Mr Simon Pamphilon vs Sunday Times
SUMMARY
The headlines to the stories in dispute read, Premier Makhura extols the high quality of life in Gauteng; Township businesses paid R22 billion for their services; Changing young lives – 500,000 at a time (published on 10 March 2019).
This ruling by Press Ombud Pippa Green was based on the Press Code that was in effect before 30 September 2022.
Simon Pamphilon, a lecturer at the School of Journalism and Media Studies at Rhodes University, complained about sponsored copy in the newspaper. He said it was in breach of Section 2.4 of the Press Code, which stated that “the media shall keep editorial material clearly distinct from advertising.”
The top left of the page was flagged with a banner that read, Special Feature; Brought to you by the Gauteng Provincial Government.
The page contained the following pull-quotes of statistics, typical of a Sunday Times layout, being the following:
- 2m houses delivered by the government in Gauteng providing decent shelter to more than 4-million people;
- 20-million health care users served a year nowadays by Gauteng public health system compared to 7-million in 1994; and
- 163-million: Number of people employed in Gauteng economy, from 2.6 million in 1996.
The blurb on the main story read, Province’s residents are the most satisfied in SA, he says. All three articles were attributed to a “Special Reporter”. There was no “News” flag on the page, which the Sunday Times typically did to distinguish its news pages.
Green dismissed the complaint, arguing that the banner, the absence of a “News” flag, and the bylines “Special Reporter” were sufficient “to just place the Sunday Times on the right side of the line that denotes ‘clear’ distinction”.
She did encourage the newspaper, though, to find clearer distinctions between “advertorial” copy or “native advertising” and editorial copy in the future. In this case, she said the line was closely straddled, and some readers might have been deceived. The Ombudsman added that she was encouraged that the newspaper had committed to defining this line more clearly in future.
THE RULING ITSELF
This ruling is based on written submissions of Mr Simon Pamphilon, a lecturer in the Journalism Department at Rhodes University and Ms Susan Smuts, internal ombudsman of the Sunday Times, as well as follow-up interviews with them. The Ombudsman also relied on expert advice from journalism trainer and former editor, Mr Chris Roper, as well as on her own research on comparative international and national situations.
Complaint:
Mr Pamphilon complains that the Sunday Times breached Section 2.4 of the Press Code, which states that “the media shall keep editorial material clearly distinct from advertising.”
Complainant: Simon Pamphilon, School of Journalism and Media Studies, Rhodes University
Date of Article: March 10, 2019
Headlines: Special Feature; Brought to you by the Gauteng Provincial Government
Three articles: Premier Makhura extols the high quality of life in Gauteng; Township businesses paid R22 billion for their services; Changing young lives – 500,000 at a time
Page: 3
Online: No
Author/s: “Special Reporter”
Respondent: Ms Susan Smuts, Internal Ombudsman, Sunday Times
The text
Mr Simon Pamphilon, a lecturer in the School of Journalism and Media Studies at Rhodes University complains about sponsored copy that ran on p3 of the Sunday Times on March 10.
The top left of the page is flagged with a banner that reads: “Special Feature; Brought to you by the Gauteng Provincial Government”.
There are three stories on the page: the lead story is headlined: “Premier Makhura extols the higher quality of life in Gauteng”; the story below that is headlined “Township businesses paid R22bn for their services.” And the third, a column running down the right-hand-side of the page is headlined “Changing young lives – 500,000 at a time.” All the stories are accompanied by pictures; the picture for the main story is one of Gauteng Premier, David Makhura.
On the page, too, are pull-quotes of statistics, typical of a Sunday Times layout, being the following:
· 1.2m Houses delivered by the government in Gauteng providing decent shelter to more than 4-million people.
· 20-million health care users served a year nowadays by Gauteng public health system compared to 7-million in 1994;
· 5.163-million: Number of people employed in Gauteng economy, from 2.6 million in 1996
The “blurb” on the main story reads: “Province’s residents are the most satisfied in SA, he says.”
All three articles are attributed to a “Special Reporter”.
There is no “News” flag on the page, which the Sunday Times typically does to distinguish its news pages.
