Appeal Decision: GroundUp vs Joseph Winer


Tue, Feb 11, 2020

In the matter between

GROUNDUP                                                                                                          APPLICANT

AND

JOSEPH WINER                                                                                             RESPONDENT

MATTER NO: 4342

DECISION ON AN APPLICATION FOR LEAVE TO APPEAL

1.         Mr Joseph Winer (“respondent”) lodged a complaint against Groundup (“applicant”) in respect of an article published by the applicant on 15 March 2019. Mr Winer was complaining on behalf of his company known as O2xygenate (or companies related to it). For the sake of convenience, it will be Mr Winer who will herein be cited and referred to as the complainant or respondent. The article said, in essence, that there were companies which falsely claimed that HBOT or mHBOT could be used to treat all sorts of medical conditions; respondent’s company was singled out as an example: “The South African Company O2xygenate claims mHBOT can be used for a string of indications including cancer, stroke, Parkinson’s disease, Alzheimer’s disease, autism …” etc. The complaint was twofold: firstly, that the article contained some inaccuracies and, secondly, that the respondent was not given the opportunity to comment.

2.         The appellant’s defence to the first complaint was that the reportage was a scientific article based on the views of some medical experts. This argument was upheld by the Ombud, and the complaint was dismissed. Regarding the second complaint, the appellant said there was no need to seek the respondent’s comment; the article was based on the company’s claims contained in the company’s website, or the website of a related company. The Ombud ruled that because “of the arguments about science, I am not suggesting that Oxygenate be given a right of reply. However, in terms of the Code, Groundup should not have mentioned the company without approaching it for comment”. A sanction was imposed. The appellant now seeks leave to appeal against this finding.

3.         The appellant, in its application for leave to appeal, raises a number of grounds. They are rooted in the fact that the appellant’s reportage on the respondent’s company was obtained from its (their) website(s). Furthermore, the applicant alleged a number of irregularities on the part of the Ombud; such as that the Ombud consulted outside people but failed to seek appellant’s response; that is, a breach of the audi alteram partem rule.

4.         For the application to succeed, the applicant must show reasonable prospects of success before the Appeals Board. Having looked at the arguments advanced, the Ombud’s reasons for the Ruling, as well as some complaints regarding how the matter was dealt with, I am of the view that the application shows reasonable prospects of success. I cannot go into the details as the arguments will be considered by the full Panel; it would be inappropriate for me to do so at this stage.

5.         The following Order is therefore made:

-The application succeeds, and the appellant is hereby given leave to appeal the Ruling of the Press Ombud.

Dated this 11th day of February 2020

Judge B M Ngoepe, Chair, Appeals Panel