Appeal Decision: GroundUp vs Joseph Winer
SUMMARY
The headline to the story in dispute read, Quack claims about oxygen treatment are dangerous – Charlatans exploit patients for financial gain, say doctors (published on 15 March 2019).
This ruling by the Appeals Panel was based on the Press Code that was in effect before 30 September 2022.
The introductory sentence said experts warned that Hyperbaric Oxygen Therapy could not treat cancer, stroke, Alzheimer’s disease, autism, or arthritis “as some quack outfits are claiming”. It went on to report that the company Oxygenate claimed that a mHBOT (mild hyperbaric oxygen therapy) could be used for those diseases. This treatment was generally used to treat decompression sickness in underwater divers.
Joseph Winer, managing director of Oxygenate, complained that the article misrepresented some of the treatments his company offered, and he had not been offered a right of reply.
The Ombud dismissed the first part of the complaint and upheld the second one – upon which Groundup was grated leave to appeal.
The only issue before the Panel was whether Winer should have been given a right of reply.
The Panel noted that the Ombud’s was based on the fact that the publication had named Oxygenate in the article.
Groundup argued that it was under no obligation to ask Winer for comment because it was a scientific article, and because it had taken the data from the company’s own website. The publication also questioned the Ombud’s modus operandi in that she had conducted an investigation ex parte, while she should have held an informal hearing to gather the information she had been after.
The Panel upheld the appeal and set aside the Ombud’s ruling that GroundUp had breached the Press Code.
THE RULING ITSELF
SUMMARY
The headline to the story in dispute read, Quack claims about oxygen treatment are dangerous – Charlatans exploit patients for financial gain, say doctors (published on 15 March 2019).
This ruling by the Chair of the Appeals Panel Judge Bernard Ngoepe was based on the Press Code that was in effect before 30 September 2022.
Joseph Winer, managing director of Oxygenate, complained that the article contained some inaccuracies, and he had not been given an opportunity to comment.
The heart of the first complaint nestled in the following sentence: “The South African Company Oxygenate claims mHBOT can be used for a string of indications including cancer, stroke, Parkinson’s disease, Alzheimer’s disease, autism …”
The Ombud dismissed this complaint, arguing that the reportage was a scientific article based on the views of some medical experts.
Regarding the second complaint, the Ombud ruled that because “of the arguments about science, I am not suggesting that Oxygenate be given a right of reply. However, in terms of the Code, Groundup should not have mentioned the company without approaching it for comment”. A sanction was imposed. Groundup then sought leave to appeal against this finding.
Judge Ngoepe opined that the application showed reasonable prospects of success. The application for leave to appeal was granted.
THE RULING ITSELF
In the matter between
GROUNDUP APPLICANT
AND
JOSEPH WINER RESPONDENT
MATTER NO: 4342
DECISION ON AN APPLICATION FOR LEAVE TO APPEAL
1. Mr Joseph Winer (“respondent”) lodged a complaint against Groundup (“applicant”) in respect of an article published by the applicant on 15 March 2019. Mr Winer was complaining on behalf of his company known as O2xygenate (or companies related to it). For the sake of convenience, it will be Mr Winer who will herein be cited and referred to as the complainant or respondent. The article said, in essence, that there were companies which falsely claimed that HBOT or mHBOT could be used to treat all sorts of medical conditions; respondent’s company was singled out as an example: “The South African Company O2xygenate claims mHBOT can be used for a string of indications including cancer, stroke, Parkinson’s disease, Alzheimer’s disease, autism …” etc. The complaint was twofold: firstly, that the article contained some inaccuracies and, secondly, that the respondent was not given the opportunity to comment.
2. The appellant’s defence to the first complaint was that the reportage was a scientific article based on the views of some medical experts. This argument was upheld by the Ombud, and the complaint was dismissed. Regarding the second complaint, the appellant said there was no need to seek the respondent’s comment; the article was based on the company’s claims contained in the company’s website, or the website of a related company. The Ombud ruled that because “of the arguments about science, I am not suggesting that Oxygenate be given a right of reply. However, in terms of the Code, Groundup should not have mentioned the company without approaching it for comment”. A sanction was imposed. The appellant now seeks leave to appeal against this finding.
3. The appellant, in its application for leave to appeal, raises a number of grounds. They are rooted in the fact that the appellant’s reportage on the respondent’s company was obtained from its (their) website(s). Furthermore, the applicant alleged a number of irregularities on the part of the Ombud; such as that the Ombud consulted outside people but failed to seek appellant’s response; that is, a breach of the audi alteram partem rule.
4. For the application to succeed, the applicant must show reasonable prospects of success before the Appeals Board. Having looked at the arguments advanced, the Ombud’s reasons for the Ruling, as well as some complaints regarding how the matter was dealt with, I am of the view that the application shows reasonable prospects of success. I cannot go into the details as the arguments will be considered by the full Panel; it would be inappropriate for me to do so at this stage.
5. The following Order is therefore made:
-The application succeeds, and the appellant is hereby given leave to appeal the Ruling of the Press Ombud.
Dated this 11th day of February 2020
Judge B M Ngoepe, Chair, Appeals Panel
