Clive Rubin vs Sunday Times

SUMMARY

The headline to the story in dispute read, Seven expert tips to help you avoid fong kongs – We speak to an expert on how to spot and avoid fake luxury goods (published on 1 March 2023).

This ruling by Press Ombud Herman Scholtz was based on the Press Code that became effective on 30 September 2022.

 

This ruling came after Clive Rubin appealed the decision of the Public Advocate (PA) not to accept his complaint.

Ruben complained that the headline was “crude and dangerous, using emotive and racially biased language, that is stereotypical, ethnically prejudicial and raises concerns about racially profiled xenophobia.”

The PA found no merit in the complaint as the “headline clearly refers to ‘fake luxury goods’ (already mentioned in the subheading), and not to any group of people”. He quoted from the Urban Dictionary where “fong kong” was defined as something that was obviously fake.

The newspaper agreed: “The headline was indeed a reference to ‘fake luxury goods’ using the term in common usage in South African colloquial English. It carries no xenophobic or racist meaning.”

Scholtz pointed out that there was a distinction between descriptions that might be offensive to certain readers but were not discriminatory or derogatory. “The test is how a reasonable reader would understand the words in question and whether the words in question amount to discriminatory or denigratory references to people’s race, gender, sex, or other status,” he said.

He dismissed the complaint, inter alia because:

• the words “fong kongs” were not used as a reference to any person, but quite literally to counterfeit luxury goods, which was the primary and original meaning of the slang term;
• the article appeared in the lifestyle section, was confined to an issue in the fashion industry, and the sub-headline already said that “fong kongs” referred to fake luxury goods and not to people; and
• considering the context, he was not convinced that the phrase carried a sinister subtext pertaining to Chinese people.

The article’s aim was to educate those people who might be duped by sophisticated counterfeit goods.  Within this context, the use of a well-known term for counterfeit goods was not gratuitous and the subject matter was in the public interest, Scholtz concluded.

 

THE RULING ITSELF

Date of articles:                  1 March 2023

Headline of publication:   “Seven expert tips to help you avoid fong kongs”

Author:                                  Thango Ntwasa

Particulars

1. This is an appeal against the decision of the Public Advocate’s decision not to accept the complaint of Mr Clive Rubin (“Rubin”) against Sunday Times.

2. Following the decision of Judge Ngoepe in News24 vs Jurie Roux (Complaint 9507, 4 July 2022) about the procedural steps to be followed when the Public Advocate refuses to accept a complaint, the complaint was forwarded to the publisher for a response on the merits. Nicki Güles (“Güles”) responded on behalf of the publication.

3. What is therefore before me, is not just an appeal against the Public Advocate’s decision to reject the complaint, but an adjudication on the merits that have been fully ventilated.

The complaint

4. The complaint centres around Clause 5.1. of the Press code which states:

“The media shall:

5.1. avoid discriminatory or denigratory references to people’s race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth or other status, and not refer to such status in a prejudicial or pejorative context – and shall refer to the above only where it is strictly relevant to the matter reported, and if it is in the public interest.”

5. Sunday Times published an article in its lifestyle section for fashion & beauty headlined:

“Seven expert tips to help you avoid fong kongs”

6. The sub-heading elaborated:

“We speak to an expert on how to spot and avoid fake luxury goods.”

7. The expert quoted is Michael Zahariev, co-founder of an enterprise acting as what is termed “a luxury goods authenticator”. Zahariev states in the article that many consumers know, and do not mind, that the items they purchase “at flea markets or China malls” are not original. However, counterfeit goods have become so sophisticated that many people who intend to buy the original luxury brand goods are duped by being offered counterfeit goods. He then proceeds to give “tips” for consumers to spot luxury good deals that may be too good to be true, or at least too good to be the real McCoy.

8. Rubin says the headline is “crude and dangerous, using emotive and racially biased language, that is stereotypical, ethnically prejudicial and raises concerns about racially profiled xenophobia.”

The Public Advocate’s reasons

9. The Public Advocate found no merit in the complaint as the “headline clearly refers to ‘fake luxury goods’ (already mentioned in the subheading), and not to any group of people”.

10. He quotes from the Urban Dictionary that provides the following definition:

“’Fong kong’ refers to something that is very obviously fake, plastic, or non-believable. It can also be used to refer to something or someone that tries desperately hard to be cool, but falls flat.

“This term has originated amongst South African youth and was used mostly back in 2000-2002”.

11. The Public Advocate concludes that the word is not derogatory, and its use therefore does not fall foul of the Press Code.

Amplification of the complaint

12. Rubin quotes from a variety of sources, including a blog, an academic article on the website of Rhodes University, and earlier news reports.

