Understanding the hard-hitting Press Council ruling against Iqbal Survé’s newspapers

Edmond Phiri exists. Or at least that’s what we are told. But when asked in a recent virtual hearing of an adjudication panel of the Press Council to turn on his camera, Phiri “said that the desktop computer he was using did not have a camera”. When asked “whether he could at least briefly use his mobile phone to show himself, he said he did not have data”.

It is not at all clear whether the dog also ate his homework.

It was Phiri’s article – “Is Karyn Maughan South Africa’s Leni Riefenstahl – the Nazi Film Propagandist?” – that was the focus of the virtual hearing at which Phiri may or may not have appeared.

In their complaint about the article that was first published in the Sekunjalo-owned Sunday Independent on 3 March 2024, News24 and Maughan alleged two separate breaches of the Press Code: clause 3.3, read with clause 7.2; and clause 2.1.

Clause 3.3 requires the press to “exercise care and consideration in matters involving dignity and reputation”, with clause 7.2 effectively recognising the defamation law defence of fair (or protected) comment.

In terms of clause 2.1, the media “shall… not allow commercial, political, personal or other non-professional considerations to influence reporting, and avoid conflicts of interest as well as practices that could lead readers to doubt the media’s independence and professionalism”.

Both aspects of the complaint were upheld by the panel in its ruling on 6 August 2024, with the Sunday Independent and all other Sekunjalo-owned titles that published the article being directed to retract it and apologise to Maughan. The article had been promoted on social media, and presumably also published by IOL, Pretoria News, The Star, Mercury, Daily News, Cape Times and Cape Argus, as well as by Iqbal Survé, Sekunjalo’s chair.

Read the adjudication panel’s ruling.

In addition to the two substantive issues, to which we return below, the panel had to consider two procedural points: first, whether the complaint ought to have been accepted; and second, the nature and extent of the role to be played by Media Monitoring Africa (MMA), which had also lodged a complaint, but was admitted as amicus curiae (friend of the court/panel). MMA describes itself as “a nonprofit organisation aiming to be ‘Africa’s pre-eminent [media] ‘watchdog’”.

On the first procedural issue, the panel found “the objections raised as excessively technical ones that are at odds with the letter and spirit of the [Press Council] process”. The complaint had first been directed at IOL, which claimed it had wrongly been cited, as the article had been published first by the Sunday Independent. It, in turn, refused to entertain the complaint, because it was addressed to IOL. By the time an updated complaint was sent through, Sunday Independent claimed it was out of time.

On the second issue, the panel had to consider Sunday Independent’s objection to MMA’s participation on two grounds: first, that “the matter was between two parties and adding another party did not ‘sit very well’”; and second, that MMA “sought to widen the ambit of the complaint and were not relevant”. The panel resolved this procedural issue by admitting MMA as amicus curiae, limiting its participation to “addressing points made in the main complaint”.

Insofar as the first complaint (“exercise care and consideration in matters involving dignity and reputation”) is concerned, the panel noted that a failure to fall within the protection offered by clause 7.2 does not, on its own, constitute a breach of the Press Code. Rather, it simply opens the door to considering whether a provision such as clause 3.3 has indeed been breached. In this case, the panel found that the article couldn’t rely on the safe harbour provided by clause 7.2, because – as comment – “it did not take adequate account of the facts”.

Despite noting “that comment writers should be given latitude to develop their arguments and are allowed to use hyperbole and other devices to make their case”, the panel nevertheless found that the article could not rely on the protection offered by clause 7.2 because of the breadth and severity of the attack on Maughan, which was based upon “the thinnest of foundations”. Even a self-commissioned report, “which purported to identify bias in Maughan’s reporting over five years”, could not assist.

Without the protection of clause 7.2, it was always going to be difficult for the article not to be seen as in breach of clause 3.3. Importantly, the article was not considered in isolation, but rather in light of the manner in which it was promoted online, including by Survé himself, as well as in the context of “the well-known history of gender-related abuse directed at Maughan and other female journalists online”. In their view, the article represented “a torrent of unsubstantiated abuse”.

It was in dealing with the second complaint that the panel considered Phiri’s identity. Noting that they did “not have conclusive evidence that the byline is a pseudonym”, they “proceed[ed] on the basis that the person… [they] heard was the author, an occasional contributor to Independent titles”. In large part, this appears to be based on the recognition that “answerability for publication rests with the proprietor, who is represented by the editor”. In short, you publish at your peril.

Finding in favour of the complainants, the panel made a number of devastating findings in respect of various editorial decisions taken by the Sunday Independent and its sister titles. In particular, the panel found that the newspaper “allowed corporate interests to influence its editorial decision to publish the column at issue, creating a conflict of interest that breaches clause 2.1”.

Put simply, Sekunjalo-owned publications are being used by their editors to advance Sekunjalo’s corporate interests.

On 8 August 2024, just two days after the panel’s ruling was issued, Sekunjalo-owned “Independent Media… slammed the SA Press Council ruling in favour of a complaint made by News24 and journalist Karyn Maughan against an opinion piece by Edmond Phiri”, characterising it “as a ‘serious misstep’ endangering press freedom and revealing the Press Council’s systematic prejudice”. If an application for leave to appeal is to be made, as expected, this should happen by 16 August 2024. DM

GroundUp publishes the Ombud Watcher column to inform the public about Press Council rulings. The editor of GroundUp takes full responsibility for the content of this column.

First published by GroundUp.