Ruling by the Press Ombud
21 April 2017
This ruling is based on the written submissions of Ms Reyhana Seedat and those of Lili Radloff, editor of w24.
Seedat is complaining about an article on 3 April 2017 in w24, headlined Models shown having actual sex in new controversial fashion ad campaign.
Complaint
Seedat complains that the article contained graphics of models having “actual sex” in an advertisement. She says that even as the pictures were “hazed over”, it was “pretty graphic and explicit for any not wanting to see pictures of a pornographic nature”. She calls the publication of the pictures inappropriate and tasteless.
The text
The article, written by Marisa Crous, was about fashion models who have ended up having sex (for real) in a new “controversial … ad campaign”.
The story was accompanied by three pictures:
· In the first one, two people (both with clothes on) were kissing each other;
· The second photograph depicted a woman who appeared to hold a man’s penis in her hand and was probably kissing it (the picture was blurred, so the vital parts were not clear – but it was clear enough to fathom what was transpiring); and
· The last picture showed two people kissing, while the woman has her hand on the other person’s (naked, but blurred) genitals.
The arguments
Radloff says the story reported on a controversial public advertisement campaign by a “high end fashion house”. It has widely, also internationally, attracted attention and therefore, she argues, it was in the public interest.
“Like our international counterparts, we included images from the campaign, as we felt it was the heart of the story. As for the explicit nature of the photos – all genitalia in the images were blurred out completely. The headline was straightforward and unequivocal, and made it very clear what the reader could expect to see in the article,” she concludes.
Seedat denies that the headline indicated the nature of the article, says that children had access to the website, and asks how this was in the public interest.
Analysis
Section 8.1.2 of the SA Code of Ethics and Conduct prohibits the publication of child pornography – but the Code does not forbid pornography as such. This should be interpreted in light of The Bill of Rights, also included in the Preamble to the Code, which provides freedom of expression to everyone (including the media).
The relevant section in the Code with regards to this complaint is 9.2. It reads, “Content which depicts … explicit sex should be avoided unless the public interest dictates otherwise, in which case prominent indication and warning must be displayed indicating that such content is graphic and inappropriate for certain audiences such as children.”
The first picture merely showed two people kissing, with their clothes on. I therefore take the complaint to be about the other two photographs.
Several factors are in play, which interplay with each other, as well as with the overall right to freedom of expression. I shall first look at the main “ingredients” of this pot individually, before stirring it to get a proper view of the “stew” that was published.
Blurring out of vital parts
The Code does not prohibit content depicting sex (it says nothing about nudity) – it specifically mentions “explicit” sex.
In this case, the vital parts of the pictures were blurred out so that nothing explicit could be seen, but not to such an extent that the act itself was unclear.
As such, the content was “graphic” enough.
Public interest
The term “public interest” is difficult to define, which is why the Code quite deliberately described it in general terms by stating, “The media's work is guided at all times by the public interest, understood to describe information of legitimate interest or importance to citizens.” (My emphasis.)
The question, of course, is what constitutes “legitimate interest or importance”.
Please note there is a difference between “interest” and “importance”. In this case, I would not buy an argument that the pictures in question were of legitimate “importance” to readers – I would, though, say that they were of “legitimate interest” to the public.
This is why: A vital aspect of what constitutes news is the uniqueness of an event. For example, the first heart transplant was news the world over. This uniqueness has since faded away, and one hardly reads of any new heart transplant anymore.
As far as I know, this advertisement campaign is new and unique. As such, the campaign was of legitimate interest to readers.
Readership
The likely reader of a publication plays a huge role in what is appropriate. For example, if a religious journal published the pictures in question, it would have been a total different kettle of fish; on the other hand, readers of pornographic magazines would justifiably expect to see just that.
This raises the question, who are w24’s likely readers? I note that it is called “w”, short for “women” (per definition adults, not children).
Yes, children may visit the website – but so too sites which are much more graphic and explicit. It is not w24’s fault if children, and not only (adult) women, visit its site.
But more needs to be said…
Warning of graphic content
I have cited above Section 9.2 of the Code, which says that a prominent indication and warning must be displayed indicating when content is graphic and inappropriate for certain audiences such as children.
Radloff’s argument that the headline itself was warning enough is not convincing, given the very explicit wording of this section. Consider the wording of Section 9.2, such as “prominent indication and warning”, “indicating that content is graphic”, and “indicating that content is inappropriate for certain audiences such as children”.
There was no such warning.
People may argue that such a warning may have the opposite effect – it may attract readers, rather than getting them to “turn the page”.
This may be true, but then at least the publication has done its duty, which is to inform. The ultimate choice always lies with the reader.
Mixing the stew
Taking all of the above considerations into account, I believe w24 was justified to publish the pictures in the way it did – it blurred the vital parts, it was in the public interest, and its likely readers were adults.
However, to cater for sensitive readers, whether young or old, the article should have carried a prominent warning that the content contained material of a graphic sexual nature.
Finding
The complaint is upheld in that the article did not carry a prominent warning to sensitive viewers (including children) that the article contained pictures of a graphic sexual nature. This omission was in breach of Section 9.2 of the SA Code of Ethics and Conduct which states, “Content which depicts … explicit sex should be avoided unless the public interest dictates otherwise, in which case prominent indication and warning must be displayed indicating that such content is graphic and inappropriate for certain audiences such as children.”
Insofar as the complaint is about the mere publication of the pictures, it is dismissed. Had the required warning been included, the complaint would have been dismissed in its entirety. .
Seriousness of breaches
Under the headline Hierarchy of sanctions, Section 8 of the Complaints Procedures distinguishes between minor breaches (Tier 1), serious breaches (Tier 2) and serious misconduct (Tier 3).
The breach of the Code of Ethics and Conduct as indicated above is a Tier 2 offence.
Sanction
w24 is directed to publish an appropriate and prominent warning, as argued above, with the article, together with an apology for not having done so of its own accord. The text should also refer to the complaint lodged with this office, end with the sentence, “Visit www.presscouncil.org.za for the full finding”, and be approved by me.
If the article is not carried on its website any more, w24 should nevertheless carry the apology.
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