News24 & Karyn Maughan vs Sunday Independent

SUMMARY

The headline to the column in dispute read, Is Karyn Maughan South Africa’s Leni Riefenstahl – the Nazi Film Propagandist? (published on 3 March 2024).

This ruling by the Adjudication Panel was based on the Press Code that became in effect on 30 September 2022.

 

The column said that reporter Karyn Maughan shared similarities with the Nazi filmmaker Leni Riefenstahl in that she operated as a propagandist in her coverage of the legal disputes involving Sekunjalo, the newspaper’s parent company.

The Panel first dealt with News24’s and Maughan’s complaint that the column had tarnished her dignity and reputation, and that it did not take fair account of all material facts that were either true or reasonably true.

The complainants contested the claims in the article that Maughan had discredited Sekunjalo’s application to the Constitutional Court with the intention of influencing the judiciary; that she was a fraud and a propagandist rather than a journalist; and that she was a racist, comparable to a Nazi and to an apartheid agent.

The Panel observed that columnists should be given latitude to develop their arguments and that they were allowed to use hyperboles and other devices to make their case. “However, the limit is reached when criticism turns into mere abuse” – as had happened in this case. The Panel said it had no doubt that the column did not take fair account of all material facts and that it had tarnished Maughan’s dignity and reputation.

The Panel then turned to the complaint that the columnist had been conflicted, which led readers to doubt the media’s independence and professionalism. They found that Sunday Independent had indeed allowed corporate interests to influence its editorial decision to publish the column.

The Panel upheld the complaint that the Sunday Independent and all online and other entities that had published the column had:

• not taken fair account of all material facts that were either true or reasonably true;
• not exercised care and consideration in matters involving dignity and reputation; and
• been conflicted.

The relevant publications were directed to retract the column and to apologise to Maughan for these breaches of the Press Code.

 

THE RULING ITSELF

Complaint 30739

Date of publication:

3 March 2024

Headline of publication:

Is Karyn Maughan South Africa’s Leni Riefenstahl – the Nazi Film Propagandist?

Author: Edmond Phiri

Particulars

1. The complaint was lodged by News24 and Karyn Maughan, initially on 18 March 2024.
2. Media Monitoring Africa also complained against the column but were advised by the Public Advocate rather to apply to be admitted as an amicus curiae. They did so on 25 March 2024.
3. After extensive backwards and forwards (which will be further dealt with below), the respondents filed a response through Sunday Independent editor Sizwe Dlamini on 18 June 2024, together with a document entitled Media Monitoring Report commissioned by the Sunday Independent.
4. The complainant supplied a rejoinder on 11 July 2024.
5. A hearing took place on 23 July 2024 before a panel composed of Deputy Press Ombud Franz Krüger, Prof Karthy Govender and Joe Thloloe. The editor of the Sunday Independent, Sizwe Dlamini, represented the respondents, and was later joined by Edmond Phiri, the author of the article.  The complainants were represented by News24’s assistant editor, Pieter du Toit, and Karyn Maughan.
6. In considering the matter, the panel had regard of the various documents filed as well as the submissions made during the hearing.

The article and related material

7. The column said that Maughan shares similarities with the Nazi filmmaker Leni Riefenstahl in that she operates as a propagandist in her coverage of the legal disputes involving Sekunjalo, the newspaper’s parent company. Specific reference is made to a recent report by Maughan, headlined “Survé targets senior judge after racism claims against Nedbank”, calling it mischievous and saying it presented the company’s legitimate grievance as an attempt to undermine the judiciary.
8. The article was propaganda aimed at influencing the judiciary. The column placed the article in the context of what it said is a campaign in mainstream media to tarnish the reputation of Sekunjalo and of company chair Dr Iqbal Survé, which articles were used by the banks in claiming that the company caused them reputational risk.
9. This campaign was reminiscent of the operations of the apartheid government’s Stratcom, the column said. In this way, Maughan’s propaganda mirrors the methods used by Riefenstahl. The column challenged her authority as a legal reporter on the basis that she has no formal legal qualifications, calling her “the legal version of ‘Dr Mattthew Lani’” who was unmasked as a fake.
10. In conclusion, the column again compared Maughan and Riefenstahl, saying they are in the same WhatsApp group though belonging to different historical periods, and that Maughan uses journalism “as a cover for her vile anti-black sophisticated propaganda”.
11. The complaint also included a copy of the Maughan article referred to in the column and screenshots of several tweets used to promote the article. These used an image including a photograph of Maughan, the old South African flag, a gun and the line “The apartheid machine disguises as journalism”. The text included “STOP the propaganda machine: Karyn Maughan’s reporting on Survé and Sekunjalo mirrors historical apartheid tactics”; “Unravelling the parallels between Karyn Maughan and Leni Riefenstahl – how propaganda disguises as journalism”, “Journalism’s duty is to uncover the truth, not to spread propaganda. Is Karyn Maughan using her platform to influence the judiciary?” and “Karyn Maughan’s recent article on Sekunjalo reads like a page from Nazi propaganda playbook”.
12. Hashtags used included #South Africa, #News24, #Karyn Maughan, #Propaganda, #Journalism, #RacistBanksmustfall, #RightToBank and #TrendingNow. The tweets included a link to the article and were also tweeted at Maughan’s X account.
13. The complaint further included other articles and related tweets from IOL on what it views as a campaign by competitor media against Sekunjalo, including several under the byline Edmond Phiri, as well as material in support of the complainant’s claim that Phiri is a pseudonym for one or more employees of Sekunjalo. We will not attempt to summarise all the voluminous material here.

