Appeal Decision: Public Advocate vs. Sunday World

Case 219/2013

Appeal Panel of the Press Council of South Africa

In the matter between

The Sunday World          Appellant

The Public Advocate       Respondent

Panel: Judge BM Ngoepe, Chair

Moshoeshoe Monare, Media Representative

Philip van der Merwe, Public Representative

Decision of the Appeal Panel

1. On 10 January 2014 the Appeals Panel of the Press Council of South Africa heard an appeal by the Sunday World against a ruling issued by the Press Ombudsman, Dr Johan Retief, on 10 September 2013 in respect of a photograph published on page 3 of the Sunday World of 26 May 2013.
2. Okyerebea Ampofu-Anti and Stuart Scott appeared for Sunday World, while the Public Advocate, Latiefa Mobara, appeared for herself. Marvin Meintjies, the Editor of Sunday World, was also in attendance, as were Susan Smuts, the Legal Editor of the Sunday Times and Herbert Mabuza, an Editorial Executive at TMG.
3. Sunday World had applied for and been granted leave to appeal against the Ombudsman’s finding that the picture in question constituted child pornography, the publication of which is prohibited by s8.2 of the Press Code. The Ombudsman had proceeded to impose a sanction comprising both a severe reprimand and the mandatory publication on page 3 of an article stating this and briefly explaining the Ombudsman’s reasons. A few weeks before the hearing of the appeal, Sunday World abandoned a further procedural challenge to the Ombudsman’s decision.

Background

4. No outside complaints about the photograph were received by the Ombudsman’s office. Section 1.8 of the Press Council’s Complaints Procedures provides that: ‘Where, within 30 working days after the date of publication there has been no complaint, but the Public Advocate is of the view that a prima facie contravention of the Press Code has been committed and it is in the public interest, (s)he may file a complaint with the Ombudsman for adjudication…’.
5. This the Public Advocate had done, leading, after the receipt of fairly extensive written submissions from both parties, to the Ombudsman’s making the finding referred to in para 3 above.
6. The photograph about which the Public Advocate complained is of three girls who appear to be in school uniform and on school grounds. Their faces are obscured. The girls are demonstrating a suggestive position but they are, however, fully clothed and apparently not engaged in sexual conduct.
7. The photograph was used to illustrate an article headed: ‘@explicitschoolpics — Department in shock and threatens action on Twitter pornography’ (‘@explicitschoolpics on Twitter shocks education department’ on the web version), with the page 1 teaser headlined ‘Not So Tweet: Call for probe into naked schoolgirls on Twitter’. The article’s introduction reads ’An increase in the number of images of naked and semi-naked schoolgirls on Twitter has sparked concern – with the department of education demanding an investigation’.

The Issues

8. The main issue in the appeal was whether or not the Ombudsman was correct in finding that the picture was child pornography.
9. The appellant argued essentially that the Ombudsman was wrong in holding that the image constituted child pornography and that context and intention were irrelevant when determining whether what was being depicted constituted child pornography.
10. In our view, in determining whether or not the picture constituted child pornography the Ombudsman should have had regard to the fact that the Code itself does not attempt to define child pornography but instead expressly adopts the definition used in the Film and Publications Act 65 of 1966. The Code’s section 8.2 reads as follows: ‘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.’
11. Thus we agree with the Sunday World that the Ombudsman should accordingly have considered rulings that interpret the definition of child pornography under the Film and Publications Act.
12. We agree with the newspaper that the Ombudsman’s approach was clearly inconsistent with the approach set out by the Constitutional Court in De Reuk v Director of Prosecutions and Others 2004 (1) SA 406 (CC) at para 33, namely that ‘it is not possible to determine [in our view, in some instances] whether an image as a whole amounts to child pornography without regard to the context.’ The present is a case where regard should have been had to the context.
13. The Ombudsman should also have had regard to the ruling of the Film and Publication Appeal Tribunal in the Of Good Report matter where that body had expressly followed and developed the Constitutional Court’s approach in a case analogous to this one. As a result the Ombudsman had disregarded the correct test, which would have involved a nuanced analysis of context and intention including the question of whether the photograph was intended to stimulate erotic as opposed to aesthetic sentiments. .
14. We are also of the view that the Ombudsman erred in disregarding the fact that, as the newspaper argued, the Editor had exercised care and consideration. In this respect at the hearing of the appeal the Editor repeated his assurance that the picture used was the least harmful of those available and we have no reason to doubt what he said.
15. The respondent, on the other hand, failed in our view convincingly to make, let alone prove, the point that the picture was erotic. Questioned by the panel, she could not say in what way the picture was pornographic.

Panel’s ruling

16. We have concluded that, looking at the picture itself and having regard to the context of its publication, we are not persuaded that it constitutes child pornography as defined in the Code. We therefore uphold the appeal and overturn the Ombudsman’s ruling, as well as the sanction imposed.

Dated this 28^th day of January 2014

Judge BM Ngoepe, Chair

Moshoshoe Monare, Media Representative

Philip van der Merwe, Public Representative