Independent Media’s expulsion: A stand for responsible journalism

This week, the Independent Media group of newspapers was expelled from the Press Council of South Africa (PCSA) after it refused to comply with two rulings.

The rulings found that opinion pieces had transgressed the wide boundaries within which the freedom to express one’s opinion is protected.

One piece labelled News24 journalist Karyn Maughan a fraud, an apartheid-style disinformation agent, and a racist.

Another described Gillian Moodie as a propaganda journalist, a member of a white boys’ club, a DA plant in its newsrooms and a racist.

Neither of these articles were fact-based, which is one of the requirements rendering an opinion fair and justifiable.

ALSO READ: Where in the world is Goolam?

The other requirements are that the comment must be of public interest, not be misrepresented as fact, and without malice.

While the boundaries drawn by SA’s constitution, SA courts, the law and the press code are wide, they are clear.

By enforcing them the Press Council protects the right to freedom of expression from abuse, thereby safeguarding it.

The Moodie complaint

Independent Media was a founding member of the Press Council, but left in 2016 after the council abandoned a waiver in terms of which complainants agreed not to go to court if they instituted a PCSA complaint.

The departure came shortly after the ombud found that one of their articles breached, among others, clause 3.3 of the code, which requires the media to exercise consideration in matters involving the dignity and reputation of individuals, in this case the journalist, Moodie.

ALSO READ: WATCH: Independent Media apologises for naming wrong man as Goolam after legal threat

The ombud ordered Independent to apologise to Moodie for “unfairly, and without any proper substantiation or proof, labelling her as a propaganda journalist, a member of a white boys’ club, a virtual plant of the DA in its newsrooms, a racist and for making allegations against her of malice, aspirations to maintain white control and collusion.

The group also accused her of misinformation and sabotage against [Independent Media], its executive chair, associated companies and all its employees.

Independent was granted leave to appeal against the sanction, but left the council without pursuing the appeal – and without apologising to Moodie.

When Independent rejoined the Press Council this year, Moodie requested compliance with the ombud ruling. Independent refused to apologise.

The Maughan complaint

In March this year, shortly after rejoining the Press Council, Sunday Independent and IOL published a column entitled “Is Karyn Maughan South Africa’s Leni Riefenstahl – the Nazi Film Propagandist?” The body of the article amplified that comparison, and also accused Maughan of being a fraud, an apartheid-style disinformation agent and a racist.

ALSO READ: Man accused of being behind Goolam demands apology from Sisulu and Independent Media

Deputy ombud Franz Krüger, assisted by two adjudicators (law professor Karthy Govender and veteran journalist Joe Thloloe), ruled that the comparisons and accusations in the article were not based on facts that were true or reasonably true and thus could not amount to protected comment.

The article contravened clause 3.3, and Independent was ordered to apologise to Maughan and remove it from IOL.

Appeals panel chair retired Judge Bernard Ngoepe refused leave to appeal. In response, Independent Media refused to comply with the ruling and accused the Press Council of being corrupt, biased, racist and akin to an apartheid censorship body.

Why was Independent Media expelled?

Compliance with ombud and appeals panel rulings is a compulsory condition for Press Council membership. Independent Media was expelled for refusal to comply with a ruling.

What is protected comment?

Independent Media’s defence to the Maughan complaint was that, if an opinion is presented as an opinion, anything goes. This is not what the law or the press code says.

ALSO READ: National Press Club calls on Independent Media to honour employees severance agreements

While Section 16 of the constitution entrenches the right to freedom of expression, Section 10 guarantees the right to human dignity. And Section 36 states that any right may be limited to an extent that is justifiable in a democratic society.

In Khumalo v Holomisa, the Constitutional Court found that SA’s common law of defamation, and the defences embedded in it, strike a constitutionally appropriate balance between free speech and dignity.

One such defence is known as fair comment. It permits damage to a person’s dignity or reputation as long as the publication is presented as comment, is based on facts and is expressed on a matter of public interest, without malice, meaning ulterior motive.

As confirmed in The Citizen v McBride: “The law does not allow the unjustified savaging of an individual’s reputation. The right of free expression must yield to the individual’s right not to be unlawfully defamed.”

Clause 7.2 of the press code states: “Comment or criticism is protected even if it is extreme, unjust, unbalanced, exaggerated and prejudiced, as long as it is without malice, is on a matter of public interest, has taken fair account of all facts and is presented as comment.”

ALSO READ: Govt denies Ramaphosa, Gordhan using banks to silence Survé’s Independent Media

We are free to publish opinions, but not to hurl insults without factual basis. When Sunday Independent was asked to indicate any factual foundation for their claims about Maughan, it was unable to do so.

Free but fair

The press code stands for ethical and responsible free speech. The media must be free, but also fair. In expelling Independent Media, the Press Council did not act as a “censor”, it upheld its code ensuring that freedom of expression is exercised lawfully.

• Viljoen and Winks are media lawyers and public representatives on the Press Council’s panel of adjudicators.