Procedural issue 1: Acceptance of the complaint

14. The complaint was originally lodged with the Press Council on 18 March 2024. It was directed at IOL and forwarded to them by the Public Advocate (PA). IOL said it was the wrong addressee as the article was first published by the Sunday Independent, and the PA accordingly sent the complaint on to the newspaper. As the complaint itself referred to IOL, he asked the newspaper to replace “IOL” with “Sunday Independent” and asked News24 to amend the complaint.
15. On 4 April, the editor of the Sunday Independent, Sizwe Dlamini, indicated he could not entertain the complaint on the basis that it was addressed to IOL, the incorrect entity.
16. An updated complaint was sent through to the newspaper on 15 April. The newspaper, through the company’s internal legal counsel, wrote back to say this had to be treated as a new complaint and was therefore out of time.  The PCSA’s procedures require complaints to be laid within 20 days of publication.
17. An intensive exchange between the PA and Independent’s legal representative failed to resolve the issue, with the respondents asking that the issue of late acceptance be resolved before any further action was taken. The complainants took the view that the objection lacked merit.
18. The matter was then handed to Deputy Ombud Franz Krüger to resolve.
19. On 13 May, the Deputy Ombud wrote to the parties to indicate that he would convene a hearing. On the procedural question raised by Independent, he indicated that it would be dealt with at the same time as the substantive issues. He pointed to the fact that standard procedure is for an appeal against a decision by the PA (for late condonation) should be dealt with at the same time as the merits of the case. The details are in the ruling by Justice Ngoepe, chair of the appeals panel, in an application to appeal in the matter News 24 vs Jurie Roux (complaint 9507).
20. After further delays due to requests for additional time by both parties, the hearing took place virtually on 23 July 2024, beginning with consideration of this question.
21. Asked whether Independent still wished to pursue the objection, Dlamini said that complaints should be directed to the right party and asked for an explanation of the decision to proceed. Du Toit indicated the complainants agreed with the decision of the PA.
22. Though Dlamini did not repeat the argument, it is worth summarising the essence of Independent’s objection here: the original complaint was addressed to the wrong party, and the revised complaint came later than the 20-day cut-off and so should not be considered either.
23. After the panel considered the arguments, we returned to the hearing and informed the parties that we accepted the process followed by the PA. Our reasoning is based on several points:
    • The 20-day deadline referred to in paragraph 1.3 of the Complaints Procedure refers to acceptance of the complaint. It is clear that the PA accepted the complaint on 18 March, 11 days after publication.
    • The Sunday Independent was perfectly aware of the existence of the complaint, well within the deadline. They were explicitly informed by the PA that the complaint was for them and initially acknowledged receipt before apparently having second thoughts.  The fact that it was initially addressed to IOL is a deficiency only in the narrowest of formal terms.
    • In any event, the PA has the additional possibility provided by paragraph 1.3, which says he “may on reasonable grounds accept late complaints if, in his or her opinion, there is a good and satisfactory explanation for the delay”.
    • Furthermore, it was not unreasonable to direct the complaint at IOL as the article in question was published and extensively promoted by IOL. It is the act of publication that attracts a complaint, and so every instance of publication can be subject of a complaint. Though the Sunday Independent was the primary publisher, IOL also published it and could therefore be addressee of the complaint.
    • In any event, it is not tenable to present the two as entirely separate. They are part of the same family of companies with substantial editorial linkages.
    • The increasingly common practice of publications republishing material online has resulted in common-sense adjustments to PCSA processes. Complaints are usually dealt with by the member who initiated the article, with the entity that published online accepting the ruling and publishing corrective measures if ordered.
    • This also applies where entities are not part of the same organisation. In Paramount Group and Ivor Ichikowitz vs The Continent and Mail & Guardian (Complaint 4678), the article was first published in The Continent and then republished by the Mail & Guardian, under a slightly different headline.  The Continent appeared for both parties and both publications published a correction and apology.
    • The respondents also objected to the PA’s assistance to the complainants, saying (in a letter of 17 April) that the council was “setting a dangerous precedent by playing the role of the complainant”. In fact, the PA is obliged to assist the complainant. The Complaints Procedure says (in paragraph 1.3) that the PA “throughout the entire process (also at the Ombud and the Appeals Panel) will advise and assist the complainant if the complainant agrees”.
    • These provisions are designed to assist members of the public who are not familiar with the workings of the media. In this case, the complainants are themselves a media organisation and an experienced reporter and have considerable knowledge of the workings of the PCSA. However, this does not fundamentally alter the PA’s role.
    • The nature of the PCSA process is informal, as pointed out in the preamble to the Complaints Procedures: “It shall be of the essence of mediation and adjudication proceedings that … complaints be mediated and adjudicated in an informal manner”.
    • We regard the objections raised as excessively technical ones that are at odds with the letter and spirit of the PCSA process.
    • Accordingly, the panel accepts the PA’s measures as reasonable and proceeds to consider the complaint.

