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Huffington Post: Why the ombudsman got it wrong

Ivo Vegter is a columnist and the author of Extreme Environment, a book on environmental exaggeration and how it harms emerging economies. He writes on this and many other matters, from the perspective of individual liberty and free markets.

The press ombud, Johan Retief, has found the Huffington Post SA and its former editor, Verashni Pillay, guilty of serious misconduct – its worst degree of offence – in publishing “text that was discriminatory and denigratory, and amounted to hate speech”. He is wrong, however, and sets an awful precedent for press freedom.

My initial reaction to last weekend’s blog post on disenfranchising white men, written by a hoaxer and published by Huffington Post SA (HuffPostSA) editor Verashni Pillay, was that it contained falsehoods, amounted to inflammatory race-baiting, contained an unconstitutional proposal, and espoused outrageous left-wing and radical feminist rhetoric. I agreed with calls for Pillay to resign, and I stand by these opinions.

Pillay resigned after the press ombud, Johan Retief, issued a scathing ruling against her (full text), in terms of the Code of ethics and conduct for South African print and online media (Press Code). Jacques Rousseau, a former columnist for Daily Maverick who teaches critical thinking and ethics at the University of Cape Town, persuaded me that the ruling is terrible in its reasoning (although I think he was too kind to Pillay).

Like Rousseau, I have written against the idea that hate speech ought to be prohibited by law. Instead of leaving hateful views to fester in secrecy, it is much healthier for society to air them and challenge them in open debate and, if necessary, with public scorn and ostracism. If you need the implicit violence of law to suppress offensive rhetoric, you’re admitting that you feel unable to combat it with reason. Unless you incite imminent violence, defame someone, or attempt to commit fraud, speech should be unencumbered by the heavy hand of the law.

However, given that hate speech is defined in the Constitution and the Press Code contains clauses against it, the ombud had an obligation to rule on it. The problem is that his reasoning was wrong.

This is what the Press Code has to say on discrimination and hate speech:

“5.1. Except where it is strictly relevant to the matter reported and it is in the public interest to do so, the media shall avoid discriminatory or denigratory references to people’s race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth or other status, nor shall it refer to people’s status in a prejudicial or pejorative context.

“5.2. The media has the right and indeed the duty to report and comment on all matters of legitimate public interest. This right and duty must, however, be balanced against the obligation not to publish material that amounts to propaganda for war, incitement of imminent violence, or advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.”

The ombud did not distinguish between reporting news and expressing opinions. The wording of section 5.1 suggests that it applies to news reporting only, while the blog post was obviously opinion. It was certainly discriminatory, but that was “strictly relevant” to the argument. The opinion also clearly assumed that the discrimination it proposed would be in the public interest. Therefore, the ombud’s ruling that it was in breach of section 5.1 was incorrect.

The hate speech clause is even more specific and is drawn directly from the Constitution. It prohibits “propaganda for war”, which this wasn’t, “incitement of imminent violence”, which this wasn’t, and “advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm”.

As Rousseau correctly points out, the “and” in that last phrase is key. It isn’t just hateful speech that is banned, but hateful speech that also incites harm. The ombud’s view was this: “I accept that the text itself did not directly propagate violence – but if the actions it advocates were ever put into practice, they might well lead to just that.”

That is an unacceptably liberal interpretation of “incitement to cause harm” or “incitement of imminent violence”. Many policy proposals could, if implemented, cause harm or cause violence. Some routinely do. That is as true for disenfranchising white males as it is for forcibly removing illegal squatters, or defending a policy of preferential treatment by race to redress the wrongs of the past. Such ideas are not what the framers of the Constitution contemplated when they prohibited hate speech.

So, the ombud’s ruling that it was in breach of section 5.2 was also incorrect.

The ombud’s failure may spring from the fact that he, in essence, reworded the Press Code for his own purposes. Inexplicably, he drew on the writing of an obscure Kenyan academic, writing about Kenyan law, to come up with the following:

“I have amended her criteria for identifying hate speech slightly to boil them down to the following questions:

“Is the speech likely to be inflammatory, discriminatory, hostile, and is it targeting a particular group?

“How influential is the speaker?

“Is the audience likely to react violently?

“Have similar statements led to violence?”

