Public advocate vs. Sunday World

SUMMARY

The headline to the story in dispute read, @explicitschoolpics – Department in shock and threatens action on Twitter pornography (published on 26 May 2013).

This ruling by Press Ombud Johan Retief was based on the Press Code that was in effect before 30 September 2022.

Latiefa Mobara, Public Advocate of the Press Council, complained about a picture that “gratuitously” illustrated a sex scene of juveniles dressed in school clothes, apparently on school property – a scene that was reportedly common on local Twitter accounts.

The picture depicted three schoolgirls who were posing in sexual acts.  The caption read: “X-rated: Pupils pose for a provocative picture on school property. The pictures were uploaded to a Twitter account and have been viewed several times.”

Sunday World said that the schoolgirls were fully clothed, and their faces were obscured, and that they were demonstrating sexual positions – but did not have sex.

Retief said the question was if the picture was depicting child pornography or not – the Code did not allow child pornography, with or without public interest.

He quoted Section 8.2 of the Press Code, where it stated that a minor who was “depicted as being engaged in sexual contact” amounted to child pornography.

The Ombud upheld the complaint, saying that “however ‘noble’ the newspaper’s intentions may have been (read: public interest), it still crossed a line that is clearly defined by the Press Code”.

Sunday World was severely reprimanded for publishing child pornography.

THE RULING ITSELF

This ruling is based on the written submissions of Latiefa Mobara, Public Advocate of the Press Council, and the Sunday World newspaper.

Complaint

Mobara complains about a picture on page 3 of the Sunday World, which was published on 26 May 213 and headlined @explicitschoolpics – Department in shock and threatens action on Twitter pornography.

Mobara complains the picture gratuitously illustrated a sex scene of juveniles dressed in school clothes, apparently on school property – a scene that was reportedly common on local Twitter accounts.

Analysis

The picture depicted three school girls who were posing in sexual acts.  The caption read: “X-rated: Pupils pose for a provocative picture on school property. The pictures were uploaded to a Twitter account and have been viewed several times.”

The following sentences by Sunday World summmarise its defence: “The photograph in question…was of three schoolgirls – fully clothed and with their faces obscured – who were demonstrating sexual positions but who were most certainly not having sex. The use of the photograph is justified on two grounds – firstly, the context and use was appropriate, and secondly, it does not flout the definition of child pornography.”

I note that the newspaper argues public interest in this matter, given the apparent seriousness of the matter.

However, in terms of the Press Code the question is if the picture was depicting child pornography or not – the Code does not allow child pornography, with or without public interest.

Section 8.2 of the Code says: “Child pornography shall not be published. Child pornography is defined in the Film and Publications Act as: Any image or any description of a person, real or simulated, who is or who is depicted or described as being, under the age of 18 years, engaged in sexual conduct, participating in or assisting another person to participate in sexual conduct; or showing or describing the body or parts of the body of the person in a manner or circumstance which, in context, amounts to sexual exploitation.”

The operative part of this sentence pertaining to this specific case is “someone (under the age of 18) who is depicted as being engaged in sexual contact”. This observation is difficult to contradict, as the purpose of the picture was to do exactly that. This means that however “noble” the newspaper’s intentions may have been (read: public interest), it still crossed a line that is clearly defined by the Press Code.

Finding

The publication of the picture is in breach of Section 8.2 of the Press Code (as cited above).

Sanction

Sunday World is severely reprimanded for publishing child pornography.

The newspaper is directed to publish the following text on page 3:

The Press Ombudsman has severely reprimanded us for publishing a picture of three girls in school uniform who were posing as if they were having sex on a school ground. This was done to illustrate the problem of sexual practices that was apparently wide-spread amongst school children.

The story was about learners whose pictures of a sexual nature were uploaded to a Twitter account.

Press Ombudsman Johan Retief said that he noted that we had argued public interest in this matter, given the apparent seriousness of the matter. “However, in terms of the Press Code the question is if the picture was depicting child pornography or not – the Code does not allow child pornography, with or without public interest.”

He found against us as both the Film and Publication Act and the Press Code define child pornography as the portrayal of “someone (under the age of 18) who is depicted as being engaged in sexual contact”.

Visit www.presscouncil.org.za for the full finding.

End of text

Appeal

Our Complaints Procedures lay down that within seven working days of receipt of this decision, either party may apply for leave to appeal to the Chair of Appeals, Judge Bernard Ngoepe, fully setting out the grounds of appeal. He can be contacted at [email protected].

Johan Retief

Press Ombudsman