Appeal Hearing Decision: Pillay Verashni vs Afriforum and MMA and SANEF

IN THE MATTER BETWEEN:

 PILLAY VERASHNI                                                                                   APPELLANT

AND

1.         On 13 April 2017 The Huffington Post South Africa (“Huffington”) published a blog with the title “Could it be time to deny white men the franchise?” The author of the blog claimed to be one Shirley Garland, who described herself as an activist and feminist student completing an MA degree in philosophy.  Ms Verashni Pillay (“appellant”) was the Editor-in-Chief of the Huffington. She defended the blog, but her defence of it was later deleted.  The blog invoked a lot of responses, many decrying it as being racist and discriminatory against white men.

2.         AfriForum (“respondent”) filed a complaint with the Press Council, dated 18 April 2017, based on the article.  Respondent summarized the content of the blog as follows:

“a      White men were to blame for ‘(s)ome of the biggest blows to the progressive cause in the past year’.

b.      These ‘blows’ according to the author, included international events such as Brexit, the election of Donald Trump as President of the United States and the DA’s governance of four of South Africa’s biggest cities.

c.       The influence of ‘reckless white men’ were also cited as ‘one of the primary reasons that led to the Great Recession that began in 2008’.

d.      It was furthermore stated that ‘Over the past 500 years colonialism, slavery, and various aggressive wars and genocides, have been due to the actions of white men’.

e.      Also, it was argued that ‘white males still believe that they are in control, and people who aren’t white or male (in particularly black female identifying people) have to bow to their every whim’.

f.  It was also argued that white men should be denied the right to vote for ‘between 20 and 30 years’ in order to reduce the ‘influence of reactionary and neo-liberal ideology in the world’.

g.      Furthermore that denying white men the right to vote would ‘strike a blow against toxic white masculinity, one that is long needed’.

Respondent also argued that the article contained certain factual errors; e.g. that 90% of the land belonged to whites and 97% of the Johannesburg Stock Exchange was owned by white males.  Respondent also accused the appellant of defending a racist article.

3.         The post was subsequently taken down as the identity of the blogger            could not be verified.  The respondent submitted that the publication of the blog, as well as appellant’s defence of it, amounted to (a) hate speech and (b) unfair discrimination.  That being the case, the policies of The Huffington Post South Africa, the Press Code and the Constitution, have been breached.  This breach, respondent argued, amounted to a “serious misconduct”.  The respondent asked for the following findings:

“a.     A declaration that the article in question amounts to:

i.          Hate speech; and/or

ii.         Unfair discrimination; and/or

iii.        Racism/ and/or

iv.        Sexism.

b.      A finding that the Huffington Post South Africa and Pillay apologise to white men and all those who were offended by the article.

c.       A recommendation that Pillay resigns as Editor-in-Chief of the Huffington Post South Africa”.

4.         Upon receipt of the complaint, the appellant apologized on behalf of the Huffington Post and herself as the Editor-in-Chief for the publication of the blog.  She also said the blog was removed as the identity of the blogger could not be verified, adding that the blog was a “planned and malicious attack on our systems. We also retracted the blog because the content therein sailed too close to what is prohibited in the press code and our constitution.  We believe in universal enfranchisement”. She said they would strengthen their processes going forward, and apologized “for the publication of the blog and any of its content that may have been in breach of the press code”.

5.         By the time the matter came before the Ombud, there were other complainants as well: Mr Christopher McCreanor, (“second respondent”) and Mr Sean King (“third respondent”).  When it reached us, the number of participants had increased: two entities joined in as amici curiae: South African National Editors’ Forum (“SANEF”) and Media Monitoring Africa (“MMA”).  They too have made submissions.

