Ruling by the Press Ombud
31 August 2018
Particulars
Lodged by: Dr Thami Mazwai, special advisor to the Minister of Small Business Development
First article: SA ‘completely out of step’ with global SME growth trends (25 July 2018)
Editorial: Lip service paid to SME sector (26 July 2018)
Print and online: Yes
Respondent: Susan Smuts, internal ombud
Complaint
The complaint is that BD has:
· pubished the (defamatory) content of a media statement without asking the department to respond (first article);
· found the department guilty of gross under-performance (editorial); and
· repeated damaging allegations (in a follow-up article).
Mazwai says he submitted an article to be used as an op-ed piece to correct allegations made in the article, but BD indicated that it would only publish that response as a 400-word letter or an online article – an offer that he rejects. He asks this office to direct the newspaper to publish his text as an op-ed piece.
The text
The first article, written by Jana Marais, cited the initial findings of a recent study by the Small Business Institute (SBI) and the Small Business Project (SBP), in which it was found that South Africa had only 250,000 formal small and media-sized enterprises (SMEs) – which were much less than previous estimates of between 2-million and 6-million.
Marais wrote that this was out of pace internationally – which raised questions about possible policy and regulatory failure.
The journalist quoted president of the SBI Bernard Swanepoel as saying that “SMEs face extinction if we’re not careful”.
She also quoted CEP of the SBP Chris Darroll as follows: “The critical point to ask is whether this is pointing to policy and regulatory failure in this country. Why are we so completely out of step with the rest of the world?”
He also reportedly said that South Africa was “stabbing in the dark” when talking about SMEs.
The article ended by stating: “Preliminary findings show a lack of consistency in the government’s definitions of SMEs in 70 laws, regulations and key strategies reviewed.”
The second article repeated some of these statements.
The editorial, also authored by Marais, highlighted some of the “disconcerting facts” which emanated from the SBI’s study.
The arguments
Smuts says BD was not obliged to seek comment from the Ministry of Small Business Development, as the article did not contain any specific allegations against it.
“We reported and commented on research that had been publicly released. This is in accordance with common and accepted journalistic practice, and furthers the free-flow of information. No single article or series of articles can ever present itself as the last word on a matter. Each one contributes to the body of knowledge at the disposal of our readers,” she says.
The internal ombud adds that, even if the newspaper was obliged to give the ministry a right of reply, that would not necessarily have been in the form of an op-ed piece as letters were a widely accepted form of right of response. She proposes to publish an edited version of Mazwai’s op-ed piece as a letter.
Mazwai rejects this offer “as it means that Business Day stands by its story and editorial and is not prepared to give us a right of reply. A letter is not a right of reply”.
Analysis
The article
Superficially, it may seem that this complaint is much ado about nothing – whether to publish Mazwai’s text as an article or a letter to the editor. At least, that was my first reaction when I started to study its particulars.
But I soon realised that this matter is more complicated than meets the eye, and more is at stake than merely which form of a right of reply should take.
The first, and most fundamental, question underlying this matter is if a newspaper may reproduce material that is, or may be, defamatory – it is a well-known adage that the repetition of defamation is also defamation.
But there is a vital distinction to be made here, as it depends on how such a statement is repeated. If, for example, someone alleges that a mayor has stolen money, the media would normally be at liberty to report that allegation as an allegation, even though the allegation itself might be slander, or defamatory – as long as the publication is not making the allegation and is merely reporting the fact that someone else has made such an allegation.
Most, if not all, allegations are potentially defamatory – and if the media are not at liberty to report any of those, they would not be able to fulfil their watchdog role in society.
It should therefore not be in dispute that BD had the right to publish the outcomes of the research done, together with comments on the latter. This was indeed “in accordance with common and accepted journalistic practice”, as Smuts submits.
The second question is if BD was obliged to give the department a right of reply.
Section 1.8 of the Press Code reads in part: “The media shall seek the views of the subject of critical reportage in advance of publication…”
This implies that the media are not obliged to seek the views of people or institutions who are not likely to be harmed by reportage – but if there is a possibility that that may happen, they are required to do so.
The issue, then, is if the research, as reported by BD, might have constituted “critical reportage”.
The article did not mention the department, but it clearly referred to it.
Consider the following statements:
· “SA is a ‘complete outlier’ internationally when it comes to employment creation by small and medium-sized enterprises (SMEs), raising questions about possible policy and regulatory failure”;
· After referring to some statistics, CEO of the SBP Chris Darrol was quoted as saying: “The critical point to ask is whether this is pointing to policy and regulatory failure in this country. Why are we so completely out of step with the rest of the world?”;
· According to Darroll, South Africa was “stabbing in the dark” when talking about SMEs; and
· “Preliminary findings show a lack of consistency in the government’s definitions of SMEs in 70 laws, regulations and key strategies reviewed.”
It is difficult to surmise how possible “policy and regulatory failure” would not refer to the body that is ultimately responsible for policy – which is the department in question. And if “policy and regulatory failure” is not critical, I do not know what is.
Again: BD was justified to publish this statement – but, because it constituted critical reportage, it was also obliged to obtain the department’s comment in this regard.
It did not do so, hence the complaint.
The editorial
The editorial was based on the findings of the SBI study, and I am satisfied that BD did not find the department guilty of gross under-performance, as stated in the complaint.
Finding
The article
BD is in breach of Section 1.8 of the Press Code that states: “The media shall seek the views of the subject of critical reportage in advance of publication…”
The editorial
This part of the complaint is dismissed.
Seriousness of breach
Under the headline Hierarchy of sanctions, Section 8 of the Complaints Procedures distinguishes between minor breaches (Tier 1 – minor errors which do not change the thrust of the story), serious breaches (Tier 2), and serious misconduct (Tier 3).
The breach of the Press Code as indicated above is a Tier 2 offence.
Sanction
The question is not if Mazwai’s text should be published or not, but merely which form it should take – a letter, or an op-ed piece.
In principle, there is not an essential difference between the two. In this case, though, given the fact that BD neglected to ask the department’s views on statements that were potentially harmful to its reputation, I believe that an op-ed piece would be appropriate.
BD is therefore to publish Mazwai’s text as an op-ed article.
There would be no need for the newspaper to state that this office has directed it to do so, as it would serve little purpose.
The text should be published at the earliest opportunity after the time for an application for leave to appeal has lapsed or, in the event of such an application, after that ruling.
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