Appeal Hearing Decision: Daily Voice vs Shaun Westley (Minority Decision)

Minority Decision by Mahmood Sanglay on the Appeals Panel with Judge Bernard Ngoepe, and Neville Woudberg.

Date of Appeals Panel Hearing:

Wednesday 26 September 2016, Belmont Conference Centre, 9.00am

Appellant:

The Daily Voice, represented by Mr Terblanche

Respondent:

Shaun Westley, represented by Adv Bishop

1. The nature of the dispute between the parties as well as the arguments, are set out in the Majority Decision and the complaint centres on the headline ‘MAAK DIE MOFFIE VREK’.

The ruling of the Press Ombud and the deliberations of the Appeals Panel

1. The Ombud upheld the complaint, arguing that Appellant was in breach of articles 5.1 and 5.2 of the Code of Ethics and Conduct. He did not dispute the newspaper’s claim that the headline accurately reflects the actual words of the attackers, nor that it accurately reflects the contents of the article.
2. The Ombud argued that the headline was derogatory and that it is likely to be perceived by homophobes as justification for violence against homosexuals. He thus ordered Appellant to apologise to the public and to the complainant for using the derogatory term ‘moffie’ in its headline, and for publishing a headline that may lead to violence against gay people.

[4]          The Majority on the Appeals Panel upheld the appeal mainly because the headline and the contextualising sub-headline comply with article 10.1 which governs headlines. The Majority is of the view that reliance on articles 5.1 and 5.2 is ‘misconceived’ and that such reliance creates ‘an unnecessary contradiction’ between article 10.1 on the one hand, and articles 5.1 and 5.2 on the other.

The Minority argument

Reliance on ‘contradictory’ articles

[5]          The Minority agrees there is no breach of 10.1 of the code and therefore there is no dispute in this respect of the finding by the Majority.

1. However, the Minority cannot agree that reliance on 5.1 and 5.2 creates an ‘unnecessary contradiction’ between 5.1 and 5.2, on the one hand, and 10.1 on the other. Moreover, the Minority is of the view that a fair and balanced decision in this matter cannot be obtained by relying exclusively on 10.1.
2. Whilst 10.1 deals with the relevant aspect specifically relating to headlines, 5.1 and 5.2 deal with discrimination and hate speech which are subsumed by our founding constitutional values of human rights and human dignity. The primacy of the latter in a case involving a complaint about human dignity is patent. This cannot be disputed.
3. It is common cause that the complainant raises a matter that essentially relates to human dignity and sexual orientation. The Minority therefore submits that the conclusion that because the headline complies with 10.1, it is not necessary to consider of 5.1 and 5.2 in this matter, is deeply flawed.
4. Furthermore, it is important to note that section 9(3) of the Bill of Rights protects anyone from unfair discrimination, directly or indirectly, and specifically in respect of sexual orientation. Therefore, given the substance of this complaint, it is a fallacy to make a finding based on consideration of the provisions of 10.1 of the code relating to headlines, without balancing such consideration with the more important provisions relating to human dignity in 5.1 and 5.2.
5. In light of the primacy of this provision relating to human dignity, even total compliance with 10.1 does not preclude consideration of articles 5.1 and 5.2 of the code. Nor does total compliance with 10.1 adequately mitigate any harm done by the use of the word ‘moffie’.
6. Furthermore, there is no ‘unnecessary contradiction’ between the two relevant articles of the code. Instead, there is a compelling obligation on the Appeals Panel, in this matter, to appropriately balance the lesser weight of 10.1 against the greater weight of 5.1 and 5.2. I therefore respectfully submit that the Majority erred in failing to give any consideration to 5.1 and 5.2 of the code.
7. The Majority dismissed the complaint because the headline is (a) a verbatim rendition of the attackers’ words; (b) quoted in inverted commas; (c) contextualized by a sub-headline; (d) a reasonable reflection of the contents of the article and (e) not likely to be read by the average reader as inciting hatred against gay people, but rather as a step towards fighting homophobia by exposing it. The Minority is of the view that, in light of the relevance of 5.1 and 5.2 in this matter, these reasons warrant closer examination.

Quotation marks do not absolutely render its contents acceptable

1. According to the Majority the use of quotation marks, because it complies with 10.1, renders the use of the word ‘moffie’ acceptable. Whilst this may generally be the case with media reports on controversial utterances, the Minority argues that such a position cannot be absolutist and that there are exceptions, as in the case of the headline in this matter.
2. The Minority submits that the quoted headline, by and in itself, causes harm. This is evident in normative practices in society and in the compelling evidence in the academic research presented by Respondent as well as other research.[1]
3. Offensive labelling, when reported in popular discourse, particularly in tabloid media such as the Daily Voice, do more than convey denotative meaning. They also convey connotative meaning and impact on the target audience in a range of different ways. One of these ways is to compound the offence by reinforcing the stereotype and possibly incite violence, as in the case of the headlines used by Appellant.
4. There is also compelling evidence in sociological research that tabloid media, as a powerful and dominant agent in popular social and cultural discourse, is capable of influencing behaviour in subtle and unintended ways. One such way is through the actual use of offensive labelling in popular discourse such as tabloid media.
5. In a social and cultural milieu in which homophobic violence is increasingly the norm a homophobe is likely to read the words ‘MAAK DIE MOFFIE VREK’ as an imperative calling for violent action against homosexuals. Homophobes are likely to find vindication for their homophobic attitudes and behaviour in such a headline. This is further augmented by the standard bold typography associated with tabloids.
6. The Minority notes that no evidence refuting this argument is cited. Instead, the argument is dismissed because the headline complies with 10.1 of the code. Hence the Minority is of the view that the compelling evidence of harm, both as argued by Respondent and in independent research, should have been taken into account.

