Nathan Geffen and GroundUp vs TimesLive
Complaint 30710
Ruling by the Press Ombud
Date of article: 6 February 2024
Headline of publication: “Ray Joseph and GroundUp’s unethical pursuits and the journalism of suppositions”
Author: Makhudu Sefara
1. The complainant is Nathan Geffen, editor of GroundUp, being the second complainant.
2. Makhudu Sefara, editor of TimesLive and the author of the piece in question, answered on behalf of the publication.
Background
3. This complaint is directed at two paragraphs forming part of an opinion piece comprising more than 3000 words.
4. As lengthy and multi-layered as Sefara’s opinion piece was, it was but one salvo in what can justifiably be termed a war of words between prominent publications and media personalities. A very basic understanding of the background is unfortunately necessary.
5. GroundUp has, for several years, been writing exposés involving the National Lotteries Commission (NLC). Around 2019, GroundUp’s stories also started focusing on Sunday World, edited at the time by Sefara. The thrust of the allegations is that Sunday World received disproportionate advertising funding from the NLC whilst displaying an alleged bias towards the NLC. Sefara was personally named in some of these articles. He emphatically denies allegations of any unethical behaviour in the piece under consideration.
6. Both complainants and respondent went into some detail in their presentations about the checkered history between the parties. The only relevance thereof for current purposes is that there is a longstanding and public acrimony between the parties.
7. As a separate but related issue, there is also animosity between GroundUp and TimesLive.
8. Sefara took over the editorship of TimesLive during late 2020.
9. GroundUp makes its content available to other media outlets for republication under a Creative Commons attribution license. TimesLive often used GroundUp copy on its website. It appears common cause from the representations to this office that this is not occurring anymore and that this was on instruction by Sefara.
10. The decision by TimesLive not to use GroundUp copy is not the subject of this complaint. Both parties appear to take the stance – correctly so – that it is any editor’s discretion to publish what they deem appropriate. Such decisions do not ordinarily engage the jurisdiction of the Press Council and application of the Press Code.
11. I do not express any opinion whatsoever on this matter. However, the issue is relevant to this complaint as it is a theme in Sefara’s opinion piece being complained about.
12. It is best to use Sefara’s own words to summarise the opinion piece: “I’ve never wanted to respond to nonsense but when there is a clear agenda of unabashed self-interest, I must respond – even if to remind them of simple questions that ought to be asked in journalism.”
13. The opinion piece concludes with these sentences: “I didn’t want to respond but my hand was forced. So there.”
14. Sefara was responding to the GroundUp articles about Sunday World’s reportage on the NLC under his editorship by rubbishing claims of impropriety. He went on to sketch a lengthy background to his run-ins with GroundUp and a reporter responsible for most of GroundUp’s lottery reportage, Ray Joseph.
15. Sefara pulled no punches. However, the complaint is directed at the part of the opinion piece under the sub-headline, “Spirited attempt to be on TimesLIVE”. To paraphrase loosely, Sefara argues that GroundUp is upset with him for “banning” GroundUp copy from the website he now edits. The implication is that the allegations against him are to some part motivated by his long-standing feud with GroundUp role-players.
16. Sefara then provided his version of what led to his decision to stop using GroundUp copy:
“In December of 2020, I was asked to unpublish a story that was supplied by GroundUp which was false. I asked, why did they send a false court story? Was their reporter not in court? Naturally, I wanted to know what went wrong so this was not repeated.
“The response was flippant: ‘The reporter is on holiday, we will revert in January’ is the summary. I believed this to be unreasonable. I had not asked for the reporter’s leave to be cancelled. All they had to do was to ask the reporter to take five minutes to explain, so they could explain to us. But no, TimesLIVE must just unpublish the falsity and wait until after the December 2020 holidays.”
The complaint
17. Geffen says it is false that GroundUp’s response was “flippant”. GroundUp also did not say anything that can be “‘summarised’ to mean ‘the reporter is on holiday, we will revert in January’.”
18. He argues the statement is in breach of clauses 1.1., 1.3, and 7.2. of the Code:
“Insofar as it is news (reportage) the summary of the facts presented by Mr Sefara in the statement is not truthful, accurate or fair… Insofar as it is opinion, it is not based on fact.”
