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Press Council case against Independent Media will have implications for all opinion writers

Anton Harber
By Anton Harber
22 Jul 2024
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The antics of Dr Iqbal Survé’s Independent Media will come under further scrutiny at the Press Council this week.

News24 journalist Karyn Maughan’s case against Independent Media will put the newspaper group in the spotlight for the second time in a week and provide an important test of when news commentary crosses a line into gratuitous insults and harm that should not be allowed in our newspapers. It will be a case watched by analysts and commentators who take swipes at those they write about, and the politicians and others on the receiving end of those swipes.

It has been a challenging week for Survé’s editorial staff. After a press conference in which they teamed up with ANC politician Lindiwe Sisulu to unmask the anonymous social media commentator “Goolam”, they had to issue a grovelling apology because, they said, they had named the wrong person through a “technical error”. The comedian they wrongly fingered is now suing them for R2.5-million and it is hard to see how they can avoid settling with him.

This comes only a few months after they were forced by the high court to apologise to Daily Maverick for claiming that this publication had orchestrated and sponsored a fake news smear campaign against Survé and other businesspeople and politicians. Survé’s editors “unconditionally retracted and apologised” to DM. It was reminiscent of the farcical Tembisa decuplets story of 2021, though that one never elicited a retraction or apology.

Now their journalistic credibility will again be tested at a hearing of the Press Council, the self-regulatory body that oversees print and online journalism. 

At issue this week is an opinion piece by what appears to be a non-existent writer named Edmond Phiri who said Maughan was “South Africa’s Leni Riefenstahl — the Nazi film propagandist”, a fraud, an apartheid-style agent and a racist. This was defamatory, unsubstantiated and beyond the bounds of fair and reasonable comment, Maughan’s lawyers are arguing.

They say it breaches the Press Code, which says journalists must “exercise care and consideration in matters involving dignity and reputation” and this may only be overridden if it is “in the public interest” and based on “facts … which are either true or reasonably true”.

Survé’s lawyers argue the article was commentary rather than reporting and the Press Code gives more scope for comment. “Comment or criticism,” the code says, is protected even if it is extreme, unjustified, exaggerated and prejudiced, as long as it is without malice, is on a matter of public interest, has taken fair account of all material facts .... and is presented in a manner that it appears clearly to be comment”.

Surve’s lawyers concede that the article includes “rhetorical devices and hyperbolic comparisons”, “literary flourishes in an opinion piece … used to express the sincerely-held belief that Ms Maughan’s reporting is biased”. But, they argue, while “strongly worded … they are clearly presented as opinions based on interpretations of publicly available information”.

When does comment cross the line?


There is little doubt that this commentary was “extreme, unjustified, exaggerated and prejudiced”, and arguably in the public interest, as Maughan is a well-known journalist. So the Press Council will have to decide if was without malice and based on facts.

It is a basic principle that commentary should be left as free as possible, even if it is offensive and hurtful, and those of us who value the free flow of information and opinion want to see — and would not like to be prevented from seeing — opinions that we consider wrong, upsetting and rude. Our society is a tough one with deep divisions, so it is important that we not be oversensitive and that we allow for robust exchanges.

Journalists are public figures who criticise others, so they must be prepared to face tough criticism themselves. But when does it cross the line into something so malicious and harmful, so untrue, that it needs to be restricted? That is the hard choice the Press Council will need to make in setting standards for what is acceptable and what conduct needs to be banned from news media.

I have faced this dilemma from time to time. Survé has accused me of censorship and terrorism, among other delightful things. I chose to ignore it, sometimes demanding only a right of reply. But when Julius Malema said I was “Stratcom”, an agent of the apartheid-era dirty tricks squad, I sued (and won).

The Press Code’s phrase that the opinion should be without malice is not particularly helpful. In a legal sense, malice means it was done with the intention to break the law, or in this case to defame or cause harm. But, in journalism, we sometimes have to write things knowing they might have this effect, but we do it in the public interest and to hold the powerful to account. There is no clear line between when this is justifiable or not, or when it is opinion or fact.

One intriguing element is whether Phiri exists. Attempts by journalists to identify or locate him have proven futile, as many people inside the newspaper group do not know this person. Maughan’s lawyers say they have reason to believe it is a pseudonym used by one or more people.

A News24 investigation concluded that Phiri was “a mere persona controlled by a hidden hand … and he works at the behest of Survé”. It was, they reported, part of a Survé “public relations war, using a team of pliant journalists, PR staffs and seemingly fictitious opinion writers to polish his image and attack journalists critical of him”.

In its legal papers, Independent Media skirts around this. It does not assert that there is such a person, only that Maughan has provided no concrete evidence that it is a pseudonym for someone linked to them.

Hiding like this behind anonymity signals a reluctance to take responsibility for what Independent Media publishes and a presumption that this gives it the scope to say what it likes about its critics. If it was a sincerely held opinion based on fact, then why hide the author’s name? If it is a pseudonym for Survé or those who carry out his instructions, then it will strengthen the case that there is malice.

The Press Council will have to tread carefully, as these are issues with implications for all opinion writers. DM

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