Prof Shabir Moosa v SA Jewish Report (SAJR)
SUMMARY
The headline to the story in dispute read, Professor of Propaganda (published on 3 June 2021).
This ruling by Deputy Press Ombud Herman Scholtz was based on the Press Code that was in effect before 30 September 2022.
This complaint about an opinion piece was initially rejected by the Public Advocate as he found the article was clearly marked as an opinion piece, as opposed to a factual news report, and that there was no prima facie breach of the Press Code.
On 25 July 2021, Scholtz accepted the complaint for adjudication.
Moosa, a professor in medicine at the University of the Witwatersrand, complained about the reference in the article to a WhatsApp message that he had sent to his students. In this message, Moosa referenced a video apparently depicting Israelis singing and dancing, as well as a fire at the Al-Aqsa Mosque complex. He said the cheering was an act of hatred and celebration, while the article said that the Jews were celebrating Yom Yerushalayim, an annual celebration of the “liberation of the Old City of Jerusalem”. Also, the mosque was never on fire, he remarked – it was a tree in the Al-Aqsa complex that had been burning. The opinion piece criticised Moosa’s use of an educational WhatsApp group to spread what he viewed as propaganda.
Moosa inter alia complained that the reportage was unbalanced, that the SAJR was conflicted in this matter, that the headline was intended to denigrate him and to mislead the public, that the SAJR had “invaded the privacy of the teaching space”, and that the use of his picture was problematic.
Scholtz found that the text was an opinion piece as it was clearly marked as such; as it was written, in large part, in the first person; and as the author clearly expressed opinions. This, he added, did not discharge the publication from accountability.
The Deputy Ombud identified the two main issues in dispute – the questions if the piece took fair account of all material facts that were either true or reasonably true, and if it was malicious. He dismissed the complaint on both counts as he could find no evidence to support the claims.
Scholtz also found there was no merit in the allegation that the SAJR had invaded the privacy of the teaching space through the opinion piece and opined that the headline had accurately reflected the contents of the text. Also, there was nothing untoward in the usage of Moosa’s picture alongside the opinion piece.
THE RULING ITSELF
Complaint 8974
Date of article: 03/06/2021
Complainant: Prof Shabir Moosa
Respondent: SA Jewish Report
Headline: “Professor of Propaganda”
Author: Howard Sackstein
Particulars
- This complaint was initially rejected by the Public Advocate as he found the article was clearly marked as an opinion piece, as opposed to a factual news report, and there was no prima facie breach of the Press Code.
- On 25 July 2021, I accepted the complaint for adjudication for reasons already provided.
- The complainant, Prof Shabir Moosa (“Moosa”) was given an opportunity to supplement his complaint based on provided guidelines. The respondent, SAJR, was then provided an opportunity to respond.
- Unfortunately, the attempt to narrow the issues in dispute through guidelines had the opposite effect. The papers filed in this matter are voluminous. I considered each and every submission by both parties even though it is impossible to summarise or refer to all of them.
Complaint
5. Moosa complains about an opinion piece penned by Howard Sackstein (“Sackstein”), chairperson of the SA Jewish Report. Moosa is a professor in medicine at the University of the Witwatersrand.
6. The two imminent persons are at loggerheads about a message Moosa sent on a WhatsApp group for Wits medical interns.
7. In the WhatsApp message to the medical interns, Moosa referenced a video apparently depicting Israelis singing and dancing, as well as a fire at the Al-Aqsa Mosque complex.
8. The core of the feud between Moosa and Sackstein seems to be the reason for the cheering: Moosa says it was an act of hatred and celebration of the burning of the Al-Aqsa Mosque. Sackstein writes in his opinion piece that the Jews were celebrating Yom Yerushalayim, an annual celebration of the “liberation of the Old City of Jerusalem”. The mosque was never on fire, but a tree in the Al-Aqsa complex, Sackstein says. Sackstein’s opinion piece criticises Moosa’s use of an educational WhatsApp group to spread what he views as propaganda.
9. Moosa’s WhatsApp message asked: “Just how does anybody justify this? Where is the universal condemnation? This is not just any mosque. It is the third holy space of Muslims across the world!”
10. On his rationale for posting the content to the WhatsApp group of Wits doctors, Moosa says: “I thought it important that young South African doctors be sensitive to hate speech.”
11. Moosa’s complaint is as follows:
11.1. Unbalanced reporting of news.
11.2. Conflict of interest by the SAJR.
11.3. Privacy, dignity and reputation. “The SAJR has invaded the privacy of the teaching space.”
11.4. An obfuscation of the facts evident from the video.
11.5. The headline, “Professor of Propaganda”, which is “intended to denigrate (Moosa) and misleads the public”.
11.6. The usage of Moosa’s picture in the printed edition of the SAJR opinion piece.
Analysis
12. The SAJR relies on Clause 7 of the Press Code, being protected commentary.
13. Clause 7 of the Press Code stipulates:
“7.1. The media shall be entitled to comment upon or criticise any actions or events of public interest; and
7.2. 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.”
14. Moosa contends that the labelling of the article as an opinion piece is “arbitrary and aimed at evading accountability”. He cites examples of where Sackstein wrote articles in his capacity as a journalist and intimates that only people who are not employees of a publication can write opinion pieces.
15. This is incorrect. Journalists routinely write opinion pieces in their publications. An opinion piece also does not discharge a publication from accountability. As the Appeal Panel stated in Goss vs News 24 (8524/02/2021), “Clause 7 is…not a blank cheque”. The clause has strict requirements to avoid abuse.