19. Sefara denies any breaches of the Code.
20. He says “the comment [he] made about the response being flippant was fair, reasonable and justified.” He further says the statement complaint of was his opinion expressed on the basis of facts considered common cause.
The retracted GroundUp article
21. It is again necessary to take a slight detour to the facts of December 2020 pertaining to the retraction which stands central to the current dispute.
22. Geffen explains that GroundUp published a court report by an inexperienced reporter. The report intimated that a court has halted an eviction. It turned out that there was no court order. The inexperienced reporter mistook a notice of motion and/or heads of argument with a court judgment.
23. When GroundUp realised the error, they immediately contacted all media outlets who republished the story to retract it in full as it could not be “saved” through corrections, clarifications, or updates. It was simply wrong and should never have been published in the first place, by GroundUp’s own admission.
24. Geffen wrote an e-mail to editors of TimesLive on 22 December 2020 stating:
“Huge apologies. We made a mess of this story. There is no way to correct it. It simply has to be retracted.
“There is no court order. There was a notice of motion but no evidence that the court granted the order. I’m afraid we were misled by one of the sources, but the fault is very much ours.
“Sorry, in the new year, when we return to work, we’ll look into why our systems broke down and this story got through.”
25. Geffen emphasises that it is not this office’s role to judge GroundUp’s error that led to the retraction. I agree. It does not form part of any complaint and the Press Code requires all subscriber members to promptly correct errors of judgment, as GroundUp did. The error aside, GroundUp deserves recognition for attempting to redress the error as quickly and best as possible.
26. Sefara was, also understandably, upset about the need to retract a story under such circumstances. Readers of a publication care little for journalistic practices such as syndicated copy. An editor takes responsibility for whatever appeared on his or her platform and TimesLive unfortunately ended up with egg on its face. His interest was to protect the credibility of TimesLive.
27. Geffen says, after his e-mail calling for retraction on 22 December 2020, he next heard from a TimesLive representative on 18 January 2021 asking for an explanation of what transpired. Geffen responded to that representative by saying there was a lack of editing staff and “an inexperienced reporter completely misunderstanding court process”. Geffen also said they would be having legal reporting training for reporters “to ensure this kind of thing is less likely to happen again.”
28. From the submissions in this matter, it appears as if Sefara is still not satisfied with the explanation provided by GroundUp. Whether this is a fair and reasonable attitude to adopt is not for me to decide. It remains a highly subjective matter which falls within the discretion of Sefara as an editor, as it was within Geffen’s exclusive discretion as GroundUp’s editor to decide how to resolve the issue with the “inexperienced reporter”.
Analysis
29. The Press Code distinguishes between factual reporting and commentary.
30. The complainants reference three clauses:
30.1. Clause 1.1. requiring truthful, accurate and fair news reporting.
30.2. Clause 1.3. requiring the media to present only what may reasonably be true as fact and to distinguish this from opinions, allegations, rumours or suppositions.
30.3. Clause 7.2., being the protected commentary clause. “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.”
31. The point of departure is to ascertain whether the piece is an opinion piece or news reportage. I do not foresee difficulty for ordinary readers to have identified the piece as an opinion piece:
31.1. It is written in first person from the perspective of Sefara, even in the sub-heading of the piece.
31.2. Sefara’s capacity, as editor of TimesLive, is prominently displayed.
31.3. The piece is labelled as forming part of a section for “Ideas” and not news reportage.
32. Whether a published piece as a whole is an opinion piece or not, is not the end of the enquiry, but the starting point, for protected commentary affords a “safe harbour” for the media against allegations of contraventions of other clauses of the Press Code. (See: Goss Marlon vs News24, complaint 4555)
33. Such safe harbour is only applicable if the following conditions are met:
33.1. The subject matter is in the public interest.
33.2. The comment must, in fact, be comment and clearly appear to be comment.
33.3. The comment must have taken fair account of all material facts that are either true or reasonably true.
33.4. There must be an absence of malice.
Public interest
34. Sefara’s piece must be viewed in its proper context. It was, as already mentioned, but one salvo in a much larger war.
35. It was, in effect, a public response to allegations of impropriety involving public funds of the NLC. The opinion piece sets out this context in some detail. As such, the subject matter of the opinion piece was indeed in the public interest.
