Business Maverick


After the Bell: The limits of offensiveness

After the Bell: The limits of offensiveness

I recently learnt a lesson about free speech. This is a bit personal, but permit me some latitude here; there is a reason that I’ll get to.

Some time ago, I wrote an article in this column space which was a broad assessment of the SA economy. Honestly, I thought nothing of it; I certainly didn’t think it was controversial. The message was unsurprising: I concluded that the economy was struggling. Surprise. But there were, as there always are, contrary indicators, which of course I mentioned because if you are being an honest journalist, you try to put all the relevant facts on the table.

To my extraordinary surprise, a pair of YouTube vloggers just laid into the piece. I don’t want to mention who they are because I can’t stand the idea of giving them a morsel of publicity. But they do a regular YouTube discussion about South Africa and its politics from a right-wing perspective, and they have a respectable number of subscribers, about 50,000.

Now, may I just tell you, it is extremely unusual for me to be criticised by the right. My colleagues, who like most journalists consider themselves broadly left wing, thought it was enormously funny. I get plenty of criticism from the left, some acutely vituperative. I consider myself a fairly conventional supporter of free markets, responsible economics and liberal thoughtfulness. Not everyone agrees, so one understands. Quite clearly, that’s not what this duo thought.

In the style of right-wing bloggers everywhere, they position themselves as “fighting the machine”, of which the “establishment” press is but one hated component. They seem to have a particular beef with News24, for reasons I find hard to understand. Well … it’s not that hard to understand; it’s kinda self-serving actually. If you are not attached to a formal journalistic institution and you are in the news commentary business, why not make a virtue out of the fact that no reputable institution will hire you?

Anyway, the duo latched on to several of the contrary indicators that I mentioned, completely ignoring the side of the argument they would probably not disagree with, and absolutely trashed the article and me personally.

Now, I should say, I am actually used to this after 30 years as a journalist. I can’t remember how many times I’ve been called a racist and, par for the course, I’ve had a few death threats, but far, far fewer than many of my colleagues. But it is still a sobering experience to wake up in the morning to discover your face on the front page of five newspapers, accused of being an agent of apartheid-era Stratcom. (I wasn’t.) 

So, by the standards of some other critics, shall we call them, this duo was by no means the worst. But they did describe me as a “dickhead”, a “kak”, a “dickweed” and a “retard”. What really got to me was being called a “kak”; I mean, it’s bad enough being dismissed, but isn’t the act of excreting a verb rather than a noun? Is it too much to ask that your insults should be grammatically correct? Apparently so.

Mostly, I just ignore this stuff. If you are a columnist, you have your say; you shouldn’t really complain when others have theirs. But there is a limit, and it did irk me that FNB — my bank! — was advertising on the site. So, I sent YouTube a complaint and, to my shame, I asked them to take the piece down, or at least demonetise it.

Hooo-wa. That started a whole long set of emails. I was asked what exactly I was complaining about. I said I had been defamed. I was told to specify where exactly in the piece the defamation happened. I did. I was asked what defamation laws exist in my country. I described them. It just went on forever.

Ultimately, I got this email: “Hello. We’ve reviewed your request, and we’re unable to find a violation in your defamation claim under our legal policies. Therefore, we will not remove the content under our defamation policy. We suggest that you address your concerns directly with the uploader of the content in question.”

Honestly, I was furious. All that emailing for nothing. I did as they suggested and weighed in on the video in the commentary space, saying that the piece was obviously defamatory, and the duo then took it down. To me, the whole incident was a great example of how social media enhances conflict and hatred by tacitly, and sometimes not tacitly at all, encouraging the haters.

But once I had a chance to cool down, I thought about it. The conclusion I came to was that I was wrong, and YouTube was right. It’s unpleasant for me to be called a “kak”, but in a free society, you should be free to call other people names, (even if they are grammatically incorrect).

Freedom of speech is not about being nice or even being accurate; it’s about the utility of being offensive so that, in circumstances where it matters, you too can be offensive. And sometimes, it really matters.

I mention all of this because the Press Ombud has just made a ruling which I think is wrong. What happened is that the editor-in-chief of News24, Adriaan Basson, wrote a clearly marked opinion piece titled “Welcome to the City of Clowns”, which was about the crazy leadership changes in the City of Johannesburg. 