The arguments
Mr Pamphilon complains that:
· The entire page is given over to articles promoting the Gauteng government and Premier David Makhura
· The typefaces used in the body type, headlines and captions are similar to the typefaces used in normal editorial copy
· The general layout and the use of the pull quotes to highlight statistics are “identical” to those used in editorial pages
· The blurb in the tramlines is the same as blurbs used in normal editorial copy
· The header: Special Feature, and the byline, Special Reporter, could easily be used in editorial content
· The overall impression is that the copy is normal editorial content, whereas it is paid-for advertising content
· The ordinary reader could be misled into thinking that the copy is written by a disinterested reporter, whereas its purpose is to promote the provincial government and the premier
· The only indication it is paid-for content is the “small;” sub-head under the folio head which reads “Brought to you by the Gauteng Provincial government”.
He argues this transgresses Section 2.4 of the Press Code which states: “The media shall keep editorial material clearly distinct from advertising and sponsored events.”
Response
Ms Susan Smuts, the internal ombudsman of the Sunday Times, responded initially that the correct body to adjudicate this complaint was the Advertising Standards Authority. However, she also made the following submissions:
· The readers were “prominently alerted” in the balcony (the top strip of the page) that the content was a “Special feature: Brought to you by the Gauteng Provincial Government”. She argues there was “no ambiguity or room for interpretation” in this notice as the content was clearly flagged. “On its own, this notice should be fatal to the complaint.”
· In addition, the main headline on the page is not the same font as other headlines in the editorial body of the paper. It is a sans serif typeface whereas the other main headlines in the paper are serif typefaces. She says although sans serif fonts are used elsewhere in the paper, they do not feature in the main headlines of the news pages
· The page did not carry the “News” label that all news pages carry
· She concedes that other design elements – such as the stats in pull quotes – were similar to other pages but points out the Sunday Times does not have a “special reporter” byline on any of its other news pages.
· She argues the obligation in terms of the Press Code is to point out when an outside organization has contributed to the cost of news gathering; yet the Press Code does not proscribe the use of particular typefaces on these pages. “The underlying principle is that our readers must not be deceived or, put differently, should know who is delivering the content”, She argues the mechanism used to ensure this is left to the publication. In this case “it was a prominent notice at the top of the page”. A “reasonable reader” would understand this is not an editorial page.
· The paper is still discussing how to present such content, including design elements. The newspaper welcomes feedback but will decide for itself, with regard to the response of the readers.
· International research, including by Stanford University’s graduate school for business, has found that readers are good at distinguishing editorial content from “native advertising” – a form of sponsored content.
· Native advertising is now a feature of major publications around the world, including in the New York Times, the Wall Street Journal, the Financial Times, the Guardian and the Washington Post. Local newspapers such as the Mail&Guardian and City Press also use it. Elsewhere – for instance, the Independent (in the UK)– editors and writers have both editorial and commercial responsibilities. Other newspapers insist on a strict separation between editorial and commercial staff.
· The FT offers “paid posts” to brands published on its home page. It says its audience research has found that 74% of its readers “find value” in the promoted content. Other publishers say “native advertising” or sponsored content offers more value than a traditional ad.
· Various newspapers around the world use different labels to denote paid-for content, such as “paid content” (the Guardian), or “sponsored content” (the Atlantic).
· The point of the above is to show the varied approaches newspaper around the world have to dealing with this type of advertising.
· The Federal Trade Commission in the United States issued guidelines for native advertising in 2015. Although South African publications are not bound by these, there is merit in considering them. Among its points was this: “Regardless of the medium in which an advertising or promotional message is disseminated, deception occurs when consumers, acting reasonably under the circumstances, are misled about its nature or source, and such misleading impression is likely to affect their decisions or conduct regarding the advertised product or the advertising.”
· Sunday Times readers, who are generally well informed, are unlikely to be misled by an advertising feature.
· Advertorial copy is common in South African newspapers. Native advertising is “merely a more sophisticated form with better content.”
