Appeal Decision: Panda Knowledge Factory NPC vs Daily Maverick

SUMMARY

The headline to the story in dispute read, Kung-Flu Panda: Dodgy analytics or pandemic propaganda? (published on 28 February 2021).

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.

Panda Knowledge Factory NPC applied for leave to appeal the ruling of the Ombud dated 10 May 2021. There were several complaints, set out over pages and pages.

In the end, the Ombud dismissed all the complaints but one, namely, that the article failed to state that a document on which it relied had been published a long time ago and that it was not recent.  Panda sought leave to appeal the dismissal of the rest of the complaints.

The article in dispute was about lock-down measures to contain the spread of the Covid-19 virus.

The crux of the complaint revolved around the allegation that Daily Maverick had accused Panda of criminality by virtue of it disseminating disinformation about the Covid pandemic.

Judge Ngoepe declined to determine which of the two parties were right – that was not the Press Council’s job, he opined.

He rejected Panda’s argument that:

• personal data of two people should not have been published – he remarked that “giving information about those people was necessary in order to contextualize their role”; and
• a report by Prof Van den Heever should not have been admitted, as it was relevant to the matter.

The application was dismissed.

THE RULING ITSELF

In the matter of

PANDA KNOWLEDGE FACTORY NPC                                                         APPLICANT

AND

1. This is an application by Panda Knowledge Factory NPC (“applicant”) to appeal the Ruling of the Ombud dated 10 May 2021. The Ruling was on a complaint filed by the applicant against Daily Maverick (“respondent”) against an article by the respondent published on 28 February 2021 with the headline “Kung-Flu Panda: Dodgy analytics or pandemic propaganda?” There was a number of complaints, set out over pages and pages. These complaints, and the detailed responses by the respondent, are a matter of record and are dealt with by the Ombud. In the end, the Ombud dismissed all the complaints and upheld one, namely, that the respondent breached clause 1.2 of the Press Code, which reads that

“the media shall present news in context and in a balanced manner, without any intentional or negligent departure from the facts whether by distortion, exaggeration or misrepresentation, material omissions or summarization”.

In this respect, the Ombud held that respondent failed to state that a document on which it relied, had been published a long time ago and was not recent. A sanction was then imposed. The applicant seeks leave to appeal the dismissal of the rest of the complaints.

2. It would be convenient to contextualize the dispute, stripped of its details. The applicant admits in its papers that it is critical of the lock-down measures imposed to contain the spread of the Covid-19 virus. It claims that it enjoys support from a number of scholars and scientists. On the other hand, respondent has made it clear that it would not publish information which would make it break the provisions of the Disaster Management Act 2005 by disseminating information which in its view is not scientifically supported and which seeks to undermine lock-down measures imposed by the Government. It is important to note that the Ombud also relied on a research that had been conducted at the University of the Witwatersrand (Prof Van den Heever) that the Covid-19 pandemic has had a devastating effect. I make this point for the following reason: when people are actually dying, and daily mortality statistics are given, applicant, in pushing the information it did, ought to have known that it was entering a highly controversial and emotive terrain. This is the context within which the complaint had to be considered. It was not theoretical that even as the applicant disseminated its information, thousands of people in this country alone, and millions all over the world, were, and indeed continue, losing their lives and families daily get bereaved. The applicant should have expected a robust response. The applicant cannot use the mechanism offered by the Press Code to seek to validate what it propagates. It was a treacherous and highly controversial terrain that it elected to enter; some discomfort had to follow.
3. There is one point I need to refer to. Applicant, in the body of its complaint, contends that in the article complained about, respondent unnecessary gave the personal data of some two people, one of whom was a Mr Castledene. Applicant argued that the intention was to create a chilling effect on the people who supported its stance, or to have pressure exerted on them by their employers to desert the applicant in its stance. That is not the impression I got; I think that giving information about those people was necessary in order to contextualize their role.
4. In its papers opposing the application for leave to appeal, the respondent states the following: “The crux of PANDA’s complaint seems to revolve around the allegation that (respondent) accused them of criminality by virtue of them disseminating disinformation about the COVID pandemic”.  Indeed that seems to be the crux of the complaint. To determine whether or not information is “misinformation” or “disinformation” would require one to adjudicate the merits of the dispute as to who is right. It is not the business of the Complaints Procedure of the Code to do so in a matter like this; perhaps it is not even desirable to do so. If need be, let the debate carry on.
5. In its application for leave to appeal, the applicant argues that the report by Prof Van den Heever should not have been admitted. The reasons behind this proposition are not sound. Whether the document is under oath or not, is beside the point: the professor takes responsibility for his views and for the facts he gives. In fact, that he offered his views demonstrates the public interest toward the information propagated by the applicant. Nor was there any breach of confidentiality as contended for by the applicant in the course of the Ombud’s interaction with the professor.
6. For an application for leave to succeed, an applicant must show reasonable prospects of success before the Appeals Panel. The Ombud has dealt with the issues thoroughly, and correctly. For the reasons given in the Ruling, considered within the context I set out above earlier, it is my view that the applicant has no such prospects of success.
7. The application is therefore dismissed.

Dated this 11th day of June 2021

Judge B M Ngoepe, Chair, Appeals Panel