Appeal Hearing Decision: Daily Voice vs Shaun Westley

DAILY VOICE                                                                                               APPELLANT

AND

[1]     Daily Voice (“appellant”) was given leave to appeal the Ruling of the Press Ombud dated 24 July 2016, in favour of Mr Shaun Westely (“respondent”). The complaint raised by the respondent was the result of a heading to an article by the appellant in its edition of 7 April 2016.  The headline read: “MAAK DIE MOFFIE VREK”.  The content of the article was a report on an attack by some people on a person simply because the person was gay.  It was an attack motivated by homophobia.

[2]     The respondent complained about the use of the word “MOFFIE” but not about the content of the story; to quote one of his statements: “I wish to remind everyone that the actual contents of the article are not in question here and the complaint rests on whether it is fair to use derogatory slang as a massive headline … and whether that is necessary to accomplish fair reporting”.  In his Ruling, the Ombud summarized the complaint about the headline as follows:

?        “was ‘using the bigoted slur the survivor endured during the attack’ (with reference to the word ‘moffie’);

?    merely perpetuated the dehumanization of the gay community at a time when homosexuality is still a crime in more than 30 African states; and

?    might have stimulated violence at the expense of a minority, bordering on hate speech”

It is therefore clear that, as I have said, the complaint is only about the headline; in particular against the use of the word “moffie”.

[3]    The Ombud upheld the complaint, holding that the appellant violated articles 5.1 and 5.2 of the Press Code.  He ordered the appellant to apologize to the public and to the respondent.

[4]     Again before us when the appeal was heard, there was no complaint against the content of the story.  The arguments centred on whether or not the word “moffie’ should have been used in the headline; there was no other complaint against the headline.  Reliance on articles 5.1 and 5.2 is misconceived. Headlines are governed by article 10.1 of the Code. Our hatred of homophobia, however understandable, should not cloud our judgment.  This is in fact not a difficult matter at all; the appeal must succeed, and the complaint be dismissed simply for the following reasons:

4.1    The headline quotes word for word what was said by the attackers during the attack, as told by the victim;

4.2    The words are in inverted commas to show that they do not emanate from the appellant;

4.3    The headline is immediately contextualised by a sub-headline which reads: “Gino is nearly beaten to death by two teens ‘because I’m gay’”

4.4    The headline is not only a “reasonable reflection of the contents of the report” as required by article 10.1; it goes beyond that as it is actually a verbatim reproduction of a part of the contents.

[5]     Given the total compliance of the heading with article 10.1 as indicated in 4.4 above, which specifically governs headlines, reliance on 5.1 and 5.2 in the present case creates an unnecessary contradiction between article 10.1 on the one hand, and articles 5.1 and 5.2 on the other.  Doing so is not justified as the headline reproduces verbatim and in quotation marks what was actually said (as given by the victim) during the attack, followed immediately by the contextualising sub-headline.

[6]     Finally, it is a presumptuous and thus seriously flawed argument to say that the heading incites homophobia.  Such argument overlooks the points made in 4.1, 4.2 and very importantly, 4.3.  Given all these, a reader is likely to read from the headline a determined call to help fight homophobia by exposing it in ugliness (see also the opinion piece of one Xolisa Tshongolo referred to below). Indeed, this was appellant’s argument; which was a fulfilment of the victim’s desire not only to tell about the attack, but also the derogatory words he was subjected to, thereby exposing in full the ugliness of the homophobia perpetrated on him; perpetrated not only by deed of action (attack), but also by word of mouth (verbal abuse). Of course, the respondent could have chosen not to use the word “moffie” in the headline; but there was no obligation on it to hide the truth, simply because the truth was ugly.  There was no obligation to sugar-coat the word. For the reasons given in paragraphs 4.1 to 4.4, the examples cited by the respondent, such as with reference to the use of the “k*****” word, are of no application and likewise merely cloud judgment by appealing to emotions. Again, in any event, if in an attack the full word “kaffir” was used, why would it not be so reported, provided it is in quotation marks? In this respect, it is interesting to read the opinion of one reader of the Sunday Times (16 October 2016), one Xolisa Tshongolo of Cape Town. The headline to his piece: “Don’t sweep offensive words under the carpet”. He goes on: “I get furious whenever I see ‘kaffir’ written as ‘k*****’ or as the ‘K word’”. After bemoaning the word’s insult and castigating those who coined the word and made it derogatory, he continues: “The term will continue to exist in our vocabulary, no matter who says what…” He went further: “If we continue to allow this nonsense of referring to the word ‘k*****’ or the ‘K word’ our generation will never know the truth about it…….We can never correct the injustices of the past (and one may add, of the present), by hiding them under the carpet. We need to talk about them and correct our misunderstandings so that we can be a healthy-minded society in our lifetime in this country”. True, Mr Tshongolo was speaking from a certain perspective; but this shows that you cannot prohibit the use of the word all the time; under certain circumstances, see paragraphs 4.1 to 4.4 above, the full word may indeed be used. Secondly, what he says demonstrates the point that at least some readers like him will be able to realize that however ugly the word is, it was used to galvanize the fight against homophobia. If opinions differ, so be it. It is noteworthy that amongst respondent’s documents there was a copy of an article with the same headline “Kill the Moffie” to which there was no objection. As to whether a word is harmful or not, would depend on the circumstances and context.

[7]    Finally, we need to emphasize that, in considering the matter, there is no relevant clause of the Code, or evidence, we failed to consider; but we did not wish to burden the Decision with unnecessary details. We therefore do not subscribe to the view, also often repeated in the Minority decision, that we failed to give consideration to for example articles 5.1 and 5.2 of the Code. Equally. It is incorrect that we justify the use of the word “moffie” simply because of quotation marks; that amounts to a serious denution of the inter alia  the other considerations set out so clearly in paragraph above; the same applies to an assertion that we resolved the matter solely with reference to compliance with article 10.1.  We see the fundamental difference between us and the Minority Decision to be the following: Our view is that, in light of paragraphs 4.1 to 4.4, the headline is not harmful or inciting violence against gay people; on the contrary, it seeks to galvanize the fight against homophobia by exposing it as told by the victim, and that a reader would understand it that way.  The Minority Decision says the opposite; it says the heading is harmful as it incites violence against gay people. Save to say that in our view the Minority Decision understates, misrepresents and misunderstands the reasons and reasoning of the Majority Decision in several respects, we do not wish to deal with it herein as that would serve no purpose.

[8]     The appeal is therefore upheld, and the following Order is made:

The Ruling by the Press Ombud dated 24 July 2016 is set aside, and the complaint by Mr Shaun Westely against the Daily Voice is hereby dismissed.

Dated this 24th day of October 2016

Judge B M Ngoepe, Chair, Appeals Panel

Mr N Woudberg, Member, Public Representative

(A minority Decision by Mr M Sanglay, Member, Media Representative, is attached).