Procedural issue 2: amicus curiae

32. Media Monitoring Africa (MMA) initially lodged a complaint against the article with the PCSA on 18 March, the same day that News24 and Maughan lodged theirs. The PA responded that the PCSA could not accept complaints “from unauthorised third parties on behalf of another person, especially, as in this case, it is about a person’s integrity, reputation or privacy”.
33. The PA suggested that MMA instead apply to be recognised as an amicus curiae. The suggestion was also put to the complainants who accepted it.
34. MMA is a non-profit organisation aiming to be “Africa’s pre-eminent media ‘watchdog’”, it says.
35. In a submission filed through its lawyers, Bowmans, MMA disagreed with the statement that it is an “unauthorised third party”, pointing to provisions that allow a complaint to be laid as a member or in the interests of a group.
36. The organisation said it was acting in the interests of fundamental constitutional rights to free expression, and free and fair journalism. The organisation argued that “it is fundamental to these objectives that spreading of misinformation and disinformation, which fundamentally undermines media credibility, rights and the principles of journalism, is sanctioned.”
37. However, MMA accepted the suggestion and formally applied to be admitted as amicus curiae, pointing to a number of cases before the courts and regulatory authorities it had been involved in.
38. In the hearing, the respondents initially expressed unhappiness with MMA’s involvement, saying the matter was between two parties and adding another party did not “sit very well”. After the panel had discussed the application and returned with a decision, Dlamini expressed stronger views, objecting to MMA’s admission on the basis that they sought to widen the ambit of the complaint and were not relevant.
39. Having discussed the question, the panel resolved to admit MMA as amicus curiae. In reaching the decision, the panel considered the following points:
    • It is unusual, though not unprecedented, for a PCSA hearing to include an amicus curiae. The practice belongs more in a court of law and the panel was conscious of the dangers of PCSA procedures becoming overly formal and legalistic.
    • The concern about the principle of involvement by third parties centres on the view that people directly affected by publication should have the primary right to decide whether they want to take up a matter with the PCSA.
    • The panel also considered the desirability of extending the ambit of the complaint beyond the points raised in the complaint by News24 and Maughan.
    • However, we felt that MMA did have a valuable perspective to add, given their wider interest and their experience. We also accepted that the complaints procedure, in recognising that a complaint may sometimes be laid by parties who act “in the interests of a group or class of persons”, opens the door to involvement by others beside the immediate parties.
    • We also noted that the complainants did not object to MMA’s involvement.
    • Accordingly, we decided to accept the application.
    • However, we also felt it would be unfair to the respondent to extend the ambit of the complaint to additional allegations of breach. We made it clear that the basis for the complaint was captured in the submissions from News24 and Maughan. MMA’s input needed to be limited to addressing points made in the main complaint.
40. We deal with the complaint in two parts. First, we deal with possible breach of clauses 3.3.2 and 7.2, and then with possible breach of 2.1.

