Ruling by the Press Ombud
23 May 2017
This ruling is based on the written submissions of Mr Cameo Edwards and those of Branko Brkic, editor of the online Daily Maverick (DM) publication, as well as a submission by the cartoonist Zapiro (Jonathan Shapiro).
Edwards is complaining about a cartoon in the Daily Maverick of 11 April 2017.
Complaint
Edwards complains that the cartoon distastefully perpetuated rape culture – a gross human rights offence. He argues, “In a country where the number of rape victims is so high, it was highly insensitive of [the cartoonist] to illustrate his work in this manner, and highly irresponsible of The Daily Maverick to publish the work.”
He asks for a public apology for traumatizing the public, as well as for Zapiro’s resignation from the publication.
The cartoon
The cartoon depicts Pres Jacob Zuma (with a shower on his head and standing with his back to the figure of a woman, with his hands touching his private parts) as saying to a male figure of the Gupta family (whose belt is loosened with his trousers lowered slightly (probably in the process of dropping them), “She’s all yours, boss!”
The woman, lying down with her legs slightly apart, is draped in the national colours of the Republic with the letters “SA” on her chest, while her outstretched arms are held down by the caricatures of three public figures.
Daily Maverick
The publication responds in detail, inter alia by:
· referring to a similar cartoon which caused Zuma to initiate and later withdraw litigation (the issues were defamation, hate speech and dignity) and for which Zapiro was exonerated by the SA Human Rights Commission (SAHRC) on the grounds of his right to freedom of expression;
· arguing that the cartoon in dispute was legally protected and not in breach of the SA Code of Ethics and Conduct;
· explaining the meaning of the cartoon (which, in fact, was quite self-evident); and
· listing several court judgments upholding freedom of expression.
Regarding rape as a metaphor, the publication says “[the] discomfort of the audience in receiving the artist’s ideas, does not of its own accord form adequate basis for limitation of that right”. It adds that a cartoon needs not be humorous – in essence it is about surprise and juxtaposition, which can provoke reactions of amusement, but also of sadness, outrage and anger. “Cartoonists are there to offer a reality check for a free society, which sometimes could be biting or deeply uncomfortable.”
The Daily Maverick argues, “Given the public nature of allegations of state capture levelled against President Zuma and the Gupta family, as well as the facts in support of such allegations, it is clear that the cartoon in this instance is protected fair comment and constitutes criticism which is protected in accordance with the findings of the Constitutional Court.”
The publication also refers to a finding by the SAHRC on a similar cartoon, where it held that the depiction of rape did not infringe the right to dignity of women or of rape victims – the Commission ruled that the cartoon in question was a political expression published in the public interest and, as such, deserved heightened protection.
The Daily Maverick argues that, should a finding be made that the mere depiction of rape were by its very nature offensive and infringing upon people’s dignity, it would run the risk of creating an environment in which the media would not be able to depict it at all (for whatever purpose). Whether or not one agrees with the graphic image the cartoonist chose to express his views, DM states, his freedom to do so cannot be doubted nor be infringed upon – such a restriction would chill artistic expression.
The publication also denies that the cartoon has promoted or glamorized rape.
Edwards again
Edwards replies that the presentation of gender violence in the media is powerful and influential, and The Daily Maverick has a responsibility to be sensitive to the experiences of women in South Africa, regardless of the message it wants want to portray.
He adds that:
· the cartoon glorified vicious acts of sexual violence against women;
· rape jokes are not funny;
· rape should never be used as a metaphor and “normalized”; and
· the context of the material does not matter – a woman being abused is the focus of the image (adding that he never expected “blatant disrespect” of women's bodies from the editor).
Edwards argues, “Zapiro has the right to free speech and artistic expression, but those rights do not trump the right to dignity because that is one of the core values of our founding constitution.”
If the publication is not disciplined, he adds, it is going to send out a “very wrong message” about how citizens view rape culture and its multi-faceted manifestations.
Analysis
Introductory remarks
Section 7 of the SA Code of Ethics and Conduct regulates comment (a cartoon is nothing more, nor less, than comment)
It states:
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7.1. The media shall be entitled to comment upon or criticise any actions or events of public interest. 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. |
This formulation is in line with several findings of our courts, some of which The Daily Maverick has quoted.
The other core value at play here, which is also protected by the Code, is dignity, as Edwards points out.
Indeed, he raises an interesting point in stating that freedom of expression should not trump dignity.
This office has dealt with numerous cases over the years regarding tension between these two competing rights. Depending on circumstances, a decision in this regard is seldom easy; those who make an easy decision do not appreciate the intricacy and the nuances.
The current complaint also needs to be considered in this context. There may be circumstances where the one core value has to trump the other, whether it is freedom of expression that trumps dignity or vice versa.
Such is the nature of media ethics – its areas are often grey, with only the shades showing any variation. Sometimes one shade is darker than the other.
Trumping one another
Having applied my mind, I have no hesitation that, in this instance, freedom of expression outweighs dignity. In most cases I would be more careful, saying I have “little doubt”. In this instance I replace the “little” with “no”.
Zapiro’s cartoon is a political statement, designed to shock, not meant to be humorous and intended to reflect on the nature of what is happening in the country, as he perceives it.
Some of my considerations:
· This office should never find against a cartoon merely because some members of the public do not agree with the image or the message. The publication is correct in stating, “[the] discomfort of the audience in receiving the artist’s ideas, does not of its own accord form adequate basis for limitation of that right”;
· If this office prohibits the depiction of rape as such, it would not only suppress freedom of expression regarding this specific issue, but it would also invariably lead to a clampdown on other contentious issues – something which no democracy can afford;
· One would read much too much into the cartoon if one believed that it glamorized, promoted or perpetuated rape; and
· The woman depicted in the cartoon does not signify a person – she is representative of the whole of South African society.
I am also convinced that neither Zapiro nor Daily Maverick believes that rape is anything but a gross violation of human rights. And neither do I.
Finding
The complaint is dismissed.
Appeal
The Complaints Procedures lay down that within seven working days of receipt of this decision, either party may apply for leave to appeal to the Chairperson of the SA Press Appeals Panel, Judge Bernard Ngoepe, fully setting out the grounds of appeal. He can be contacted at Khanyim@ombudsman.org.za.
Johan Retief
Press Ombud