Appeal Decision: Ryan Smit vs Netwerk24

SUMMARY

Netwerk24’s website (published on 8 June 2018).

This ruling by the Chair of the Appeals Panel Judge Bernard Ngoepe was based on the Press Code that was in effect before 30 September 2022.

Ryan Smit, executive director of Cause for Justice (a non-profit human rights organisation), complained that Netwerk24 showed, without warning, naked female breasts on its website.

The Ombud said that, while the Press Code prohibited the publication of explicit sex (unless it was in the public interest), it did not say anything about nudity. He pointed out that there was a decisive difference between sex and nudity – the latter was left up to publications to decide for themselves what should be published and what not. “South Africa is an open society, and this office should do nothing to suppress our hard-earned freedom of speech and expression,” he concluded.

Smit applied for leave to appeal after the Ombud had dismissed his complaint.

Judge Ngoepe opined that the Constitution, properly understood, did not support the complaint. The application for leave to appeal was dismissed.

THE RULING ITSELF

In the matter of

RYAN SMIT                                                                                                          APPLICANT

AND

1. Netwerk24 (“respondent”) publsihed on 13 June 2018 the photo of a model, one Kendall Jenner.  On it, the breasts were not covered, except that the niples were covered with ice-cream cones.  Mr Ryan Smit (“applicant”) lodged a complaint against the photo.  As the Ombud says in his Ruling dated 5 July 2018, “Smit complains that Network 24 showed, without warning, naked female breasts on its website”.  The applicant complained that the publication of the photo was in violation of the Press Code as it showed the breasts in their entirety.  The respondent denied that; it pointed out that the nipples were covered and that, in any event, in other cultures, bare breasts are displayed.  The applicant had also sought to invoke the provisions of the Constitution, to argue that the photo was not in the best interests of children.
2. The Ombud, in his Ruling, dismissed the complaint in its entirety.  He held that the publication of the photo did not portray sex, let alone “explicit sex” as provided in the Code. However, while dismissing the complaint, the Ombud added that the photo portrayed “nudity”.  I have reservations even about that, for the reasons I mentioned earlier about other cultures. Nor would the Constitution, properly understood, support the complaint.
3. The application has no prospects of success before the Appeals Panel; it is therefore dismissed.

Dated this 11th day of October 2018

Judge B M Ngoepe, Chair, Appeals Panel