Complaint 1: Breach of Clause 3.3 and 7.2

Arguments

33. The complaint highlights six claims in the article as being in breach of the code. These are:
    • That Maughan discredited Sekunjalo’s application to the Constitutional Court with the intention of influencing the judiciary,
    • That she is a propagandist rather than a journalist
    • That she is a fraud
    • That she is comparable to a Nazi
    • That she is comparable to an apartheid agent
    • That she is a racist.
34. The complainants argue that the first claim is an allegation of fact and forms the basis for the whole article. In some detail, they analyse Maughan’s original article, arguing it was a fair account of Sekunjalo’s court case. They argue that there is no basis to infer an intent to influence judges. The assertion is presented as fact, is not identified as comment and infringes Maughan’s dignity and reputation. Furthermore, it is not based on facts that are reasonably true.
35. The complaint then goes through the other five claims, arguing in each case that there is no factual basis for making them and that they are therefore not protected comment. The accusation of fraud is based on the comparison of Maughan with Matthew Lani, who fraudulently claimed to be a medical doctor despite not having medical training. The claim is that Maughan is similar in that she works as a legal journalist despite not having legal training. The complainants say that Maughan has never claimed to have legal training and that such training is not required to work as a legal journalist.
36. With regard to comparisons to Nazi and apartheid propagandists, the complainants argue there is no comparison to these two vicious regimes and that Maughan has reported on failures to prosecute apartheid crimes.
37. On the accusation of racism, the complainants say Maughan has often reported on misdeeds by white individuals and companies, and calls the accusation an egregious affront to her dignity and reputation.
38. Maughan testified during the hearing. She reiterated the position articulated in the News24 submission that her article was a simple news report and provides no factual basis for the accusations made against her.
39. Instead of using available mechanisms to air a complaint, Independent had chosen to use its titles to launch an attack on her personal dignity and professional reputation. Calling it a horrific attack on her personhood and dignity, she highlighted how hurtful the claimed link to Nazism and apartheid was, pointing to aspects of her career contradicting the allegation.
40. Maughan also noted the way the article was promoted on social media by many of Independent’s titles and Survé himself, which unleashed a torrent of further abuse against her. Much of the abuse was of a sexual nature, directed at her as a woman. She said the company’s purpose was to intimidate and harass her into silence.
41. The PCSA had an obligation not just to hold the media to account but also to protect journalists, particularly female journalists, against abuse, she said.
42. The respondent denies that the article is based on a claim that she misreported the Sekunjalo case. Rather, they say the writer was expressing an opinion that her reporting was aimed at painting a negative picture of Sekunjalo. The article presented a general critique of her reporting, using the specific article referred to as a starting point.
43. Overall, the article should be accepted as an expression of an opinion which the writer is entitled to, notwithstanding the use of strong language and rhetoric. It is therefore protected, the respondents say. Construing rhetorical expression as literal claims would chill free expression, the newspaper says.
44. The newspaper also submits a 12-page document entitled Media Monitoring Report commissioned by the Sunday Independent. The document, by African Innovation Solutions, analyses Maughan’s reporting over five years and comes to the conclusion that she mainly writes negative articles about black individuals. The report is dated 18 June 2024.
45. At the hearing, Dlamini said it was the policy of the newspaper to provide space for readers to express their opinions and reiterated the argument that opinions are protected by the code.
46. Dlamini also called Phiri, who said he would only respond to the claims against the article itself and leave Independent to respond to complaints about a breach of clause 2.1. We will return to the question of his identity below.
47. Phiri reiterated the argument at length that he had expressed an opinion to which he was entitled and which was protected by the Press Code. The comparison to Riefenstahl and other references were due to his view that she is a propagandist targeting black entities. Cross-examined by Du Toit, he said the basis for the view lay in his analysis of her reporting on Sekunjalo over time.
48. He denied the article accused her of misreporting in the specific article on the company’s complaint against an Appeal Court Judge but responded to its tone. He said he had taken the coverage of Sekunjalo as an example of mainstream media coverage of black companies.
49. In their rejoinder, the complainants argue that opinion is only protected (under clause 7.2) if it is without malice, is in the public interest, has taken fair account of all material facts and is clearly presented as comment. In addition, clause 3.3 of the Press Code requires matters that infringe a person’s dignity or reputation to be based on facts that are adequately referred to and that are true or reasonably true.
50. They say they accept the article deals with a matter of public interest and that all except the first claim is presented as comment.
51. MMA’s submission argues that the article is not clearly identified as comment but would be read as a factual report. MMA also says that the article lacks the necessary factual basis. These issues are amplified as the article is focused on a female journalist, given the particular risks women journalists face. MMA also says that the manner in which Independent titles promoted the article contravenes the PCSA’s guidance note on social media policies.
52. The article also breached clause 3.3 by intruding into Maughan’s personal life, undermining her dignity and tarnishing her reputation without demonstrating public interest or producing sufficient evidence. MMA also seeks to demonstrate breaches of other clauses of the Press Code, but these will not be explored here, in line with the decision to leave the complainants to define the ambit of the complaint.
53. At the hearing, Bird said the article was an example of disinformation and therefore breached the fundamental aims of the Press Code. He reiterated the argument that the article failed to present any factual basis for the claims made, and said it failed to minimise harm not just with regard to Maughan, but also by failing to take into account the threats women journalists face and by undermining trust in the media.

Discussion

Preliminary remarks

54. Section 7.2 of the Press Code says:

Comment or criticism is protected even if it is extreme, unjust, unbalanced, exaggerated and prejudiced, as long as it is without malice, is on a matter of public interest, has taken fair account of all material facts that are either true or reasonably true, and is presented in a manner that it appears clearly to be comment.

55. The section has been called a potential “safe harbour” of protection for an article or statement. (See Referendum Party vs Daily Maverick (complaint 4697); Embassy and Ambassador of Russia to South Africa vs Daily Maverick (complaint 4677); Appeal: Goss Marlon vs News24 (complaint 4555)). In other words, if an article satisfies the conditions outlined, it counts as protected comment.
56. As pointed out by the Press Ombud in Embassy and Ambassador of Russia to South Africa vs Daily Maverick (complaint 4677), failing to achieve the protection of clause 7.2 is not a breach of the Press Code, but opens the door to consideration of breach in terms of another clause.
57. In the present case, the first question the panel needed to address was whether the column meets the requirements of clause 7.2. If it does not, the second question would be whether 3.3 has been breached.
58. By way of a further preliminary remark, the panel was acutely aware of the importance of the right to free expression. The Preamble to the Press Code takes these rights as the starting point for the code’s provisions, describing the connection between the media’s role in service of democracy, the need to assure credibility with the public and, ultimately, citizens’ right to be informed.
59. Free expression includes the right to strong comment, even if it is expressed in extreme language.  Though some limitations are imposed in the constitution, the Press Code and elsewhere, these should be invoked with caution and only in the clearest of cases.
60. In considering the present matter, the panel notes that any limitations imposed on comment in the code should be read as narrowly as possible.