Absence of malice
36. The complainants do not allege “malice” in the sense applicable to journalism. There is certainly a fair amount of acrimony. All sides intend to point fingers and to “expose” one or another entity or person, but that in itself is not illustrative of malice in the definition adopted by this office, as formulated by the Constitutional Court in The Citizen 1978 (Pty) Ltd and Others v McBride.
Comment clearly identified as such
37. As stated above, a determination of the overall nature of the piece, which is an opinion piece, is not dispositive of whether all statements in a piece are opinions expressed. (Appeals Decision: Patriotic Alliance vs News24).
38. What requires further scrutiny, is whether a statement complained of was indeed commentary or a factual assertion within the opinion piece.
The “false” unpublished story
39. The first sentence reads as follows:
“In December of 2020, I was asked to unpublish a story that was supplied by GroundUp which was false.”
40. In my view, it is quite clear-cut that a reasonable reader would consider this a factual assertion within the opinion piece.
41. The offending word is “false”, which is a conclusion or descriptor by the author of the article. Such inferences, or conclusions, are permissible as long as it is justifiable. In National Lotteries Commission vs GroundUp, I held that it would be unrealistic to expect journalists not to draw justifiable logical inferences, even in factual reporting. A journalist ought to be allowed to call a spade a spade, as it were, even if an offended party might have preferred different word choices.
42. The common cause facts are these: There was a GroundUp story which was entirely incorrect. There was reportedly a court order, which turned out to be non-existent. The story was incorrect to such an extent that it could not be salvaged but had to be retracted as a whole.
43. Under these circumstances, I cannot find that the sentence was factually incorrect.
The questions asked
44. The next sentence under scrutiny is:
“I asked, why did they send a false court story? Was their reporter not in court? Naturally, I wanted to know what went wrong so this was not repeated.”
45. The parties have different views on this aspect.
46. Geffen argues that these specific questions were never posed to him or GroundUp. It is therefore false.
47. The gist of Sefara’s response is that he posed those questions – not necessarily verbatim – to himself and his news editors, who he asked to seek an explanation from GroundUp. Sefara sent an e-mail to his news editors saying TimesLive would not publish stories from GroundUp “until we have received an explanation on what the lapses were, how they were not picked up, how they dealt with them and how we can make sure we don’t end up with egg on our faces again because of them (GroundUp)”.
48. I am not convinced that the sentence in question would be perceived by a reasonable reader as a factual and literal statement that this was the verbatim query directed by Sefara to Geffen or GroundUp.
49. The crux of it is that Sefara questioned the incident, which he did. There is no claim that those words were used verbatim towards GroundUp.
“Flippant”
50. The next sentence stands central to the complaint:
“The response was flippant: ‘The reporter is on holiday, we will revert in January’ is the summary.”
51. Both parties went into considerable detail on the timeline of events. Puzzling these two together, the following occurred:
51.1. Geffen requested the retraction on 22 December 2020 and undertook to “look into why our systems broke down and this story got through”. This would be done “in the new year, when we return to work”.
51.2. Sefara sent out an e-mail to his team on the same day saying no GroundUp story must be published until an explanation is received.
51.3. Sefara says he then “verbally asked the news editors to request GroundUp for an immediate explanation”. He continues: “One of the news editors reverted: the explanation could only come after the holidays because the reporter who got the story wrong was already away on holiday.”
51.4. TimesLive, through one of its staff members, followed up with Geffen on 18 January 2021 asking for an “update on what happened with this particular story”.
51.5. Geffen responded on the same day by giving an explanation.
52. Geffen says he was anything but “flippant” about the embarrassing error. Nothing in his correspondences to TimesLive can be considered “flippant”.
53. In considering the use of the word flippant, the very next sentence in Sefara’s piece must also be considered. He wrote: “I believed this [response] to be unreasonable…TimesLIVE must just unpublish the falsity and wait until after the December 2020 holidays.”
54. A reasonable reader reading the particular paragraph would not, in my view, be confused that it is Sefara’s view or opinion that GroundUp was “flippant”. Whether the view is correct, is not the issue. He is entitled to his opinion, even if it could be viewed by some as exaggerated, extreme, unjust, unbalanced, or prejudiced (which I express no view on).
55. Geffen also raises the issue of the “reporter being on holiday” as being incorrect, and this is dealt with below.
Factual basis for opinion
56. Referring to the communications between the parties, the complainants say there is “no factual basis to support the statement that the response was flippant”.
