Did The Press Ombud Get It Wrong? And If So, How Badly?

Did The Press Ombud Get It Wrong? And If So, How Badly?
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"Don't be a doos be lekker" is apparently the life philosophy of Marius Roodt aka Shelly Garland, the "Huffington Ghost" in the words of Tom Eaton, who played a real live game of "gotcha!" with the Huffington Post. He sent them his spoof blog entitled "Could It Be Time To Deny White Men The Franchise?" and, unfortunately (for him, for the Huffington Post, for editor Verashni Pillay, for the Press Ombud and for all of us) won.

Roodt was the first to resign as a result of the blog which was picked up by the Huffington Post, a resignation that was obviously accepted with alacrity by his employer, The Centre for Development and Enterprise, judging by its statement saying that it was committed "to promoting facts in public discourse and will not be party to any undermining of the integrity of media institutions". Quite.

Marius Roodt, clearly, did not follow his own life philosophy. He is also a man who is not in the media. He is not a journalist, a columnist, or an editor. He is a guy who, thanks to social media (and the Huffington Post SA), found his "voice" massively amplified when it shouldn't have been. He deliberately set out to deceive a media house to prove a point about "the lack of fact-checking in journalism". He succeeded massively.

As everyone knows by now, Laura Twiggs is the journalist who smelled a rat and found out that Shelly Garland didn't exist. Tom Eaton picked it up and soon the Huffington Post SA realised it had been had and the blog was taken down. But not soon enough. Because in between the outrage generated by the blog and the discovery of the Ghost, Verashni Pillay, its editor, did real damage to herself and the publication, in defending the blog as a genuine piece of political commentary by "an activist and feminist".

In a bruising assessment of the affair, Franz Kruger, director of the Wits Radio Academy and former public editor of the Mail & Guardian, wrote in a blog that "it demonstrated an attitude that the hunt of traffic reigns supreme, overshadowing editorial standards".

The Press Ombud, Johan Retief, went much, much further. Responding to three complaints laid, including one by Ernst Roets on behalf of AfriForum, he made the following (summarised) findings:

  • That The Huffington Post published text that was discriminatory and denigratory and amounted to hate speech and that this was a violation of two articles of the SA Code of Ethics and Conduct applicable to press and online media members of the Press Council:

5.1 Except where it is strictly relevant to the matter reported and it is in the public interest to do so, the media shall avoid discriminatory or denigratory references to people's race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth or other status, not shall it refer to people's status in a prejudicial or pejorative context" (note, these grounds mirror those set out in the equality clause of the Constitution) and

5.2 The media have the right to report and indeed the duty to comment on matters of legitimate public interest. This right and duty must, however, be balances against the obligation not to publish material that amounts to propaganda for war, incitement of imminent violence or the advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm. (Note this wording is taken from section 16(2) of the Constitution which sets out the type of expression that is not protected under the right to freedom of expression").

  • That the piece did not amount to fair comment under clause 7 of the Code, that it was malicious, not in the public interest and contained numerous factual errors
  • That the Huffington post did not adhere to his commitment "to the highest standards, to maintain credibility and keep the trust of the public" as required in terms of the Preamble to the Code
  • That the piece impaired the dignity and reputation of white males in violation of clause 3.3 of the Code
  • That these breaches constituted serious misconduct on the part of the Huffington Post.

The Press Ombud directed the Huffington Post to "apologise unreservedly" to the general public.

Within a very short time the Huffington Post did just that and within a very short time after that, Pillay resigned.

The key issue that had Twitter up all night on Saturday was whether or not the Press Ombud had made grave errors of law and fact in finding that the blog amounted to hate speech. Heavy weight lawyers, journalists and at least one former editor opined that the ruling ought to be appealed or reviewed.

In my view, a ruling such as this made by the Press Ombud can be appealed only by one of the parties to it, in terms of Press Council's Constitution. I very much doubt that any of the complainants will appeal (they succeeded after all and are doubtless extremely happy). Can the Huffington Post appeal? Phew, pretty hard to do so now given that it accepted the ruling and issued the required unreserved apology almost straight away and that its editor, saying she "respects the office of the press ombudsman", resigned forthwith. If the Huffington Post thought the Press Ombud had got it so spectacularly wrong, it ought to have appealed immediately and not acted in accordance with the ruling.

So where does that leave the many members of the public and the media who clearly feel that this was a case of a black woman editor unfairly hounded out of office?