Section 7.2

61. We accept that the column in question was presented as comment. Though MMA argued it was presented as a factual report, we accept that the article’s labelling as “Opinion”, the use of the disclaimer at the bottom and the writing style are sufficient signals to the reader. We note that the complainants also accepted that it is comment (though they say some statements are presented as being factual).
62. We also accept that the matters referred to are of public interest, as also accepted by the complainants.
63. The more difficult question is whether the column satisfies the condition that it must “have taken fair account of all material facts that are true or reasonably true”.
64. For clarity, this is a somewhat different question to the one that has come up before the PCSA several times, whether a statement of fact within a piece of commentary should be judged as comment or fact. (See Patriotic Alliance vs News24 (complaint 4668), both at initial and appeal levels.)
65. Though claims and counterclaims are made in the present complaint about specific sentences and whether they amount to expressions of opinion or claims of fact, we find that the more important question is the wider one of whether the article as a whole meets the threshold of 7.2.
66. Accordingly, we will not discuss the elements of the article complained about individually, but the column as a whole. Where specific points need to be made about one or other statement, we will do so.
67. Of relevance are the comments made by Justice Cameron in the important defamation case of The Citizen 1978 (Pty) Ltd vs RJ McBride and others, who outlines the conditions for a defence to succeed: that the statement must be comment or opinion, fair (in a specific sense), based on true facts and in the public interest.  The conditions are substantially similar to those set out in clause 7.2 in the Press Code.
68. Justice Cameron quotes Chief Justice Innes as saying a defendant (in a defamation case) must justify the facts, not the opinion. Furthermore,

The requirement that the facts must be truly stated does not mean, as Innes CJ pointed out a century ago, that “in all cases the facts must be set out verbatim and in full”. This is because “there may be cases where the facts are so notorious that they may be incorporated by reference.”

69. Establishing a factual basis for a comment is important to allow readers to make up their own mind. Quoting Chief Justice Innes again, Justice Cameron says

The defence (of fair comment) protects criticism, comment or expressions of opinion ― “on facts which are true, and relate to matters of public interest, and if they are such as any fair man might make on those facts”.

(Emphasis added.)

70. In the present case, the complaint says the entire article rests on the single claim that Maughan misreported Sekunjalo’s court case. The respondents say the article does not make such a claim but takes issue with the focus and framing of Maughan’s report. In response, the complainant says these statements are themselves claims of fact that are unsubstantiated.
71. A careful reading of Maughan’s original report finds no basis for a claim that she misreported the case, with balanced attention and space paid to Sekunjalo’s arguments and those of other parties.
72. It did emphasise and focus on Sekunjalo’s challenge to a particular judge, as the respondents say, and it is certainly legitimate to criticise the choice of approach taken in a piece of journalism. Taken in isolation, there would be nothing objectionable about the claim.
73. But the column’s claims go considerably further. The statement about the focus of her article comes after it has already called her a propagandist and referred to her aim as being “to spread a mischievous narrative” about Sekunjalo. And it leads into the claim that her motivation was to influence the judiciary against the company. This in turn buttresses the comparisons to Nazi and apartheid propagandists and the accusation of racism.
74. Even if criticism of the editorial approach is legitimate, it provides the thinnest of foundations for the breadth and severity of the attack on Maughan.
75. The points about her motivation and aims are simply speculative.
76. Both the newspaper and Phiri in their submissions advance a further defence, saying the criticism was based on a wider analysis of Maughan’s work. Indeed, the column uses the phrase “When you look at a series of articles, …” Pressed under cross-examination, Phiri said he had looked at between 20 and 25 articles by Maughan.
77. However, nothing of substance was produced. At best, it seems the writer over time developed a negative impression of her writing. Certainly, the column does little to present any substantial analysis to back the criticism. A brief reference to looking at a series of articles is not enough.
78. The other piece of evidence submitted was a monitoring report commissioned by the Sunday Independent, which purported to identify bias in Maughan’s reporting over five years. However, the panel found the report does not assist the newspaper.
    • The report’s methodology is open to serious question. It is unclear on what basis reporting was deemed positive, negative or neutral, and so is the basis on which certain individuals are deemed to be supportive of a white or anti-black agenda.
    • The report was written long after the column, in fact after the complaint was laid, and therefore could not have formed any basis for the conclusions in the column.
    • The complainants have argued it is incomplete, having missed important parts of Maughan’s writing. The point stands uncontradicted.
    • The entity who conducted the study is situated within the Sekunjalo group and is therefore not independent, according to the complainants. The point stands uncontradicted.
79. We also note that the column is couched in very strong language. Aside from comparisons to Nazi and apartheid propagandists and racism, the article is replete with phrases such as “sewer-laden road of bias”, “click-bait headlines”, “paid propaganda shill” and “vile anti-black sophisticated propaganda”. Comment can be couched in strong terms, but it does increase the burden of the writer to show the basis on which the statements are made.
80. Statements about Maughan’s qualifications need extra consideration. The complaint is that describing Maughan as “the legal version of ‘Dr Mathew Lani’,” whose claim to being a doctor was exposed as fraudulent, effectively accuses her of fraud. Though the statement that she lacks a legal qualification is true, she has never claimed the contrary and does not need a law degree to cover legal issues, the complainants say. The respondents say this misreads the statement, which rather makes the point that her coverage is “so flawed that it sometimes resembles Lani’s medical quackery”.
81. We find the respondent’s argument unpersuasive. The sentence reads: “Her authority as a ‘Legal reporter,’ despite lacking formal legal training, raises questions about the legitimacy of her expertise …” and then makes the comparison to Lani.  The statement can only be read as an accusation that Maughan is claiming to be something she is not.
82. As pointed out above, we have not been concerned with determining whether individual statements in the article amount to statements of fact or of opinion. Rather, we have asked the question whether the article as a whole can be said to have taken account of the facts.
83. We repeat that comment writers should be given latitude to develop their arguments and are allowed to use hyperbole and other devices to make their case.
84. However, the limit is reached when criticism turns into mere abuse. Noting the severity of the attack on Maughan and the lack of substantiation, we find that the column fails to achieve the protection of clause 7.2.
85. The article was repeatedly said to be malicious, an additional factor listed in clause 7.2. However, having determined that the column fails to achieve the protection of the clause as it did not take adequate account of the facts, we do not find it necessary to pursue the question of whether it was presented with malice.