6.         In his Ruling dated 27 April 2017, the Ombud considered that the matter centred around two articles of the Press Code; namely 5 and 7.   He made the following findings:

6.1      that Huffington Post published text that was discriminatory and denigratory, thereby acting in breach of articles 5.1 and 5.2 of the Code;

6.2      that the comment by the blogger was not protected in that it was in breach of article 7; it was not redeemed by the exemptions under that article;

6.3      that Huffington Post offended the Preamble to the Code by publishing the blog without first verifying the identity of the author;

6.4      that the publication breached article 3.3 of the Code, which enjoins the media to “exercise care and consideration in matters involving dignity and reputation …”.

A very drastic sanction was imposed, which entailed “apologizing unreservedly” for inter alia text which was considered discriminatory, amounted to hate speech, and which was malicious, against public interest etc.

6.5   However, the Ombud declined to make a declaration, as had been asked for by the  respondent, that the blog had violated the Constitution, and the core values of The Huffington Post. Also declined was the request for a directive that the appellant resigned her position. The Ombud, correctly, ruled that those issues fell outside his jurisdiction.

7.         After the Ombud’s Ruling, the appellant resigned her position as the Editor-in-Chief of The Huffington Post South Africa.  The matter, especially in light of her resignation, continued to attract more public interest and debate; so much so that Mr Thloloe, the Executive Director of the Press Council, decided to take it upon himself to lodge an appeal, dated 25 April 2017, against the Ombud’s Ruling. Apparently this was prompted by the fact that The Huffington Post was not appealing. Mr Thloloe said that he had locus standi as the Executive Director of the Press Council.  He indicated that the matter was of public importance as it involved the interpretation and application of articles 5 and 7, and therefore warranted adjudication by the Appeals Panel as the Council’s highest level of adjudication.  He also pointed out that the matter and the Ombud’s Ruling attracted different views from different walks of life.  However, Mr Retief, the Ombud,  expressed some reservations about the desirability of allowing an officer of the Press Council to be the appellant, as well as his locus standi. In the meantime, the appellant lodged her own appeal.  This has made it unnecessary for us to consider the validity or otherwise of Mr Thloloe’s appeal or his locus standi. After considering submissions by the appellant in support of her own application, leave was granted, and, given the importance of the issues at stake, with the directive that the appeal be heard by a panel of five.

8.         The real issues before us were whether the contents of the blog were in violation of articles 5.1 and 5.2 of the Press Code, which prohibits discriminatory and hate speech, respectively.  The article must of course be considered against the background of the Constitution, in particular, section 16 thereof which recognises and protects freedom of speech. Section 16(2)(c) does however deny protection to a speech which amounts to “(A)dvocacy of hatred, that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm”.  Articles 5.1 and 5.2 of the Code therefore derive from the above section of the Constitution. The importance of freedom of speech has been emphasized by our courts in many decisions; for example, in S v Mamabolo 2001(3) SA 409 (CC) at para 37. It is against this background that the matter must be considered.

Whether the content of the blog breached article 5.1 of the Press Code.

9.         Article 5.1 stipulates that “the media shall avoid discriminatory or denigratory reference to people’s race, gender, sex ...”.  In his heads of argument, counsel for the respondent, Mr Oppenheimer, submitted that the blog amounted to discriminatory speech because it “singles out white men as a class of people deserving of different treatment. On the grounds of their race and gender, they alone are to have their franchise stripped away and their property confiscated.  On its face, this amounts to unfair discrimination in terms of the constitution.  The particularly odious burdens that the article seeks to place on white men is further evidence that the discrimination is unfair”.  One of the essential elements of discrimination is the depiction of the victim of the alleged discrimination as being less that human.  This point was again made recently by the Constitutional Court in South African Revenue Service vs Commission for Conciliation, Mediation and Arbitration 2017(1)SA 549 (CC), at paragraph 4, where the court, denouncing the “k-word” said that the word had “acquired a particularly excruciating bite or delegitimising effect” when used by a white person against an African compatriot. In the present case, as Mr Winks for the appellant pointed out, the blog conveys the very opposite about white men: it portrays them as being virtually superhuman, powerful and dominant. This depiction of them is a far cry from being denigratory. We therefore disagree with the Ombud’s ruling that the piece amounted to discrimination.

