject unlawful replies, others (Vozár et al., 2009: 89) asserted that publishers should refuse to publish replies that went against the legitimate interests of third parties.

The most frequently disputed stipulation of the Act was that it granted replies regardless of whether the offending information was true, false, misleading or truth-distorting. Publishers feared that since every person subject to critical reporting would perceive it as impinging on their reputation, they would be obliged to publish replies to true but uncomplimentary information. This could create scope for abuse and limit editorial freedom. ⁸ The Act, however, only allowed replies to factual statements that impinged upon the honour, dignity or privacy of a natural person or name and good reputation of a legal entity. In contrast to information, which also subsumes value judgements, factual statements are subject to proof. This crucial difference was often lost during the fierce discussions before the Act’s adoption. Since even truthful factual statements may unjustifiably harm one’s privacy, many European democracies define the provisions extensively (see European Commission, 2009).

The Fico government declared that the provisions should primarily serve ‘small’ persons as a remedy against vicious attacks in the press. Yet, the rather formalistic requirements for requests raised questions about the extent to which ‘small’ persons would be able to use them effectively, particularly when similar complex procedures in Germany (Danziger, 1986: 192–193) and the Czech Republic (Sokol, 2010) had hindered them from doing so. The reduced time limit for exercising the rights was also surprising given that experts and practitioners had previously discussed the need for extending it in the interest of ‘small’ persons (Chmelár, 2008, 2013: 70; Drgonec, 1995: 109).

The potential of replies and corrections to constrain journalism must be assessed in the context of the Act’s adoption process and the tense media–politics relations throughout democratization. Soon after the fall of communism, politicians started accusing journalists of an excessively critical and anti-reformist stance and of manipulating the inexperienced masses. While initially constructive, in the nation-building years of the semi-authoritarian, national-populist government of Mečiar, these accusations served as a justification of government support for media that covered its actions favourably (Školkay, 1996). Anti-government journalists and outlets were labelled as the young nation’s enemy, which used any means to spread rumours and eliminate ‘decent’ politicians who were working in the interests of the public. According to an expert, through such denunciations and what was at times encouragement to confront these anti-state elements ‘in the streets’, pro-government media and ruling politicians contributed to profound divisions within Slovak society, which have not been overcome to date. In such an environment, the society has been more willing to accept abuses of law and other attempts to muzzle critical journalism. ⁹ During Mečiar’s rule, such attempts ranged from withdrawal of printing facilities (Brečka, 2002: 71–76) and state advertisements, physical harassment of journalists (Leško, 2007a), switching off transmitters, legislative proposals increasing VAT for ‘commercial publications’ and suing newspapers for libel (Gazda and Kulla, 2011: 137–138) to prosecuting journalists for ‘spreading false information abroad’. ¹⁰

The policies and style of the reformist, pro-EU government of Mikuláš Dzurinda were much closer to the value system of the press. Although investigative reports into the funding of the Prime Minister’s (PM’s) party resulted in libel lawsuits and refusal to grant interviews (Šimečka, 2009), mutual tensions were significantly reduced.

From the outset, the relationship between the press and the Fico government was plagued by mutual suspicion and antagonism. Remembering the ‘media wars’ of the 1990s, the predominantly centre-right leaning liberal press (Šimečka, 2009) was suspicious of Fico’s coalition partner, Mečiar, and their populist pledges to roll back the neo-liberal reforms. The critical coverage of the government’s socio-economic policies and reporting of clientelism and cronyism quickly resulted in the PM complaining of biased reporting of the government’s activities allegedly serving organized interests, verbal attacks on journalists and accusations of their acting as the political opposition (Kužel, 2010). That the administration increasingly perceived press reporting as a problem requiring a solution became apparent in April 2007. Acknowledging the ‘growing number of false, biased and truth-distorting information published about the government’, observing the ineffectiveness of the existing legal instruments and the violations of ‘the fundamental right of the public to access objective information’, the cabinet announced the possible introduction of a statutory reply right in the envisioned Act (Glendová, 2007). Even if it was objectively needed, publishers and political opposition interpreted the Act’s introduction as an effort to ‘chill’ the media and secure favourable reporting of its activities. ¹¹ The press reacted defensively and disputed the necessity of a reply provision given the already existing right of correction (Leško, 2007b). The Act had thus become the centre of a heated controversy even before the bill was drafted.