Section 3.3

86. We now turn to the question of a possible breach of clause 3.3, which enjoins the media to

exercise care and consideration in matters involving dignity and reputation, which may be overridden only if it is in the public interest.

87. The clause provides a few grounds on which it might be overridden, including 3.3.2, which sets up a similar requirement as in 7.2, namely that

the reportage amounts to protected comment based on facts that are adequately referred to and that are either true or reasonably true.  

88. We have already found that the column does not meet the requirements of protected comment.
89. We then need to consider whether the column “exercises care and consideration in matters involving dignity and reputation”.
90. There is no question that the column involved Maughan’s dignity and reputation. The newspaper argues the article focuses on her professional work rather than her personal character, but the argument does not stand even the briefest scrutiny.
91. The column explicitly aims to present Maughan as a racist propagandist, which amounts to a clear attack on her integrity as a journalist. Journalists build up credibility and respect to the extent that they are trusted, and their personal and professional reputation cannot be neatly separated.
92. Maughan’s testimony highlighted the personal hurt of being compared to Nazi and apartheid propagandists and being called a racist. She regards the article as an attempt to intimidate her into silence.  Maughan also pointed to the fact that she was subject to a large amount sexually violent online abuse as a result of the column.  MMA’s submission made a similar point.
93. The newspaper has argued that the column exhibited the care and consideration required in clause 3.3.
94. However, the panel finds that the extreme nature of the language used as well as the personal nature of the attack contradicts the defence.
95. Of relevance also is the way in which the article was promoted online. We will return in more detail to the social media activity below.
96. However, of relevance to the discussion of care and consideration is the toxic environment women journalists encounter online. Editors are obliged to consider the likely consequences of the words and approaches they use in a context where threats of sexual violence are only too common. Though an editor may argue they do not have control over the responses of online users, some thought must be given to possible reactions.
97. Given the well-known history of gender-related abuse directed at Maughan and other female journalists online, some consideration should have been given to the tone of material used to promote the article. Instead, the use of the most inflammatory elements of the article, as listed in paragraph 11 above, serves to invite further abuse.
98. We are particularly concerned about the X post of 21 March under Survé’s personal account, mentioned by Maughan in her evidence, in which he refers to defence of her offered by media groups he says are funded by the CIA, using the phrase “beat the dog and the owner comes out”. Calling Maughan a dog and using violent imagery in this way is unacceptable.
99. As a public figure, a prominent legal journalist must be ready for robust criticism. However, the column merely presents a torrent of unsubstantiated abuse. We hold that the latitude allowable to opinion writers reaches its permissible limit at the point where criticism becomes abuse.
100. In sum, we find that the column breached clause 3.2 in failing to display sufficient care and consideration in dealing with dignity and reputation.