Whether there has been violation of article 5.2

10.      Article 5.2 of the Press Code prohibits the publication of “material that amounts to … incitement of imminent violence, or advocacy of hatred that is based on race, ethnicity, gender or religion and that constitutes incitement to harm”.

The question is therefore whether the blog amounts to hate speech as contemplated in article 5.2.  The respondent insists it does, because it blames white men for all the ills in the world such as Brexit, the election of Trump, the great recession, colonialism, slavery, war and genocide; it is an advocacy of hatred on the grounds of race and gender. The harm which the respondent says is being advocated to be visited upon white men is their disenfranchisement; which “could see a redistribution of (their) global assets to their rightful owners”. The appellant and the amici curiae argue that the blog does not amount to an advocacy of hatred and that the call for the disenfranchisemsnt of white men is hardly credible as a source of harm.

11.      In Islamic Unity Convention v Independent Broadcasting Authority and Others 2002 (4) SA 294 (CC), para 33, the court expressed itself as follows: “Section 16(2)(c) is directed  at what is commonly referred to as hate speech.  What is not protected by the Constitution is expression or speech that amounts to ‘advocacy of hatred’ that is based on one or other of the listed grounds, namely race, ethnicity, gender or religion and which amounts to ‘incitement to cause harm’”. Was there any real risk of any serious and significant harm to white men?  If so, what?  The call was for them to be disenfranchised; but how real was the risk of that materializing? In this respect, there is much to be said for the argument that the blog was nothing more than a spoof.

12.      To amount to hate speech, what is said should not only advocate hatred, but also be an incitement to cause harm. Both elements must exist. The test for the likely effect of the words is an objective one; that is, how an ordinary reasonable or intelligent reader would understand the words. In our view, the piece complained about does not pass the test.  Firstly, it is not an advocacy of hatred.  As Mr Budlender for the amici curiae pointed out, the piece is neither aggressive nor inflammatory; if anything, it is faux academic: measured and seeking to persuade through reasoning.  How persuasive the reasoning is, is of course another matter. As Mr Budlender again pointed put, freedom of expression is valuable as it enables us to discuss and test ideas, and discard those that are found wanting. There must therefore be room for robust debate. Secondly, it is hard to see it causing white men being disenfranchised.  That, in any case, would be constitutionally impossible in this country, given the immutable Constitutional Principles. This raises the question whether the piece is not, as submitted by Mr Budlender, indeed a faux-academic piece or a spoof. It could well be that the piece irritated or annoyed some people; but to classify it as a hate speech would be too huge a jump. Therefore we are afraid that, here too, we disagree with the Ombud.

13.      As we have ruled that there has not been any breach of 5.1 or 5.2, all other points raised by the respondent fall away; in particular, the need to consider whether or not there is some overarching public interest that justified the publication of the piece. This is because a speech which is neither discriminatory or amounts to hate speech requires no justification. In passing, we note that the Ombud erred in treating dealing with articles 5.1 and 5.2 as a compendium and not drawing a clear distinction between the two: discriminatory speech is not necessarily hate speech.

14.      For all the reasons given above the appeal is upheld, and the following Order is made:

The Ruling of the Press Ombud dated 22 April 2017 that the blog published by the Huffington Post South Africa on 13 April 2017 titled “Could it be time to deny white men the franchise?” violated articles 5.1 and 5.2 of the Press Council Code, is hereby set aside.

Dated this 18^th day of August 2017.

Judge B M Ngoepe, Chair, Appeals Panel

Ms S Smuts, Member, Press Representative

Mr B Gibson, Member, Public Representative

Ms J Sandison, Member, Press Representative

Ms C Mohlala, Member, Public Representative