13. With reference to the Rhodes University article, Rubin says the term was made popular in South Africa by the Hunger Boyz kwaito song titled ‘Fong Kong’. The author described the kwaito song as “a critique of low-quality Chinese imports that were perceived to be flooding the local market”.

14. Rubin lays particular emphasis on the reported words of the late Thula Kekana (known as the rapper Senyaka) and that “(Senyaka) himself understood that the use of the word would offend”. Senyaka reportedly said about the song: “We wrote this song as a protest against what the Chinese were doing to the black man.”

15. Rubin also referred me to the !gqom blog authored by lexicologist Richard Bowker. The latter describes ‘Fong kong’ as a “pejorative slang term that, as used in South Africa, means fake, imitation, counterfeit-rip-off or replica”. “It refers especially to cheap poor-quality imported merchandise, often with fake designer labels, such as clothes, shoes, sunglasses and jewellery.”

16. Bowker, in turn, quotes from the writings of Zakes Mda in one of his published books: “’Fong kong becomes more problematic than merely pejorative when it is used in a derogatory manner to refer to people – such as the African immigrants who may be hawking fong kong goods from the pavements…The implication is that they too – and other immigrants like them, whether legal or illegal – are ‘not genuine’.”

17. Rubin also quotes from an article that appeared in The Citizen, and on the website of the Human Rights Commission (“SAHRC”) dating back to 2017. Those articles recounted how Cosatu apologised for the offence given to the then Johannesburg MMC for Public Safety, Mr Michael Sun.

18. I must immediately provide the proper context to the Cosatu/Sun incident. The trade union federation was taking part in a protest march and Sun accepted the memorandum on behalf of the City of Johannesburg:

18.1 A Cosatu leader reportedly announced that the mayor had “sent a fong kong (Sun)” to receive the memorandum;

18.2 The leader reportedly said Sun “knew karate” and later referred to him as “Mr Lee from Fong Kong”.

18.3 According to a press release of the SAHRC, quoting from a News24 report, marchers also told Sun “to go back to China”, “mimicked sounds made in Kung Fu movies during fights”, and shouted at Sun not to sign the memorandum in Chinese.

19. For all the above actions which were clearly xenophobic and unacceptable, Cosatu offered its unreserved apologies.

20. Returning to the Sunday Times complaint and why Rubin believes the term offends members of the public in general and people of Chinese descent in particular, he states:

“Since it is primarily, if not exclusively, Chinese people who are manufacturing, exporting and retailing such products, the use of the term is indirectly, and inevitably, offensive to the Chinese people too. Needless to say there are likely to be significant numbers of people of Chinese origin who are or were readers of the Sunday Times and to whom the offensive term applied (or) was directed.”

21. I ought to immediately record that Rubin’s argument is not void of the same stereotypical generalisations he is criticising. I do not think it is an objective fact that counterfeit goods originate “primarily, if not exclusively” from China – much less that it is “primarily, if not exclusively” manufactured by “Chinese people”.

Sunday Times’ response

22. Güles concurs with the reasoning of the Public Advocate.

23. She says: “The headline was indeed a reference to ‘fake luxury goods’ using the term in common usage in South African colloquial English. It carries no xenophobic or racist meaning.”

Analysis

24. The Appeals Panel, in Goss Marlon vs News24 (8524/02/2021, 11 June 2021), gave a very detailed analysis of Clause 5.1. of the Press Code and how it should be applied. The majority held that the clause has three elements:

24.1 Firstly, the clause prohibits (barring some exceptions) discriminatory or denigratory references to people’s race, language, sexual orientation, or other characteristics described in the Press Code.

24.2 Secondly, it will always be unacceptable for such references to be in a prejudicial or pejorative context. The absence of a prejudicial or pejorative context can therefore also be described as the first requirement to receive protection under this clause.

24.3 Thirdly, there are two more requirements to be met to invoke the protection of the clause: The reference must have been strictly relevant and it must have been in the public interest.

25. It is of importance that the Press Code seeks to avoid discriminatory or denigratory references to people and their race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth or other status.

26. This Office and the Appeals Panel have given the reference to “people” in clause 5.1. a wide interpretation. It has not been limited to references to identifiable individuals who have been referred to in an unacceptable way, but also to groups of people. So, for instance:

26.1 In Elizabeth Pretorius vs Rapport (complaint 8829) the use of the Afrikaans word “tieties” was held to be denigratory of women in general.

26.2 The objectional descriptions in Goss Marlon vs News24 was held to be perjorative of “Jesus or Christianity”, i.e. Christians and/or other religious people.