Breach of article 9.1 of the code

1. Insofar as the headline does compound the indignity inflicted on homosexuals and possibly incite homophobic violence article 9.1 of the code stipulates:

Due care and responsibility shall be exercised by the media with regard to the presentation of brutality, gratuitous violence, and suffering: material which, judged within context, should not sanction, promote or glamorise violence or unlawful conduct, or discrimination based on race, national or ethnic origin, colour, religion, gender, sexual orientation…

The headline is therefore also in breach of 9.1 of the code.

1. It is not likely that a homophobic reading of the headlines will be mitigated by quotation marks or by the conventions of contextual subheadlines that fully comply with 10.1 of the code. The Minority is not convinced that fair editorial discretion was applied in using a headline that offends homosexuals and that potentially incites homophobic violence.

The headline with potential to both fight and to promote homophobia

1. The Majority correctly argues, and this is also supported by research, that the headline serves to inform the reader of the offence and to make ‘a determined call to fight and expose homophobia’ [para 6]. It is reasonable to assume that some readers will interpret the headline in this way.
2. However, the evidence also shows, particularly in the case of the Western Cape tabloid reader audience, that another way in which the reproduction of offensive labelling impacts on readers is to compound the indignity inflicted on homosexuals and to incite homophobic violence.
3. On the one hand, the headline, by simply repeating an offensive expression, cannot entirely be said to have the effect of fighting and exposing homophobia. On the other, it cannot entirely be said to have the effect of compounding the indignity inflicted on homosexuals and inciting homophobic violence. Given the submission and evidence presented by Respondent, it can reasonably be said to do both.

Preamble of the code: Express obligation to avoid unnecesary harm and to protect the vulnerable

[24]      The Majority argues (para 6) that there was no ‘obligation on Appellant to hide the truth, simply because the truth is ugly.’ The Minority concurs. However, according to the preamble of the code there is an obligation to avoid unnecessary harm and to show ‘special concern for children and other vulnerable groups’. There is thus an express obligation to balance reporting in the public interest with avoiding unnecessary harm and taking due care to protect this vulnerable group.

[25]      The headline, as argued above, evidently does have the likely effect of compounding the indignity inflicted on homosexuals and of inciting further homophobic violence. Furthermore, the code reflects an express duty of care on the media to avoid unnecessary harm, particularly in respect of vulnerable groups. Therefore, the Minority submits that Respondent’s obligation to avoid unnecessary harm and to show special concern for the protection of this vulnerable group should have been tested.

1. Therefore the Minority deems it necessary to raise the question: did Appellant take reasonable care to avoid unnecessary harm to homosexuals?
2. This question can be categorically answered in the negative if there are alternative ways of presenting the headline. The Majority concedes (para 6) that ‘respondent could have chosen to word the heading differently’ and the Minority concurs. And this choice of an alternative headline need not have been made at the expense of ‘exposing in full the ugliness of homophobia perpetrated’ (para 6, Majority decision). Reasonable alternatives, like ‘Gay man threatened with murder’, that more accurately convey the content of the article, were put to Respondent. It should be noted that Respondent did not dispute their usefulness as alternative headlines.
3. We can therefore conclude Appellant failed to take reasonable care to avoid unnecessary harm to homosexuals, by publishing a headline that is likely to compound the indignity of this vulnerable group and potentially incite further homophobic violence.

Appealing to emotions

1. The Minority submits that this decision is not influenced by emotion. The treatment of human dignity and the right to safety and security in the constitution, in legal discourse and in relevant sociological research is objective and academic. This also applies to conclusions and findings made in these respects. The Minority has adopted the same approach in this decision.
2. The media, as a powerful agenda-setting agency, bears some responsibility to ensure that the dignity and safety of the vulnerable in society are protected. I question Respondent’s claim that their sole aim was the public interest and to ‘fight and expose homophobia’. The Minority is of the view that the sensational nature of the headline and its potential to generate newspaper sales is a powerful driver of editorial decision making. This was put to Appellant and was not disputed.
3. There are several other considerations that lend further support to the position that the editorial decision to use a quote containing the word ‘moffie’ compounds the indignity inflicted on homosexuals and potentially incites homophobic violence. One is that the headline reinforces victim blaming by means of a quote that refers to a vulnerable group in pejorative terms, as opposed to the crime of the perpetrator. The suggested alternative ‘Gay man threatened with murder’ may be interpreted as ‘a determined call to fight and expose homophobia’. Instead, the editorial decision by Appellant detracts from this claim.
4. The Minority is confident that Appellant is well aware that the reproduction of pejorative language in headlines such the one complained about is not appropriate for achieving this end. Therefore, I am eqaully confident that Appellant has little or no interest in fighting and exposing these evils.
5. On the contrary, the evidence indicates that Appellant has an interest in generating increased sales of newspapers through sensational headlines such as the one under consideration.
6. The Constitution of South Africa as well as the letter and spirit of the Code of Ethics of South Africa require an appropriate balance between challenging normative understandings and practices that undermine human rights and human dignity one the one hand, while protecting freedom of the media, on the other. The Minority is concerned that the Appeals Panel’s reading and interpretation of the code tends to re-inscribe practices that, at least in spirit, are inconsistent with the values of our code and our constitution.

Decision of the Minority

[11]      The Minority is of the view that the appeal should be dismissed.

1. In addition, the Minority finds that Appellant is also in breach of 9.1 of the Code of Ethics.

Dated: 1 November 2016

Mahmood Sanglay, Member, Press Representative