Complaint 2: breach of clause 2.1

Arguments

101. The complainants argue that the tone of the article make it clear that it was written “on behalf of, at the behest of or at least in the interests of” Independent as a company and Survé. They say they believe Phiri is merely a pseudonym for one or more employees of Independent, referring to a series of articles under the Phiri byline which were fierce defences of the group and polemics against its perceived enemies.
102. The submission quotes a statement by Survé whose language and use of the pronoun “we” indicates ownership of the work presented as Phiri’s. The complainants say that social media accounts linked to the company and its entities are used as megaphones for its interests and argues the behaviour allows the group’s commercial interests to override editorial considerations.
103. It is therefore a breach of the requirement in section 2.1 to avoid conflicts of interest that might undermine public confidence in the media. The column complained about is an example of the issue.
104. The respondents refute the claim, saying it is based on conjecture rather than evidence. Comment pieces may align with the editorial stance of the publication without having been commissioned by the owners.
105. The respondents argue that there is no evidence that Phiri is a pseudonym for corporate staff, saying the fact he writes about Sekunjalo does not prove anything. They quote his explanation, published in an article of 15 March, that he chooses to focus on the company as an example of “the broader problem of media bias against black people”.
106. The complainant’s reference to the Survé statement’s use of “we” is dismissed as proving nothing, as it refers to the company. The respondents accuse the complainants of being motivated by their own interests against a competitor in the market and dismiss all reference to social media activity.
107. The complaint contains no evidence of hidden conflicts of interest, and the PCSA has the obligation to defend publications against baseless allegations of impropriety, the respondents say.
108. During the hearing, Dlamini stressed that Survé and Sekunjalo were simply shareholders. He found the accusation that he was controlled by corporate interests insulting.
109. In his evidence, Phiri said he was not an employee of the company but simply an occasional contributor. He was questioned by Du Toit about his identity, and objected strongly to the tenor and thrust of the questions, calling it racist.
110. In their rejoinder, the complainants argue the point that the views expressed agree with Independent’s corporate interests cannot be dismissed as coincidental. They say that the defence offered underlines the problem by talking of media executives’ use of “we” to express an editorial opinion. Editorial positions should be of no concern to the company’s executives, they argue. They also reiterate questions about Phiri’s identity.
111. MMA’s submission is that if the claim is true that Phiri is a fabricated identity, it not only breaches additional clauses but the basis for the entire Press Code as it represents a deceptive practice that undermines public trust. MMA also points to the fact that most of the titles of the Independent Group posted similarly in promotion of the article must undermine public belief in the independence of the group and the media more widely.

Discussion

112. The complaint takes us into relatively uncharted territory: we have been unable to identify any other matters brought to the PCSA in terms of section 2.1 of the Press Code. The provision enjoins the media to

not allow commercial, political, personal or other non-professional considerations to influence reporting, and avoid conflicts of interest as well as practices that could lead readers to doubt the media’s independence and professionalism.

113. The reference to reporting here must be seen to include commentary writing, in line with elsewhere in the Code (Clause 3.3.2, for instance, talks of “reportage (that) amounts to protected comment”.)
114. The provision’s reference to “practices” makes its ambit potentially very wide, going well beyond the publication of a specific article. Again, application of the provision should err on the side of narrowness.
115. A further difficulty arises in that the complaint relies strongly on two points that take us beyond the immediate column at issue.
116. First, it references a great deal of additional material, both published articles and social media activity. Asked during the hearing, Du Toit said the complaint was focused on the column, and the other material was by way of context to support the argument in reference to clause 2.1.  In other words, we are not being asked to pass judgment on a general pattern of activity.
117. Secondly, the complaint rests on questions about Phiri’s identity, which we discuss below.

Phiri’s identity

118. The doubts about Phiri’s identity and evidence presented have been summarised above.
119. At the start of the hearing, it seemed that Phiri would not be in attendance, and we were told by Dlamini that he preferred to remain anonymous for fear of his safety. It should be noted that though he was quoted as having referred to a pseudonym by Du Toit later in the proceedings, the record shows he talked of Phiri wanting to remain anonymous.
120. However, it became clear that Phiri’s identity was an important issue and after initially suggesting a delay of two days to allow Phiri to prepare, Dlamini was then able to facilitate his attendance after lunch. We are grateful that Phiri made himself available to the hearing.
121. Phiri himself declared unambiguously that he was the writer of the piece and that he was writing under his own name. Asked to turn on his camera so the meeting could see him, he said he could not do so for technical reasons. He said the desktop computer he was using did not have a camera. Asked whether he could at least briefly use his mobile phone to show himself, he said he did not have data.  He did not indicate that he feared for his safety.
122. During cross-examination, he was asked to give some details of the basis on which he is described on the column as an “independent commentator and analyst”, but declined to do so as he felt it was irrelevant.
123. We are disturbed at the contradictory statements made by the respondents and Phiri, but we do not have conclusive evidence that the byline is a pseudonym, as the complainants say. We proceed on the basis that the person we heard was the author, an occasional contributor to Independent titles.
124. In any event, the point needs to be made again, that answerability for publication rests with the proprietor, who is represented by the editor. At several points in the proceedings, Dlamini sought to persuade the panel that responsibility lay with the writer as the newspaper was merely providing a platform for the views expressed. This is incorrect: the editor remains answerable for the decision to accept a particular contribution.