27. There is also a distinction between descriptions that may be offensive to certain readers, but are not discriminatory or derogatory:

27.1 Several complainants were offended by the labels used in a column that appeared in The Huffington Post South Africa titled, “Could it be time to deny white men the franchise?” The Appeals Panel, in Pillay Verashni vs AfriForum and MMA and SANEF (matter 3239/04/2017) held that the singling out of white men was not discriminatory as it did not depict the alleged “victims” (white men) to be less than human. The depiction was also not denigratory as white men were actually portrayed in the column as “virtually superhuman, powerful and dominant”.

27.2 In Parliament vs Daily Maverick (19 June 2017), the then Press Ombud ruled that it may be offensive to refer to the parliamentary protection personnel as “bouncers”, but that it is not denigratory.

Was the reference denigratory or discriminatory?

28. The very first difficulty with the complaint is that the words “fong kongs” were not used as a reference to any person, but quite literally to counterfeit luxury goods, which is the primary and original meaning of the slang term.

29. The article appeared in the lifestyle section, was confined to an issue in the fashion industry, and the sub-headline already told readers what “fong kongs” referred to, being “fake luxury goods”.

30. The potentially problematic dimension of the term “fong kong”, as described in the writings of Zakes Mda quoted by the complainant, does not arise in these circumstances. The article did not refer to human beings such as street vendors or Michael Sun in the examples cited by the complainant.

31. For this reason alone, the term in question does not fall within the ambit of discriminatory or denigratory speech about “people’s race…(or)…ethnic or social original” regulated by clause 5.1. and the complaint cannot be upheld.

32. While I agree wholeheartedly with the complainant that the term “fong kong” could – in appropriate circumstances – be highly undesirable, an article about counterfeit goods in the fashion industry is not one of them.

33. I do not suggest that the term “fong kong” is always acceptable and that publications should not be mindful of, and sensitive to, the subtext that language may convey. It is certainly not a unique occurrence that a particular word or phrase can have an innocuous meaning in one context and a more sinister subtext in another.

34. However, I am not convinced that the phrase carries such a sinister subtext pertaining to Chinese people in the Sunday Times article. I say so for the following reasons:

34.1 The complainant’s argument that counterfeit goods are “primarily, if not exclusively” manufactured by Chinese people is not sound and is not supported by any facts before me.

34.2 Criticism of the quality or features of products/goods – even pejorative criticism of such goods/products – does not equate to pejorative criticism of the humans who manufacture the products/goods, let alone human beings who are loosely (and only through flawed stereotypical reasoning) associated with the manufacturers of the criticised goods.

34.3 A reasonable reader who is not prejudiced, biased, or morbidly suspicious would not read this term as an attack on people of Chinese origin. While it is true that some individuals in society are xenophobic and might interpret the article in question as “confirmation” for their own bias, such individuals are not reasonable readers. A reasonable reader espouses the constitutional values of South Africa.

35. I accept that Rubin feels offended by the use of the words. Subjective offence is, however, not the test to establish whether a publication contravened the Press Code. The test is how a reasonable reader would understand the words in question and whether the words in question amount to discriminatory or denigratory references to people’s race, gender, sex, or other status.

Was the context pejorative or prejudicial?

36. If I am wrong in finding that the words “fong kongs” used in this context was neither denigratory or discriminatory against any particular individual or group of people, I am of the view that the other considerations in clause 5.1. also favour the publication.

37. There is no absolute ban on references to people’s race or origin (if that is what “fong kongs” amounted to, which I do not agree with).  The question then arises whether the context of the references was pejorative or prejudicial, whether the reference was necessary, and whether it was in the public interest.

38. In my view, the context of the article was neither pejorative of ‘nor prejudicial to people of Chinese descent.

39. Firstly, my finding remains that no reasonable reader would read the term to refer to people, but rather to counterfeit goods. “Fong kongs” would be pejorative of counterfeit goods.

40.1 Secondly, the proper context of the article is not pejorative or prejudicial to any people of Chinese origin:

40.2 The article does not propagate that there is no place for cheaper goods than the original label fashion goods. In fact, it specifically refers to the need of many South Africans to “penny pinch” when buying clothing. However, the article deals with the issue of how counterfeit goods are undermining the high-end fashion industry.

40.3 The article acknowledges that many people knowingly buy fake branded goods and thereby does not seek to apportion blame solely on manufacturers of counterfeit goods. The article’s aim is to educate those people with an “untrained eye” who may be duped by sophisticated counterfeit goods.

41. Within this context, the use of a well-known term for counterfeit goods is not gratuitous and the subject matter – being essentially consumer advice – is in the public interest.

Conclusion

42. For the reasons given above, the complaint is dismissed.

Herman Scholtz

Press Ombud

7 May 2023

Appeal

The Complaints Procedure lays 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].