The adoption process gave rise to further suspicions about the real objectives behind the provisions. Contrary to previous versions, the Press Bill that reached the Parliament in January 2008 omitted several crucial points safeguarding against potential misuse. It failed to stipulate that replies and corrections might only react and be limited to statements of fact as opposed to value judgements. The previously agreed formulation allowing publishers to reject replies and corrections if contrary to law and/or public morals and extending the time for their publication was also omitted. While the wider public was apathetic to the adoption of the Act, its opponents staged a series of protests, involving, among others, the Organization for Security and Co-operation in Europe (OSCE) and the European Commission. Under intense international pressure, the Bill was adopted in Parliament with two deputy amendments that significantly shaped the provisions’ influence on journalism. Replies and corrections became limited to factual statements that ‘deny, complement, add detail to or explain’ the original factual statement. Monetary compensation for unjustified non-publication was limited to 1659.69–4979 euros.

Regardless of the latent intentions of governments, independent courts should safeguard against any kind of misuse of the law. In their decision-making, Slovak courts should follow the jurisprudence of the European Court of Human Rights (ECtHR) and the Slovak Constitutional Court, which have taken a more liberal approach when balancing free expression and protection of reputation. Yet, lower courts have a tendency to treat personality rights as a sacrosanct principle that may not be breached by freedom of speech, particularly when it comes to public figures (Drgonec, 2008: 273). Contrary to the case law of the ECtHR and the Slovak Constitutional Court, they seem not to sufficiently consider the ‘public interest mission’ of the press or whether journalists acted in ‘good faith’ (Školkay et al., 2011: 12). Instead, judges reason that the fact that the injured person is publicly known indicates a serious infringement of their rights and often award high damages (Wilfling and Kováčechová, 2011: 35). Judicial decision-making involving personality protection and free speech is thus inconsistent and unpredictable. In the context of the Act’s adoption, this created room for potential abuse of the reply and correction provisions by public figures that could seriously constrain journalism.

How the law was used

The press was not ‘flooded’ with replies and corrections. Although the number of correction requests increased as compared to the pre-adoption period, the increase was not excessive. ¹² The insufficient limitation on the content of replies and corrections did not prove problematic, since the press was able to reject most of the requests on formal grounds or because they reacted to opinion pieces. Yet, the way in which the provisions were used indicates the elites’ motives.

Out of the 60 requests for reply and/or correction (Figure 1), HN published 24 (40 per cent), rejected 35 (58 per cent), and offered an informal response in one case (2 per cent).

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Figure 1.

Published and unpublished corrections and replies in HN, June 2008–August 2010.

SME received 105 requests for correction and 93 requests for reply (Figure 2). Of these, 20 were simultaneous requests for reply and correction. SME published eight replies (8.6 per cent), and offered an informal response in 11 cases (11.8 per cent). The daily was thus able to reject almost 80 per cent of all reply requests. Of the 105 requests for correction, SME published 26 (25 per cent) and allowed an informal response in five cases (5 per cent).

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Figure 2.

Published and unpublished corrections and replies in SME, June 2008–August 2010.

Members of the general public or ‘small’ persons used the provisions minimally. Politicians, business elites and state authorities were the most frequent and most successful claimants. Of the politicians that claimed a reply or correction in SME and/or HN, fewer than a dozen belonged to the parties that opposed the Act. No visible patterns in terms of the frequency of requests were revealed.

Some 51 per cent of the requests HN received were from politicians, public officials and state authorities; 33 per cent were from entrepreneurs and firms (Figures 3 and 4). In the 27-month period, no request came from a ‘small’ person. ¹³ Among the 16 claimants identified as central government and elected politicians, three belonged to opposition parties. All three requests were published. PM Fico and the Customs Directorate were the most frequent claimants, each submitting three requests. In requesting a correction to an interview, Fico was also one of the first claimants.

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Figure 3.

Reply and correction requests received by HN by claimant category, June 2008–August 2010.

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Figure 4.

Replies and corrections published in HN by claimant category, June 2008–August 2010.