The column and its promotion on social media

125. It is clear that Sekunjalo feels under unfair attack by other parts of the media, including News24. The point comes through in the submissions to the panel and elsewhere. Criticism is seen as aimed to undermine the company’s credibility, which in turn impacts on its ability to maintain banking services, among other things. The court cases referred to deal exactly with this matter.
126. It is undeniable that Phiri’s column articulates views that are supportive of Sekunjalo, often using similar arguments and terms. The central charge in the column, that Maughan is a propagandist, mirrors the point made in the company press statement extensively quoted in the submissions (“Sekunjalo rejects the disinformation campaign and fake news by New24 and its journalists”).
127. However, identifying a similarity of argument does not settle the matter. Nor does the use of the pronoun “we” in the statement assist.
128. It is not unprecedented for media organisations to have to report themselves. At the time of writing this ruling, the BBC is reporting criticism of the way in which it handled a prominent presenter facing criminal charges.  Reporting oneself requires deft handling if the media house is not to be accused of using editorial space to further its corporate interests. And it would be surprising if there were no sympathetic views anywhere in ongoing coverage.
129. An accusation of conflict of interest can only be sustained by reference to a wider pattern. The complainants have presented extensive evidence of published articles and social media activity that promotes the corporate view. The respondents have dismissed all this evidence as conjecture and speculation.
130. However, there is enough evidence to sustain an accusation that the newspapers in the group use editorial means in support of corporate interests:
     • Significant space has been offered to Phiri, who concentrates his writing overwhelmingly on defending Sekunjalo and attacking its critics. His columns have been strongly promoted online by the group’s editorial accounts.
     • Corporate views are presented as news, as in the report headlined Dr Iqbal Survé sets the record straight after inaccurate, defamatory Daily Maverick article (March 8 2024) and referenced in the submissions.
     • The corporate voice comes through very clearly in social media posts, including formulations like In the face of adversity, Sekunjalo stands firm!, Sekunjalo challenges News24s narrative, exposing disinformation and defending the integrity of Independent Media, and The Group (Sekunjalo) continues to fight for justice! These are tweets posted under the IOL News account, which presents itself as an editorial account.
131. We accept that Phiri has every right to focus on an issue like the defence of a company he considers to be unfairly targeted, and that there is no firm evidence he wrote at the behest of Sekunjalo.
132. However, the pattern highlighted reflects editorial decisions in support of the company’s interests and provides a context for the publication of the column.
133. We also note that promotion of the piece on social media was energetic and presented the accusations against Maughan in the sharpest terms. Promotion is not meant in a pejorative sense, as the respondent assumes, it refers simply to the practice of drawing attention to and boosting readership of a particular article and is practiced by most media houses. However, the manner of promotion is an editorial decision and therefore significant.
134. The MMA submission draws attention to what it calls a breach of the PCSA guidance note on the use of social media. But the note does no more than provide guidance, adherence is not mandatory.
135. We note that the piece was promoted by the Sunday Independent and IOL, but also by accounts for the Pretoria News, The Star, Mercury, Daily News, Cape Times and Cape Argus.
136. The corporate voice comes through particularly clearly in the tweet reading “STOP the propaganda machine: Karyn Maughan’s reporting on Survé and Sekunjalo mirrors historical apartheid tactics”.
137. The use of hashtags such as #RacistBanksmustfall and #RightToBank presses an opinion article into the service of the company’s campaign to keep its accounts open.
138. Based on these considerations, we find the Sunday Independent allowed corporate interests to influence its editorial decision to publish the column at issue, creating a conflict of interest that breaches clause 2.1.

Ruling

139. The panel unanimously finds that the Sunday Independent and all online and other entities that published the column in question
     • failed to meet the requirements for protected comment outlined in Section 7.2 of the Press Code and breached Clause 3.3.
     • breached Section 2.1 of the Press Code.

Sanction

140. The newspaper, IOL and any other associated entities that published the column in question are directed to retract the column and apologise to Maughan.
141. A note to this effect must be published in the next available edition of the Sunday Independent and any other printed newspaper that published the column. The note should be headed “Apology to Karyn Maughan”, include a summary of this ruling, provide a reference to the full ruling on the PCSA website and use the PCSA logo.
142. In considering how to deal with the online version of the article, we took into account that an order to remove an article should be rare as it changes the record. However, we felt special weight should be attached to the severe harm caused Maughan’s personal and professional reputation.
143. Accordingly, we direct that every online version of the article should be removed and replaced with a note that withdraws the article, apologises to Maughan and summarises this ruling. The note should be headed: “Apology to Karyn Maughan” and provide a link to the full ruling on the PCSA website. It must include the PCSA logo.
144. In addition, all social media accounts under the direction of the Sunday Independent, IOL and newspapers in the group are directed to highlight the apology and retraction, with a link to the retracted article and note of explanation.
145. All material prepared in executing the decision, including details of placement, must be approved by the Deputy Press Ombud.

Appeal

146. 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]

6 August 2024

Franz Krüger, Deputy Press Ombud
Prof Karthy Govender, public representative and
Joe Thloloe, media representative