In law, I think there is only one option and that is for someone to take the ruling by the Press Ombud on review in terms of the Promotion of Administrative Justice Act, 2000. Actions by officials of self-regulatory bodies such as the Press Council (and by extension the Press Ombud) do constitute "administrative action" and, in terms of section 33(1) of the Constitution, "everyone has the right to administrative action that is lawful, reasonable and procedurally fair". What does this mean? When will a court review and set aside a ruling of the Press Ombud? The administrative justice rights in the Constitution are given effect to through the Promotion of Administrative Justice Act and section 6 thereof empowers a court to judicially review administrative action on a number of grounds, including, if the action was materially influenced by an error of law – S6(1)(c).

Judicial review is not about an administrator making a mistake or about the court arriving at a different conclusion based on the same facts. There has to be a serious concern about the process of decision-making itself and not only about the decision unless that decision is, itself, unreasonable, unconstitutional or unlawful.

I am not going to deal with all the issues raised in the Press Ombud's ruling. Instead I want to focus on the most controversial one in my view, namely, the finding that the Huffington Post was guilty of hate speech. If the Press Ombud made an error of law in determining that what the Huffington Post published amounted hate speech, then I think this ruling, or at least that part of it, can be reviewed.

In my view, the Press Ombud made a hash of his reasoning on the hate speech issue by relying on what appears to have been a blogged opinion piece by one Mercy Muendo of the Mount Kenya University published in The Conversation. In my view this was a grave error. It led the Press Ombud to, incorrectly, conflate the tests for 5.1 i.e discriminatory and denigratory speech with 5.2 the unprotected speech grounds, which include hate speech as well as incitement to violence.

Why the Press Ombud relied on the blog of an academic writing on Kenyan, not South African, laws is beyond me. It is a basic error. In my view, he ought to have relied on the recent rulings of the highest court in our own country, the Constitutional Court, ruling (unanimously) on a number of rulings on the meaning of the hate speech provision contained in section 16(2)(c) of our own Constitution.

This was done as recently as six months ago in SARS v CCMS and Others, where the Chief Justice Mogoeng Mogoeng ruled that the use of the word "kaffir" in the work place amounted to hate speech. The Constitutional Court cited Zondo J in Crown Chickens (Pty) Ltd t/a Rocklands Poultry v Kapp (2002) with approval: "The attitude of those who refer to, or call, Africans "kaffirs" is an attitude that should...be rejected with absolute contempt by all those in our country – black and white – who are committed to the values of human dignity, equality and freedom that now form the foundation of our society. In this regard, the courts must play their proper role and play it with the conviction that must flow from the correctness of the values of human dignity, equality and freedom that they must promote and protect...(at para. [54] of the SARS judgment).

Now clearly, in this case we are not dealing with the word "kaffir" but we are dealing with a publication that expressly called for "the denial of the vote to white men for 20 years (just less than a generation)" and said "[l]ets be clear, it may be unfair but a moratorium on the franchise for white males for a period of between 20 and 30 years is a small price to pay for the pain inflicted by white men on others".

The Press Ombud was eviscerating: "Let me be short and sweet: If disenfranchisement of anybody (whether white males or black females, for that matter) is not discriminatory, the meaning of discriminatory needs to be refined". But, as I said, the Press Ombud went on to make a hash of his reasoning for the hate speech finding, setting out a test for hate speech that doesn't exist in our Constitution and that included whether or not the audience is "likely to react violently" which our highest court has not stipulated.

Our Constitutional test for hate speech is set out in section 16(2)(c) of the Constitution and is as follows: "Advocacy of hatred that is based on race, ethnicity, gender or religion and that constitutes incitement to cause harm".

In Islamic Unity Convention v the IBA and Others (2001), the Constitutional Court (also unanimously) set out the rationale and role of the hate speech provision as follows (citations omitted):

[32] How is section 16(2) to be interpreted? The words "[t]he right in subsection (1) does not extend to . . ." imply that the categories of expression enumerated in section 16(2) are not to be regarded as constitutionally protected speech. Section 16(2) therefore defines the boundaries beyond which the right to freedom of expression does not extend. In that sense, the subsection is definitional. Implicit in its provisions is an acknowledgment that certain expression does not deserve constitutional protection because, among other things, it has the potential to impinge adversely on the dignity of others and cause harm. Our Constitution is founded on the principles 27 of dignity, equal worth and freedom, and these objectives should be given effect to.

[33] Three categories of expression are enumerated in section 16(2). They are expressed in specific and defined terms. Section 16(2)(a) and (b) are respectively concerned with "propaganda for war" and "incitement of imminent violence". Section 16(2)(c) is directed at what is commonly referred to as hate speech. What is not protected by the Constitution is expression or speech that amounts to "advocacy of hatred" that is based on one or other of the listed grounds, namely race, ethnicity, gender or religion and which amounts to "incitement to cause harm". There is no doubt that the state has a particular interest in regulating this type of expression because of the harm it may pose to the constitutionally mandated objective of building the nonracial and non-sexist society based on human dignity and the achievement of equality. There is accordingly no bar to the enactment of legislation that prohibits such expression. Any regulation of expression that falls within the categories enumerated in section 16(2) would not be a limitation of the right in section 16.