SME received the most correction and reply requests from politicians, public officials, state authorities and entrepreneurs (Figures 5 and 6). Mečiar was the first claimant. He requested a correction to a commentary published the day after the Act came into force. SME was able to reject his claim.

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Figure 5.

Correction requests received by SME by claimant category, June 2008–August 2010.

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Figure 6.

Reply requests received by SME by claimant category, June 2008–August 2010.

Demanding a correction nine times, Fico was the most frequent claimant in SME. Despite publicly pronouncing that he would never use it himself, he also requested a reply. SME demonstratively published his reply even though he reacted to a commentary. Among the claimants for reply were also three opposition politicians – a member of Parliament (MP) and two municipal politicians. SME published one of the replies, rejected one and granted an informal response in the third case.

Requests from ‘small’ persons made 3 per cent of all correction claims and 3 per cent of all reply claims. None of them were published, proving correct the earlier concerns about the provisions’ worth in protecting the reputation of ‘small’ persons in the form in which they were adopted. SME published four replies of politicians, public officials and state and public authorities, and one each of courts, judges and lawyers, publicly known figures, local authorities and officials, and firms or entrepreneurs (Figure 7).

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Figure 7.

Replies published in SME by claimant category, June 2008–August 2010.

How the law influenced journalism

All the interviewees agreed that the influence of the reply and correction provisions did not prove to be ‘totally liquidating’. ¹⁴ Despite the latent intentions of getting free publicity or even muzzling the press apparent from the above analysis, the provisions did not unacceptably constrain editorial autonomy or produce an unacceptable ‘chilling effect’. According to the chief editor of SME, ‘the law has brought some fear’, but the newspapers were able to reject the majority of the requests and ‘have been able to keep a normal, creative working atmosphere’ in the newsrooms. ¹⁵ The chief editor of Pravda, for instance, argued that her decisions on whether and how to publish a controversial article were not influenced by the Act. Further, she asserted that it was the role of journalists to inform their readers and that they could not allow a ‘bad norm’ to interfere with that. ¹⁶ The provisions primarily created an ‘administrative effect’ in terms of the time, effort and financial resources newsrooms had to spend on assessing a request, even though, in most cases, it would eventually be rejected. According to the deputy editor of HN, the press perceived the provisions as ‘unnecessary additional administrative work that leads nowhere’. ¹⁷ Commenting on dealing with requests, the chief editor of SME claimed: ‘Fifty times a year, I had to waste time with something that, in my opinion, was not worth it’. ¹⁸ Thus, the relatively financially strong national papers did not perceive the provisions as exceedingly burdensome or influential on what was published and how. Yet, since they diverted resources from developing stories, the provisions might have impaired the quality of journalistic output.

Newspapers implemented similar procedures for dealing with reply and correction requests. Under the Act, publishers were required to publish justified replies and corrections within three days of the request’s receipt. After receiving a claim, the chief editor would communicate with the outlet’s lawyers and the journalist who wrote the disputed statement, attempting to ascertain whether a mistake had been made and/or whether it was permissible by law. Then the editor or the lawyers would communicate their position to the claimant or their lawyers. Often, they would try to persuade the claimant to withdraw the request or offer them an informal reaction in the Letters to the Editor or opinion sections. A request would mostly be rejected without the claimant taking the case to court. Nonetheless, with the exception of Trend, all the editors confirmed that their papers were party to litigation under the Act.

Proponents of the reply right consider it an effective means to ensure plurality of voices in the press and improve the quality of journalism. Slovak experts and media professionals did not recognize such a positive influence of the provisions. Journalists in HN and SME were offered training based on legal analyses of the Act. Yet, editors were adamant that it had always been a standard practice to approach both parties when developing a story. It only became more formalistic as journalists would now inform the readers if a party refused to comment. Editors underscored that professional journalistic values were more important than the rights of reply and correction in influencing what they published. They agreed that newspapers and journalists make mistakes. They also asserted, however, that when they thought they had made a mistake, they had no problem in publishing a correction, regardless of the Act. Editors concurred that they were happy to publish a reaction to an article in the Letters to the Editors section, on the opinion page or in an interview. Avoiding mistakes and correcting them was perceived as necessary to keep alive the trustworthiness of the press. This was seen as a survival strategy in the ecology of the internet and social media. Editors and publishers also rejected the possibility of kompromat or advertorials.