Further Arguments
In response to Smuts, Pamphilon points out that the ASA has gone into voluntary liquidation, yet even to take the complaint to its successor, the Advertising Regulatory Board, is a moot point.
His point is that the advertising feature poses as editorial copy and that the “balcony” – “Special Feature: Brought to you by the Gauteng Provincial Government” – is insufficient to differentiate it from editorial copy.
In the interview, he said readers “don’t generally look at folio heads”. Several of his colleagues and students had not seen “immediately” that this was not an editorial page. It was a piece of “puffery” for the Gauteng government disguised to look like an editorial page, particularly given the similarity of the font and pull-quotes.
I asked him for his view on the content. He said: “The stories were written like news reports and they come across as such; many readers would be forgiven for thinking this is true and they [the Gauteng government] are doing a good job.”
On the tightening margins and slowing revenue streams of newspapers around the world, and the international move to “native advertising”, he said: “Newspapers are in dire straits, that’s true. But then where do you draw the line? It’s not sufficient to flag [the sponsored content] at the top because the three sections (stories) were all part of sponsored content.”
I asked Susan Smuts about the significance of running the sponsored feature on page 3, traditionally the second most important news page, about the type face being too similar, about the “flagging” and about the content.
She says advertisers – in this case the Gauteng Provincial Government – pay a premium for “loading” onto a particular page. Usually, page 3 of the Sunday Times is given over to “fluffier” celebrity-type stories, and is not, traditionally, a serious news page.
On the criticism that the type-face was too similar to the editorial body of the paper, she said each publication has a license for particular type faces.
In the past few months, the paper has used two other sponsored features; one, sponsored by the Department of Water and Sanitation, accidentally dropped a logo. The Democratic Alliance complained about that, and the paper apologized. However, she says, “ordinary readers” have not complained about any of the sponsored content.
She indicated the paper was happy to consider feedback on paid-for features, such as changing the typeface to be more distinct from the main body; she also admitted it may have been a mistake to use the numbers and pull-quotes in a manner similar to the main paper.
The stories themselves were written by people trained as but not working as journalists and who do dedicated work for the “native advertising” unit.
The unit is separate from the newsroom and it does not report to the news editor. They are briefed by the client, in this case the Gauteng Government.
The unit straddles editorial and advertising, so the editor would sign off on the page but a news editor would not edit the content.
I asked if the paper could make this kind of sponsored copy more distinct from editorial copy? She replied: “It said ‘Special Feature: Brought to you by…’ at the top of the page. I don’t know how much clearer we could have made it.”
However, she says the newspaper is open to “feedback” from critics and readers. Many newspapers are in dire financial straits and this kind of “native advertising” is attractive to advertisers. “but at the same time, we don’t want to undermine our credibility”.
Analysis
I consulted veteran journalist and journalism trainer, Chris Roper, who recently published an article in the Daily Maverick on the difficulty of getting people to pay for news, and its implications for the media industry. (https://www.dailymaverick.co.za/opinionista/2019-04-03-no-news-is-very-bad-news/)
He notes how the “ravages of declining revenue” threaten news journalism – defined as “journalism that is time-intensive, edited by more than one person, and that’s about setting the news agenda.”
To counter revenue falls, newspapers around the world that have built up credible brands are today selling, not just their space, but their credibility. This is why “native advertising” has become an international phenomenon, used by such pre-eminent publications as the New York Times, the Wall Street Journal and the Financial Times.
The Stanford Graduate School of Business Study referred to by Smuts undertook research into whether native advertising (for consumer products) online deceived consumers and how it influenced purchase behaviour. It “found that [readers/consumers are] very good at distinguishing native ads from digital content — but the ads still exert significant influence on our shopping behavior.” (https://www.gsb.stanford.edu/insights/disguised-native-ads-dont-fool-us-anymore)
I raise this because Smuts mentions this research in defence of the Sunday Times. However the research is largely into online advertising and for commercial products; also, as the researchers point out, it is advertising designed to cope with “the rise in mobile browsing behavior, and because banner ads are hard to implement on mobile screens, and are known to be not very effective.”
