OMBUD WATCH: A look at the News24 vs Sunday Independent ruling

This is a story about a complaint to the Press Ombud about an article that responded to another article that was a response to an earlier article that was a response to an even earlier article.

In the back and forth of articles between journalists at News24 on the one side and a self-styled independent writer and commentator, who publishes the occasional article in various Independent Media titles, on the other side, insults and allegations of all sorts flew thick and fast.

The story starts on 20 February 2024, when News24’s Karyn Maughan reported on Independent Media chair Iqbal Survé’s claim that an appeal judge who had recently ruled against him was conflicted. In a response to that article, Edmond Phiri – the occasional writer of opinion pieces – compared Maughan to Leni Riefenstahl, a German filmmaker, photographer, actress and Nazi propagandist.

In a detailed piece titled ‘Inside Iqbal Survé’s glitchy propaganda machine: Goebbels, AI and slippery writers’, News24’s Nick Wilson, Jan Cronje and Jeff Wicks alleged that “Survé is waging a public-relations war, using a team of pliant journalists, PR staffers, and seemingly fictitious opinion writers to polish his image and attack journalists critical of him”. Phiri was not spared, with the three authors accusing him of being “a mere persona controlled by a hidden hand … [who] works at the behest of Survé.”

It was a particular aspect of Phiri’s response that resulted in a complaint being lodged with the Press Ombud. Having refused an invitation by Wilson to meet virtually, Phiri claimed that the exchange “reminded … [him] of the typical arrogance of ‘baas’ to his ‘baas boy’ during the apartheid era.”

The complaint alleged that this comment “unambiguously accuse[d] Wilson of being a racist”, and in the absence of a factual foundation for the claim, clauses 3.3.2 and 7.2 of the Press Code had been breached.

Protects criticism

Both of these clauses deal with the defence of fair (or protected) comment, which – as the Constitutional Court explained many years ago in The Citizen v McBride – protects criticism “even if extreme, unjust, unbalanced, exaggerated and prejudiced, so long as it expresses an honestly-held opinion, without malice, on a matter of public interest on facts that are true.”

Significantly, the text of clause 7.2 draws directly from this case law on defamation.

In his ruling, the Deputy Press Ombud paid some attention to the context within which the impugned comment had been made. He found that Phiri had not unambiguously accused Wilson of being racist, and that the reasonable reader would not “understand the writer’s comment to be making such an accusation”.

And without considering whether the comment was “based on facts that are adequately referred to and that are either true or reasonably true”, he found that it was not in breach of clause 3.3.2.

Significant doubt

In making this finding, the Deputy Press Ombud appears not to have considered an email to Wilson in which Phiri wrote about “the notion of proving [his] existence to a white ‘baas’ through a Teams of Zoom meeting”, describing Wilson’s “unsolicited invite” as “‘baas-like’ instructions”.

That email, which was published by the News24 team in its earlier article, casts significant doubt on the finding that Phiri had not actually accused Wilson of being a racist.

In dealing with clause 7.2, the Deputy Press Ombud purported to address all four of the listed requirements. But in so doing, he appears to have misunderstood at least one of them: whether the opinion was based “on facts that are adequately referred to and that are either true or reasonably true”.

Instead, the ombud simply says that Phiri’s comment “does not relate to a statement of fact” but is rather “a subjective impression based on his interaction with Wilson”.

Protected comment

At the heart of the defence of protected comment in our law is the notion that even “extreme, unjust, unbalanced, exaggerated and prejudiced” opinions may be published on condition that they are underpinned by facts. I may publish a piece calling you a racist pig based on what you have actually said or done.

But what I cannot do is to make that call on the basis of a subjective impression derived from my interaction with you. That, with respect, is what the law still says.

A final thought on the Press Ombud’s powers. Central to the resolution of the complaint was the manner in which Phiri claims to have reacted to being asked by News24 to establish that he exists. But such a claim could only be valid, and the subsequent comment made in good faith (i.e. without malice), if Phiri actually exists.

What appears to have happened is that the Deputy Press Ombud simply accepted that Phiri exists, interacting only with the Sunday Independent’s editor.

According to clause 3.3 of the Press Council’s Complaints Procedures, the Ombud is empowered – if of the view that a matter cannot be decided on the papers – to “convene an informal hearing with the two parties”. In contrast, clause 3.2 states that a matter may be decided on the papers “if it is reasonable not to hear the parties”.

In such circumstances, would it not have been reasonable to convene an informal hearing at which Phiri would have been expected to appear?

This column aims to bring Press Ombud rulings to a wider audience and to give more public scrutiny to the rulings. The column is written by a legal practitioner.