Appeal Decision: Clive Rubin vs Sunday Times

SUMMARY

The headline to the story in dispute read, Seven expert tips to help 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 the Chair of the Appeals Panel Judge Bernard Ngoepe was based on the Press Code that became effective on 30 September 2022.

Clive Rubin’s complaint was directed against the headline. The basis complaint was that the phrase “fong kongs” referred to Chinese people, or was associated with them.

The article contained some points by an expert to help the public identify fake goods. It is common cause and knowledge that the words “fong kongs” referred to fake goods masquerading as genuine brands.

Initially, the Public Advocate (PA) declined to entertain the complaint on the basis that the relevant Cluse in the Press Code protected people, and not goods. Besides, the sub-headline made it clear that the reference in dispute was to goods, and not to people.

Rubin appealed, which brought the matter to the Ombud’s desk. The newspaper said, “The headline was indeed a reference to ‘fake goods’ using the term in common usage in South African colloquial English. It carries no xenophobic or racist meaning. The meaning (the applicant) ascribes to it is his”.

The Ombud dismissed the complaint for the same reason than the PA did.

Judge Ngoepe agreed. “The simple truth is that the clause seeks to protect humans, and not goods,” he said, thereby dismissing Rubin’s application for leave to appeal.

THE RULING ITSELF

BEFORE THE APPEALS PANEL OF THE PRESS COUNCIL OF SOUTH AFRICA

In the matter between:

Rubin Clive                                                                                                                 Applicant

and

Sunday Times                                                                                                       Respondent

1. Mr Clive Rubin (applicant) lodged a complaint against the Sunday Times (respondent) based on an article published on 1 March 2023 with the headline: “Seven expert tips to help avoid fong kongs”. The complaint was directed against this headline. The sub-headline read: “We speak to an expert on how to spot and avoid fake luxury goods”. The article then went on to report on a few points by the expert to help the public identify fake goods. It is common cause and knowledge that the words “fong kongs” refer to fake goods masquerading as genuine brands.
2. Here was the complaint as formulated by the applicant:
   

   “The headline is clearly crude and dangerous, using emotive and racially biased language, that is stereotypical, ethnically prejudicial and raises concerns about racially profiled xenophobia”. The applicant invoked clause 5.1 of the Press Code.

The basis of this argument is, simply put, that the phrase “fong kongs” refers to the Chinese people, or is associated with them, hence the reliance on clause 5.1 of the Press Code which prohibits discriminatory or denigratory references to people’s race, gender, etc.

3. Upon receipt of the complainant, the Public Advocate declined the complaint on the basis that the clause relied upon protected humans and not goods. The applicant insisted that the matter be placed before the Ombud, whereupon the Public Advocate sought a response from the respondent before doing so.
4. Here was the respondent’s response: “The headline was indeed a reference to ‘fake goods’ using the term in common usage in South African colloquial English. It carries no xenophobic or racist meaning. The meaning (the applicant) ascribes to it is his”.
5. In an attempt to bolster his argument that the headline offends against the Chinese people, the applicant sought to argue that counterfeit goods are “primarily, if not exclusively” manufactured by Chinese people. As the respondent says, there is no factual basis for this nor does the article say so; all it says is that such goods are purchased at flea markets or China malls; this is miles away from saying they are manufactured by the Chinese, or even sold by them.
6. The Ombud, in his Ruling dated 7 May 2023, dismissed the complaint for, amongst others, the very same reason as the Public Advocate did; namely, that clause 5.1 of the Code relates to people, not goods. The appellant now seeks leave to appeal.
7. I agree with the reasons given in the Ruling.  The simple truth is that the clause seeks to protect humans, and not goods. In an attempt to build his case, the applicant seeks to overcome this hurdle by arguing that the phrase used refers to the Chinese people. To bolster his case, he referred to other instances or situations, such as in songs, where the words “fong kongs” allegedly referred to Chinese people. But that was clearly in different contexts, where for example the lyrics could have been specific. In the present case, reference is clearly to goods and not humans, particularly if one were to look at the sub-headline. As the Ombud says, no reasonable reader would read the words as referring to people, but rather to counterfeit goods. The Ruling gave several reasons, not least that in any case the article is in fact of educational value to the public and therefore in the public interest, given that many people are duped and given the damage the sale of fake goods causes to the country’s economy.
8. Seriously looked at, the complaint is, to say the least, startling. The applicant and the complaining people of Chinese descent who want to join as amici curiae want the clause “fong kongs” to be associated with the Chinese people exclusively! Do they want the exclusive but dubious honour of being the only masters of “fong kong” goods – a word well established in South Africa even in dictionaries? Surely, as matters stand, ordinary people would refer to fake goods from say Russia, India, etc as also “fong kongs”?
9. The complaint was dead in the water from the beginning and should not have gone beyond the Public Advocate.
10. The application by many applicants representative of the interests of people of Chinese descent in the country to be joined as amici curiae adds nothing new. It is also based on, and seeks to rely on, the same flawed reasoning as the applicant’s complaint; it is likewise misconceived. The many instances they refer to have no bearing on the plain and explicit language of clause 5.1. The import of their argument is that the well established phrase “fong kong” should not have been used by the newspaper. It is difficult to imagine a more drastic restriction on the freedom and the purpose of the media.
11. The applicant’s application for leave to appeal, and the application to join as amici curiae, are hereby dismissed.

Dated this 24^th  day of July 2023.

Judge B M Ngoepe, Chairperson