The ombud does not have the latitude to rewrite the rules for his own convenience. This alone is grounds for invalidating his ruling. He writes he could find the offending blog post to be “hate speech” on the first point alone. But, as we’ve seen, neither the hate speech clause in the Constitution nor the hate speech clause in the Press Code permit this. They require that it also incites harm.

The ombud also ruled on clause 7 in the Press Code, which reads in part:

“7.2.  Comment or criticism is protected even if extreme, unjust, unbalanced, exaggerated and prejudiced, as long as it:

    “7.2.1.  expresses an honestly-held opinion;

    “7.2.2.  is without malice;

    “7.2.3.  is on a matter of public interest;

    “7.2.4.  has taken fair account of all material facts that are substantially true; and

    “7.2.5.  is presented in such manner that it appears clearly to be comment.”

Again, the ombud found that the blog post was not in the public interest. Yet the post itself clearly argued that its proposals were intended to be in the public interest. When Pillay defended it, she also assumed the proposals would be in the public interest. It is unclear how the ombud could hold that an article about redressing past wrongs was not in the public interest, even if he vehemently disagreed with its proposals (as I do). His ruling is a matter of subjective opinion, not objective fact.

The only point where the ombud was undeniably correct was in finding that the post did not take “fair account of material facts that are substantially true”. It did rely for its argument on a number of incorrect statements.

The ombud considered all these breaches to be “tier 3” breaches. The tiers distinguish between “minor breaches” (tier 1), “serious breaches” (tier 2) and “serious misconduct” (tier 3). However, considering all of the above, I couldn’t go along with anything worse than a tier 1 offence, over the publication of demonstrably false statements of fact. And even then, I don’t see a good reason why a regulator needs to get involved. There are plenty of journalists who can (and did) point out the article’s errors.

By this ruling, the ombud has redefined hate speech far more broadly than the Press Code does. It is a precedent that will make it difficult to ever challenge clauses in the Constitution, criticise laws, or propose new policies, especially when they address matters of racial inequality in South Africa.

By their very nature, such arguments are bound to be offensive to some. If one were to argue for an end to black economic empowerment, for example, it would no doubt outrage a great many people. As with any government policy, it surely is proper to discuss it. Would it be considered sufficiently inflammatory to a particular group to trigger the ombud’s made-up hate speech rule? I fear it might.

However much you might disagree with the fake blog post in HuffPostSA, it is an opinion that can easily be countered by rational debate. It does not need to be suppressed by the heavy hand of an erring regulator.

Whether the post was grossly offensive, whether editorial policy mistakes were made, and whether Pillay should have taken the fall for it – all of which I believe – is a matter between HuffPostSA and its owners. Whether it retains any credibility after exposing its radical ideological bias is a matter for its readers to decide. None of these questions need to be subjected to a regulator for approval or condemnation.

It would be a terrible outcome if the ombud’s errors led to the far worse evil of government regulation through the proposed media appeals tribunal. But that does not mean that the ombud is above reproach, especially when his findings are patently wrong.

A more interesting matter for the press ombud would be to consider whether any rules were violated in exposing the identity of the hoaxer, Marius Roodt, and whether the vicious revenge exacted upon him breached sections 3 and 4 of the Press Code relating to privacy, dignity, reputation and protection of personal information.

How exactly, with whose co-operation, and under what laws, was he traced? Is it really in the public interest to list Roodt’s private interests or publish where he went to school? Did the editors “exercise care and consideration in matters involving the private lives and concerns of individuals” when they barged into his place of work with a camera and put him on the spot while he was clearly unprepared and still eating his lunch? Was it appropriate to call him “a bit of a doos” on camera? Did they “exercise care and consideration in matters involving dignity and reputation”? Was overriding his dignity and reputation in the public interest, as the Press Code requires? He lost his job for exposing the ideological bias of the Huffington Post. Was that justice, or just petty revenge?

This incident revealed procedural failures at HuffPostSA, and betrayed its radical ideological sympathies. Instead of taking the high road, its editors further damaged HuffPostSA’s reputation by humiliating and bullying the writer who caught them out.

But the worst part of this whole saga is that the press ombud just makes up the rules as he goes along. Instead of protecting press freedom, his mistakes set a dangerous precedent which could silence the media on controversial policy issues in future. That would be a grave loss to all South Africans. DM


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