Ryan Smit vs. Netwerk24
SUMMARY
Netwerk24’s website (published on 8 June 2018).
This ruling by Press Ombud Johan Retief 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.
Retief 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.
The complaint was dismissed.
THE RULING ITSELF
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Complainant
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Ryan Smit, executive director of Cause for Justice (a non-profit human rights organisation)
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Date of article/picture
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8 June 2018 |
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Respondent
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Marga Ley, internal ombud |
Complaint
Smit complains that Netwerk24 showed, without warning, naked female breasts on its website.
The arguments
Smit argues that, merely blocking the nipples with little ice cream cones while showing the rest of the breasts in their entirety, was in violation of the Press Code. He says he also acts in the interest of Cause for Justice’s members as well as the public, including children.
Ley denies that the picture of Ms Kendall Jenner, a model and reality star, amounted to inappropriate, graphic and explicit sex.
She argues, “There is no sign of a nipple, just clearly rounded breasts. We believe even children know breasts are rounded and have seen that regularly on the beaches of our country. They also see it in public in our country where naked breasts – nipples and all – are in many cultures not frowned upon and accepted as normal.”
Smit replies that Netwerk24’s response is careless, illogical, unacceptable, and even disturbing.
He quotes the Bill of Rights (Section 28.2) in the South African Constitution states: “A child’s best interests are of paramount importance in every matter concerning the child.”
He also argues it is disingenuous to suggest that the nipple of a female breast is the only factor making full frontal waist-up nudity inappropriate for children.
He adds, “Equally disingenuous and disturbing is the suggestion that it would be acceptable for female persons to walk around on public beaches only covering their nipples. There is a huge difference between children knowing that female breasts fully covered by a swimsuit are rounded, and exposing children to nude female breasts (except for covering the nipples). Persons acting in this manner on public beaches will be in breach of South African law prohibiting flashing and would be liable to prosecution.”
Smit also rejects Ley’s “attempted justification” of the display of nude breasts on the basis of supposed cultural norms.
He concludes that Netwerk24 should have properly hidden the picture behind a prominent warning display, indicating that such content is graphic and inappropriate for certain audiences such as children.
Analysis
Section 9.2 of the Press Code says, “ Content which depicts…explicit sex should be avoided unless the public interest dictates otherwise, in which case prominent indication and warning must be displayed indicating that such content is graphic and inappropriate for certain audiences such as children.”
The picture in question did not portray sex, let alone “explicit sex” – it was about nudity.
There is a (decisive) difference between sex and nudity. The Code does not prohibit the latter, but leaves it up to publications to decide for themselves what should be published and what not. It also does not prohibit pictures of sex – it clarifies by saying “explicit” sex. And even then, it is permissible if it is in the public interest.
South Africa is an open society, and this office should do nothing to suppress our hard-earned freedom of speech and expression.
If the picture contained explicit sex, I would have expected Netwerk24 to warn readers about it.
Finding
The complaint is dismissed.
Appeal
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].
Johan Retief
Press Ombud