16. I am satisfied that the article in question is indeed an opinion piece for the following reasons:
- The article is clearly marked as an opinion piece.
- The article is written, in large part, in first person from the perspective of Sackstein.
- The credentials of the writer, and the capacity in which he expressed his opinion, is identified, as is customary in opinion pieces.
- The author clearly expresses opinions in the article. One example is the concluding sentence: “I can’t help thinking that our doctors deserve a better education, and certainly better educators.”
17. It is not disputed that the subject matter was in the public interest. The only disputed issues are the absence of malice and whether fair account was taken of all material facts that are either true or reasonably true.
18. It is for this reason that I requested the complainant to narrow down the complaint by “clearly identifying the factual statements in the piece that are alleged to be incorrect”. This was not done. In fact, both parties further obfuscated the issues to be decided by detailing irrelevant material and political rhetoric.
Fair account of facts
19. What the opinion piece boils down to, is Sackstein’s opinion that Moosa acted inappropriately by sending contested ‘facts’ and commentary on the WhatsApp group.
20. He supports his opinion by explaining that the Jewish celebration of Yom Yerushalayim coincided with the Muslim tradition of Laylatul Qadr on the date of the incident. Sackstein cites a BBC report as source that a tree caught fire at the mosque complex amidst protests and police intervention.
21.. Sackstein then expresses his opinion by writing:
“Film crews capturing the singing and dancing for Yom Yerushalayim panned up to see a tree ablaze on the Temple Mount. Pro-Palestinian activists, not wanting to miss an opportunity, utilised these images claiming that the exuberant crowd singing and dancing at the Western Wall were, in fact, cheering the ‘burning of the Al-Aqsa Mosque’.”
22. This, in a nutshell, is clearly Sackstein’s interpretation and opinion. Moosa holds a different opinion about the reason for the singing. Both men are entitled to their interpretations and the one will clearly not convince the other.
23. The facts, as opposed to the opinions, remain undisputed. There were indeed two celebrations that coincided. Moosa did send the WhatsApp message on the group and maintained that the singing was unacceptable hate speech.
24. In the opinion piece, Sackstein also details his WhatsApp interaction with Moosa about the issue. He states that he provided Moosa an opportunity to ‘correct’ his alleged misrepresentations to the students.
25. The reader of the opinion piece is therefore informed of the opposing views on the matter and the basis for those views.
Malice
26. Despite the seriousness of an allegation of malice by publications, it invariably gets raised in complaints about opinion pieces and news reports alike. In this matter, both parties accused the other of malicious conduct.
27. Moosa says the ‘tone and tenor’ of Sackstein’s WhatsApp messages to him points to malice and the labelling of the article as an opinion piece was ‘a malicious attempt to avoid scrutiny and to attack (his) integrity and possibly (his) livelihood with impunity’. He urged the Ombud to adopt a definition of malice as ‘the desire to harm someone; ill will’.
28. The SAJR says Moosa’s complaint is vexatious and aimed at silencing the SAJR while promoting his political agenda. The SAJR denies malice in the opinion piece.
29. The precise meaning of malice has not received extensive attention in Press Ombud rulings. In Kelly Khumalo vs City Press (11 January 2021) the then Ombud said his understanding of the word is ‘the intention to cause harm’, but added that harm does not automatically amount to malice. The Preamble to the Code uses the word ‘unnecessary’ harm which should be avoided. The Ombud held:
‘There are times when it is the media’s job and responsibility to cause a subject harm – if it is in the public interest to do so.’
30. I am in agreement with the sentiment expressed. However, in the current context, even ‘the intention to cause unnecessary harm’ is a subjective and imprecise definition. In the context of an opinion piece, the subject of a critical piece will undoubtedly feel that it causes her unnecessary harm.
31. Clause 7 closely reflects the legal position pertaining to the defence of protected comment. The interpretation of the courts of the concept of malice provides a more precise understanding of the type of conduct that would defeat the protection afforded by Clause 7.
32. In the leading case of The Citizen 1978 (Pty) Ltd and Others v McBride[1], the Constitutional Court confirmed that malice ‘indicates an abuse of right’. The court further referred to foreign judgments that described malice as conduct that encompasses ‘an indirect or improper motive’.
33. A publication would be acting with malice if there is a demonstrable ulterior motive or, for example, the author of the article proffers falsities while knowing that the ‘facts’ advanced are incorrect.
34. Applying these principles to the complaint, there is no evidence of malice. Sackstein questioned the appropriateness of Moosa using an educational platform for political purposes. He laid a complaint to that effect with the University of the Witwatersrand. His expressed concern – rightly or wrongly – is that Moosa occupies a position of power and should not be allowed to distribute what Sackstein views as propaganda.
35. There is nothing that indicates that Sackstein did not express his honestly held opinion, whether it is correct or not.
36. Consequently, the SAJR is entitled to rely on Clause 7.
Other complaints
37. The remainder of the complaints need little attention.
38. There is no merit in the allegation that ‘the SAJR has invaded the privacy of the teaching space’ through the opinion piece.
39. The headline of the opinion piece is an accurate reflection of the contents of the opinion piece. Sackstein’s central argument is that Moosa advanced propaganda on an educational platform.
40. There is nothing untoward in the usage of Moosa’s picture alongside the opinion piece.
Conclusion
41. The complaint is dismissed.
Herman Scholtz
Deputy Press Ombud
4 October 2021
[1] 2011 (4) SA 191 (CC) at para 105