Given the context in which the Act was adopted, media professionals felt that it was meant to silence critical reporting of politicians’ actions, that the government was ‘looking for a means to chastise commercial media somewhat or get them under control’. ¹⁹ Naturally, they resisted what they perceived as pressure to publish reactions to statements they believed to be correct and became reluctant to publish replies. As the HN deputy editor put it: ‘If we think we made a mistake, we see no problem in publishing a correction. But we see no reason why someone should force us to do it in this way’. ²⁰ Two different approaches towards press freedom clashed during the Fico government’s tenure. The conflict between the libertarian tradition and the more conservative approach of the post-communist elites averse to criticism in the press escalated during and after the adoption process. Journalists and publishers felt that when requesting replies that commented on critical but truthful statements and opinions, high-profile politicians and entrepreneurs attempted to get unlimited access to and ‘chill’ the press. As the chief editor of SME acknowledged, there were objective cases when newspapers were ignorant of justified claims and unwilling to admit their mistakes and when statutory reply and correction were necessary. Yet, he felt that the conflict escalated to such extremes that, from the very beginning, the claimants and the newspapers acted out of spite towards each other. ²¹

In negotiations with their lawyers, claimants interpreted the law leniently so as not to limit replies and corrections to factual statements proportionate in length to the original statements ‘that deny, complement, add detail to or explain’ them. In contrast, after consultations with their lawyers, publishers and editors came to a strict interpretation on the content limits of replies and corrections. Apart from requests that failed to comply with the formal requirements, they rejected requests that contained or reacted to value judgements. As one editor explained, ‘I rejected the majority, 95 per cent, of all requests, and so did my colleagues in other papers, because the claimants made a formal mistake and because I think that the interpretation of the law allowed me to do that’. ²² As a result, they were able to prevent an excessive ‘chilling effect’ and ‘flooding’ of the periodicals with replies and corrections.

The editors cautioned, however, that the conclusions about the influence of the Act were only provisional due to the lack of final judicial decisions involving allegedly unjustifiably rejected requests. There was still a possibility that the courts would rule that publishers were not allowed to reject a request on formal grounds or that a claimant was not precluded from claiming a reply or correction to opinion pieces and commentaries. This could lead to a massive increase in the number of requests, since the claimants would know they were likely to succeed. Respecting court decisions, publishers would be unable to reject the claims and Slovak newspapers could become ‘flooded’ with replies and corrections, as originally feared. Many outlets, regional ones in particular, could face financial difficulties if all the claimants whose requests were rejected were to be awarded the maximum pecuniary satisfaction. ²³ By September 2010, for instance, the courts had reached a single final decision involving Pravda dismissing a claim as unsubstantiated. Yet, the daily figured as a defendant in 18 other lawsuits with claimants typically requesting the maximum pecuniary satisfaction award, totalling approximately 48,100 euros. ²⁴

The uncertainty of media professionals stemmed from their experience with judicial decision-making in matters of personality protection in the press. They felt that the decisions of courts of the first and second instance are biased in favour of politicians and against freedom of speech. They believed that since high-profile politicians, like Fico and the former minister of justice and later president of the Supreme Court, had repeatedly been awarded damages in tens of thousands of euros, the frequency of defamation lawsuits had intensified. The chief editor of SME, for instance, believed that defamation lawsuits against the press became a means of enrichment for politicians and other public figures. The former chief editor of SME even referred to the ‘cartel’ formed by the justice system and the government to silence critical media (Šimečka, 2009).

Media professionals unanimously agreed that these lawsuits influenced what gets published and how much more than the reply and correction provisions. Since there was no damages awards limit with approximately the same proceedings length, all the national dailies were either sued for defamation or threatened with a lawsuit (IPI, 2009). The deputy editor of HN described the experience with defamation threats as follows:

Someone tells you: ‘If you keep writing about that issue, I will sue you’. This is usually a way of psychological blackmail … The journalist probably knows that he is right about what he wants to write, but he has a subconscious tendency to write about it in a slightly softer way in case the outlet gets sued. He can say to himself that he may win the lawsuit, but he would be dragged through courts for ten years. That is nothing pleasant. ²⁵