57. They also say that “nowhere in any of the communication…is there anything that can be ‘summarised’ to mean ‘the reporter is on holiday, we will revert in January’. The summary is accordingly false.”
58. It is true that the e-mail communications cited by the parties do not refer to a reporter being on holiday. Sefara says this is what he was informed by one of his news editors. He did not claim that those words were used, but explicitly qualified the words to be a “summary” of the response he received. It is further common cause that Geffen did write in his e-mail in December 2020 that GroundUp would revert with an explanation “in the new year, when we return to work”. Through the submissions, it emerged that 21 December was the last working day of GroundUp. The entire team was then on holiday.
59. What the Press Code requires, is for opinions to be based on facts that are true or reasonably true.
60. Dissecting every word of this particular sentence is unhelpful. It is the sting of what has been said that must be shown to be true or reasonably true. As I view it, the sting is as follows: There was a request for a retraction without an immediate, detailed explanation, which would only be forthcoming after the holidays.
61. This appears to be substantially true. Whether someone informed Sefara that the reason for the delayed explanation is the leave of a journalist (as Sefara states) or whether the reason for the delay was the fact that GroundUp’s entire office closed on 21 December 2020 for the holidays (as Geffen states) does not affect the core of the “facts” presented to readers.
Opinion piece must have taken fair account of all material facts
62. The final consideration is the imperative in clause 7.2. that comment must have taken fair account of all material facts.
63. Given the full ventilation of the sequence of events in the submissions by the parties, there is one troubling aspect in the piece.
64. Sefara wrote, in 2024, some three years after the incident of the GroundUp report:
“I told the news editors that we should stop publishing GroundUp until we get the explanation. Instead of bringing an explanation, GroundUp approached Sunday Times editor S’thembiso Msomi to get him to override my decision…”
65. This is an entirely different scenario than having to wait for a detailed explanation until after the December holidays, which Sefara views as having been “flippant”.
66. The objective fact is that Geffen did provide a detailed response to TimesLive on 18 January 2021. He said there was an end-of-year lack of editing staff and inexperience from the reporter who misunderstood court processes. “She misunderstood Heads of Argument to be a court finding, and the editors didn’t check the court documents ourselves, which we should have.” Geffen proceeded to say what GroundUp would be doing to minimise the risk of repetition of such a mistake, i.e. training.
67. The fact that GroundUp did revert – albeit after a follow-up from TimesLive – with a detailed explanation, is a very material fact in the context of the opinion piece. A reasonable reader is left with the impression that, to this day, there has been no explanation from GroundUp. GroundUp is avoiding providing an explanation but is instead trying to circumvent Sefara’s authority as editor through other means to “lift the ban”, so to speak.
68. In the context of Sefara’s opinion piece, it matters a very great deal whether GroundUp offered an explanation or not. It informs readers to agree or disagree with the views expressed by Sefara.
69. It is worth repeating the same sentiments expressed by this office in Judge Rusi vs City Press: A journalist need not be satisfied with an explanation or be bound to report it as the truth. A journalist may still opine that an explanation was unsatisfactory or even contradict an explanation. But a publication is not entitled to omit a very material fact or, just as in Judge Rusi matter and this matter, make a positive averment that no explanation was offered.
70. This does not take fair account of material facts and causes an opinion to leave the “safe harbour” of clause 7.2.
71. Stating to readers that no explanation was provided, is a factual assertion within the opinion piece which stands to be adjudged as factual reporting regulated by clause 1.
72. The publication made an incorrect factual assertion. It is in breach of clause 1.1. of the Press Code.
Sanction
73. A breach of clause 1.1. is a Tier 2 (serious) breach.
74. The factual inaccuracy, that GroundUp did not offer an explanation, needs to be corrected.
75. TimesLive is directed to update the article online to correct the statement that no explanation was offered. It should also briefly set out GroundUp’s explanation.
76. A note should also be published at the beginning of the article – but below the headline – that the piece has been updated following a finding by the Press Ombud.
77. The update itself, together with the Press Council’s logo and referral to the full finding, may appear at the end of the article.
78. The wording of the update shall be approved by the Press Ombud prior to publication.
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].
Herman Scholtz
Press Ombud
6 September 2024