A more salient international comparison is perhaps with the well-known publication, The Atlantic, which in 2013, published online a piece headlined “David Miscavige leads Scientology to milestone year.” It was printed in the same font and with the same layout as other pieces in the publication Underneath the head was a small banner in yellow that said “Sponsored Content.”
It was placed just days before a piece critical of Scientology was due to appear in The New Yorker magazine. A few days later, the content was withdrawn and The Atlantic apologised for running it. It was heavily criticized by other media outlets, not principally for running “sponsored content”, but for running something so at odds with its readership, failing to distinguish it sufficiently, and then censoring online negative comments beneath the piece. (https://edition.cnn.com/2013/01/16/opinion/schafer-atlantic-scientology-ad/index.html; https://www.washingtonpost.com/blogs/erik-wemple/wp/2013/01/15/the-atlantics-scientology-problem-start-to-finish/?utm_term=.91ae39de6425 ).
So although “native advertising” is common practise, the manner in which it is executed and the audiences at which the copy is targeted are critical.
The content of the Gauteng Government promotion
The content and feel of the Gauteng government promotion was not, perhaps, so vastly at odds with Sunday Times editorial copy. The articles sourced credible references for the intro on the main story “The quality of life of the general populace of Gauteng province has improved since the administration of premier David Makhura took over five years ago.
“This was revealed by the recent Gauteng City region Observatory Quality of Life Survey..” The other two stories were a typical example of “human interest” stories used to illustrate bigger-picture issues. The story on township businesses, for instance, began: “When Grace Hinana noticed that travel and tourism were booming in her township, she closed her business of selling liquor and opened a bed and breakfast.”
The other was how a young unemployed mother’s life was changed by a provincial government training, skills, and job placement initiative.
Perhaps the “feel” is best summed up by Smuts who said that while the content “was not produced for journalistic purposes”, it nonetheless employed journalistic techniques and story-telling skills.
For Pamphilon, this adds to the offence: the stories came across as news reports. “Many readers would be forgiven for thinking this is true and they [the Gauteng government] are doing a good job.” He argues it was tantamount to “deceiving” readers.
He is sympathetic to the argument about the revenue squeeze on publications but these kinds of features provoke the question; “Where does one draw the line?”
Considerations
The Press Code states that the media shall “keep editorial material clearly distinct form advertising and sponsored events.”
The key word in this case is “clearly”. How clear is clear? Is a banner at the top of the page clear enough when the typeface and layout look similar? Is the byline “special reporter” enough to denote a writer not on the editorial staff?
Each newspaper, as Roper points out, has its own “rulebook”.
The possible ethical pitfall is that such advertising gives brands the “credibility of your content,’ he says. Thus there is pressure on publishers to align it as closely as possible to the look of the publication.
In the case of the Sunday Times sponsored copy, there was indeed a clear flag on the top of the page in the “balcony”. There was also no “News” flag on the page. Yet on the other hand, some readers may not have picked up the subtle differences in type-face, and the pull-quotes were identical to the style used in the editorial body of the newspaper.
However, Smuts has indicated the editorial managers of the newspaper were also uncomfortable with these similarities. The content is not edited by the newsroom, nor approved by it, although the editor sees and signs off the final page.
Roper was also uncomfortable but agreed that the banner indicating this was sponsored content meant the newspaper just “squeezed” onto the acceptable side of the line that should separate editorial from advertising content.
Finding
The banner proclaiming the page as “Brought to you by the Gauteng Provincial Government”, the absence of a “News” flag, and the bylines “Special Reporter” are sufficient to just place the Sunday Times on the right side of the line that denotes “clear” distinction.
Yet the newspaper is encouraged to find clearer distinctions between “advertorial” copy or “native advertising” and editorial copy in the future. In this case, the line was closely straddled and some readers may have been deceived – which transgresses the compact of credibility and trust that must pertain between the media and the public.
The Ombudsman is encouraged that the newspaper has committed to defining this line more clearly in the future.
The complaint is dismissed but we urge the Sunday Times to take note of the comments above.
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 [email protected].
Pippa Green
Press Ombudsman