In the piece, Basson said that by bringing in Patriotic Alliance (PA) leader Gayton McKenzie, “the ANC-EFF coalition will ensure they have a majority in these cities. But it will come at a price. McKenzie and the PA have been blunt about the fact they are in it for the tenders. Their aim will be squarely to capture departments with the highest budgets and opportunities for rent-seeking.” 

I remember reading this piece and being a bit shocked. It seemed to me a rather loose comment. But when the case was argued before the Press Ombud, Basson actually backed up his argument and mentioned several times that McKenzie had openly salivated over the power politics confers. His comments didn’t specifically mention tenders, but there was clearly a dog whistle going on here. They weren’t miles away either. In one case, the PA had in fact been criticised by a political rival for hiring contractors without consulting the municipality or getting authorisation from the council.

None of these incidents was actually disputed by the PA in the case, and the Press Ombud consequently dismissed it on the basis that this was an opinion article that was not devoid of evidence. But on appeal, the finding was reversed. 

The appeal agreed this was a commentary article, and so the relevant issue here is Clause 7 of the Press Council’s Press Code. That says:

  • (7.1) “The media shall be entitled to comment upon or criticise any actions or events of public interest”; and
  • (7.2) “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 material facts that are either true or reasonably true, and is presented in a manner that it appears clearly to be comment.”

The appeal trio, led by Judge Bernard Ngoepe, pointed out that just because it’s a commentary article, doesn’t mean that everything mentioned as fact is automatically granted licence. In this case, the judges found: “In our view, Mr Basson’s claim, that ‘McKenzie and the PA have been blunt about the fact they are in it for the tenders’, crossed the fine line between comment and factual assertion.” 

Later, they found: “It is true that Clause 7.2 permits comments that are ‘extreme, unjust, unbalanced, exaggerated and prejudiced’. But the requirement to take fair account of true facts entails a reasonable degree of fidelity to the truth.”

Well, you know, with great respect, does it? What if you suspect that someone who has been to jail for robbing a bank might want to get into politics because the power it provides gives them access to public money? Can you not raise that suspicion, and put the onus on the politician to demonstrate that they are in fact honest? But in terms of this judgment, to do so would be without “a reasonable degree of fidelity to the truth”. 

I think what is happening is this: After a gazillion examples, many people in SA imagine it’s realistic to expect that politicians want to get into power to get control over the tenders. Journalists are at their wits’ end trying to change that attitude and expose this stuff. And when they do, seemingly nothing much happens. The result is frustration and loose commentary. None of this background was considered in the case.

This is a hard case, and hard cases make bad law, the saying goes. I’m sure the judges, in this case, were trying honestly and sincerely to ensure that the press observes “a reasonable degree of fidelity to the truth”. There is nothing wrong with that, and I would not for a moment dispute their bona fides. Obviously, the press that subscribes to the Press Council will abide by the ruling.

But is it not also reasonably true that tender fraud in SA is out of control? And, if that is so, is it so wrong to suggest that politicians might seek that end? DM

PS: Also, for the record, I dispute that I am “a kak”. I think the claim doesn’t show a reasonable degree of fidelity to the truth. Just saying.


Comments - Please in order to comment.

  • David Walker says:

    Just for the record, Mr Cohen, you are one of the most elegant, nuanced, insightful, honest, informative, balanced and thoughtful journalists in South Africa today. And witty and highly entertaining to boot. Keep up the brilliant work.

  • Johann du Toit says:

    Like ‘shit’, ‘kak’ can be both a noun and a verb It is something you can both do and produce

  • Gregory Scott says:

    Spot on David

  • Peter Doble says:

    When younger I frequently went to Speaker’s corner in London which attracted every crusading, egocentric, religious fanatic and doom merchant who spouted their thoughts to any one who would listen. This unique experience has been superceded by social media but it invokes the true meaning of freedom of speech. It has shaped my own reasoning that, as long as it does not incite physical harm, everyone is entitled to say what they think and hold their own view. The absolute essence of a free society is the adage that “I may disapprove of what you say, but I will defend to the death your right to say it.”

  • Shirley Cowling says:

    Regarding the term kak – The term kakistocracy is being bandied about – of Greek origin meaning a government led by the least suitable.

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