I think it is clear that the piece written as a spoof by Roodt but published as serious commentary by the Huffington Post is not "propaganda for war" or "incitement of imminent violence". So, is it hate speech? Some have argued that there is no advocacy of hatred. In my view, there does not need to be an active call to hate for the advocacy of hatred to exist. Indeed as the Constitutional Court has already ruled the use of the word "kaffir" in a workplace context will, without more, ordinarily amount to hate speech and so, by definition, amount to the advocacy of hatred.

What about incitement to cause harm? On this I think the Press Ombud is are on much firmer ground. The right to vote is at the heart of our new Constitutional Order. It was one of the foundational rights (along with dignity and equality) that was denied under Apartheid. Black people being denied the franchise was what the Apartheid state was built and maintained on. Our Constitution, rightly, makes the protection of the right to vote, including of white men, foundational to our new constitutional order. Indeed the very first section of the Constitution includes the following:

"The Republic of South Africa is one, sovereign, democratic state founded on the following values:

(a) Human dignity, the achievement of equality and the advancement of human rights and freedoms

(b) Non-racialism and non-sexism

(c) Supremacy of the Constitution and the rule of law

(d) Universal adult suffrage....".

Being denied the right to vote is, clearly and unambiguously, harmful. In another unanimous judgment, the Constitutional Court in August and Another v the Electoral Commission and Others [1999] (a case dealing with the voting rights of awaiting trial and convicted prisoners) found that "Parliament...cannot deprive any prisoner of the right to vote" (at para [33]). But the more important part of the ruling is on the basic principles of the right to vote and is set out in paragraph [17]:

"Universal adult suffrage on a common voters roll is one of the foundational values of our entire constitutional order. The achievement of the franchise has historically been important both for the acquisition of the rights of full and effective citizenship by all South Africans regardless of race, and for the accomplishment of an all-embracing nationhood. The universality of the franchise is important not only for nationhood and democracy. The vote of each and every citizen is a badge of dignity and of personhood. Quite literally, it says that everybody counts. In a country of great disparities of wealth and power it declares that whoever we are, whether rich or poor, exalted or disgraced, we all belong to the same democratic South African nation; that our destinies are intertwined in a single interactive polity."

Being denied a right is to be harmed. It is what the whole horror of Apartheid is built on: denying people, based on their race, their fundamental human rights, especially the right to choose a government of their choice. Consequently, calling for a sizable portion of the population (about 4.4%) to be denied the right to vote for a period of 20 to 30 years on the basis of race and gender (being white men) is to incite harm.

I cannot believe that any court will find a call to deny white men the vote for a period of 20-30 years anything other than race and gender-based hatred that constitutes the incitement to cause harm, that is, hate speech. The Press Ombud should have taken a lot more care about the legal bases for his findings of hate speech and yes, his reasoning is muddled, confusing and in certain respects, plain wrong. But was the ultimate decision "materially influenced by an error of law" in other words, was this an incorrect finding of hate speech on the basis of his woolly arguments?

In my view? Not. And so I think it unlikely that a review of the decision would be successful.

Again, I would quote our Chief Justice on behalf of a unanimous court in the Sars case (at para [12]):

"The Constitution is the conscience of the nation. And the courts are its guardians or custodians. On their shoulders rests the very important responsibility of holding our constitutional democracy together and giving hope to all our people that their constitutional aspirations will be realised. To this end, when there is litigation about racial supremacy-related issues, it behoves our courts to embrace that judgment call as dispassionately as the judicial affirmation or oath of office enjoins them to and unflinchingly bring an impartial mind to bear on those issues, as in all other cases."

So where to from here?

As a person who is concerned at the ever-quickening drum-beat of the threat of state regulation of the media and of the increasing attacks on the press, I stand four square behind effective self-regulation. And if the Press Ombud has got it wrong, then its ruling ought to be appealed against or taken on review. But, if the Press Ombud has got it substantially right (and I think he has in this instance) then losing such an appeal/review, particularly in a court of law, would be devastating for the credibility of the media. This finding by the Press Ombud is bad enough. Imagine the political capital that will be made of a court confirming the essence of the Press Ombud's ruling on hate speech, discriminatory and denigratory speech, incorrect facts, malicious publication and the general failure to adhere to the Code?

There were just too many systemic failures by the Huffington Post in this debacle and its editor, to her very great credit and this is an example to our society as a whole, has fallen on her sword for it and resigned. The media needs to learn, urgently, from this and think very hard about the perils of adopting and publishing random unsolicited user-generating content as its own without the normal checks and balances that would apply to its own in-house reportage or commentary.

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