The Slovak press were mostly positive about eventual success in defamation cases before the ECtHR. Yet, editors were concerned that if journalists saw that their articles resulted in high damages awards, there would be ‘a high probability that at a point in time they would start self-censoring and making concessions just to avoid similar trouble’. ²⁶

Conclusion

In the case of the reply and correction provisions of the 2008 Slovak Press Act, I have argued that the ‘law-on-the-books’ only partially explains how legislation influences journalism in Central and Eastern Europe. Although the complex formal requirements stipulated by the Act account for their marginal use by ‘small’ persons, its potentially undemocratic failure to limit the content of replies hardly influenced what Slovak newspapers published. The operation of the provisions only partially confirmed the fears of its critics. Their adoption and use by political and economic actors suggest latent intentions of getting free publicity or even ‘chilling’ the press. Nonetheless, they did not unacceptably constrain editorial autonomy or produce an excessive ‘chilling effect’. Instead, they created an ‘administrative effect’ that was not considered as exceedingly burdensome or influential for newspaper outputs. By diverting time and resources from developing stories, they may, however, have contributed to the decreasing quality of journalism. Besides ‘chilling effects’, future research into the influence of legislation on journalism should thus further investigate these ‘administrative’ effects.

Legal texts apart, the Slovak experience strongly suggests examining the relationships between the media and other social actors, particularly political and economic elites, when investigating how legislation can constrain journalism in CEE. The marginal influence of the reply and correction provisions on newspaper content seems to have primarily been shaped by the clash of interests and values between the Fico government and the press and its escalation during the adoption process. Editors fervently resisted publishing replies and corrections because they, and apparently also a large section of the claimants, perceived them as an attempt to get free publicity and pacify the papers. Given the experience of previous attempts at muzzling critical media, publishers initiated a massive opposition campaign against the Act, involving parts of civil society and political opposition. The enormous pressure contributed to the changes in the provisions shortly before the Act’s adoption, which enabled publishers to reject most claims.

The Slovak case also demonstrates some of the ways in which the structural, cultural, international and historical contexts can shape these relationships. Given the ownership and resulting relative financial strength of the Slovak national dailies, the resources spent dealing with reply and correction claims were not such overly excessive items in their budgets as to trigger over-cautious reporting. The operation of the reply and correction provisions also showed that professional journalistic values and self-perceptions, rather than consideration of legal liability, inform editorial decisions about what to publish and how. The international context, particularly the pressure the OSCE and the EU put on the government, was probably even more important than the domestic opposition campaign in watering down the provisions. The apathetic stance of the broader public during the Act’s adoption can most likely be traced to the turbulent nation-building times that rendered media legislation abuses more socially acceptable. The findings of this research also suggest that operation of laws is shaped by the availability of more efficient means for achieving actors’ goals. Rather than using reply and correction provisions, politicians and entrepreneurs opted for civil defamation with larger damages awards and a consequently greater ‘chilling’ effect.

Lastly, the experiences of the Slovak press reveal the crucial role of judicial decision-making in shaping the operation of laws and their influence on journalism. Comparison with the Czech Republic makes this even more apparent. Although identical defamation provisions apply, Czech journalists perceive their ‘chilling effect’ nowhere as acutely as their Slovak counterparts. According to one commentator, decisions of Czech courts shortly after Czechoslovakia’s division in the early 1990s helped safeguard against abuses of defamation provisions by politicians. ²⁷ Investigating the structural, cultural and historical factors influencing judicial decisions is beyond the scope of this article. Such investigations seem, however, central for explaining how and why laws shape journalism and should be taken up by future research.

In short, the findings of this article imply the desirability of examining other factors apart from legal texts, if we want to better understand how laws influence media content in CEE. The interests and relationships between the media, civil society, judges and the political and business elites set in their historical, structural, cultural and international contexts need to be attended to. These interactions also explain why media legislation change in the region is often accompanied by robust protests, even if the laws seemingly comply with democratic standards. The Czech press, for instance, also protested against the reply and correction provisions proposed without public discussion by the cabinet of Miloš Zeman (Sokol, 2010), who is infamous for his contempt for journalists. The Hungarian media vigorously opposed the policies of both Viktor Orbán’s governments that apparently strived to gain favourable media coverage and silence critical reporting (see Bajomi-Lázár, 2002; Tóth, 2012).