Appeal Decision: David R Lewis vs. Independent Newspapers

DAVID ROBERT LEWIS                                                                     APPLICANT

VERSUS

[1]     Mr David Robert Lewis (“applicant”) seeks leave to appeal the Ruling of the Ombudsman dated 5 February 2016 dismissing applicant’s complaints against Independent Newspapers (“respondent”).

[2]     The complaints followed two articles, the second being a follow-up or a continuation, of the first.  The stories were reporting the views of one Plum who had been in Hitler’s army during the Second World War.  The applicant saw the articles as a “serialisation of a self-confessed member of the Hitler Youth”.  The applicant is a member of the Jewish Community living in the country.  He says the serialisation of Plum’s own experiences reduces the Jews and Jewish Community to mere “objects of history”, thereby infringing their dignity.  He also says that Plum is cast as “a mere accessory, an innocent victim caught up in historical events … beyond his control”, even though he had not objected to the events (the Holocaust and torture of Jews).

[3]     The applicant’s complaints were accurately captured in the Ombudsman’s Ruling:

“He says that these stories discriminated against him, since they represented:

·               an extraordinary serialisation of a self-confessed member of the Hitler Youth …;

·               a reiteration of the philosophy of Nazidom and its antecedents in German philosophy…..

·               a failure to moderate, publish, consult and include the narrative of Jews, … …

·               inappropriate content considering world events and especially the events of 13 November 2015; and

·               incitement of hatred against the Jewish community and other cultural, linguistic and religious communities … …

Lewis adds that the journalist did not get comment from the Jewish community.”

[4]    The respondent contended that the articles were not written to portray Plum in a positive light but to present a different view of the events of the war; from the perspective of a 11 year old, to 17; did not seek to romanticise or justify the Holocaust but to vent out the view of those German people forced to be part of the Nazi regime. Plum’s views were critical of the Nazi regime; his views were put in inverted commas as his own and that the interview with him was set up 5 days before the Paris massacre (an event applicant referred to apparently to show lack of sensitivity).  Applicant, who submitted two lengthy affidavits, also complained that Plum denigrated the Jewish Community by saying that “God is not on the side of the Jews, because Hitler killed them all” (more about this later) and by insinuating that they are not God’s chosen people.  Respondent argued that the above phrase is commonly used in both Jewish and Christian publications.

[5]     In his application for leave to appeal, the applicant argues that the Ombudsman has been wrong in his analysis of the matter; he attacks the Ruling in many respects.  On the other hand, the respondent supports the Ruling and the reasons behind it.  I have read the Ruling and its analysis of the complaints carefully.  I do not find fault with it.  I need not repeat what the Ombudsman has said. Here lies the fundamental difference between the applicant on the one hand, and the respondent and the Ombudsman on the other: applicant’s complaints are based on his own interpretation of the articles as well as his own apparently good knowledge of the history about the Second World War and the Holocaust.  They are not based on what actually appears in the articles.  For example, he says his “objection is in reference to the sentiment and nostalgic manner in which the subject of the articles (Mr Plum) views his training, education and interaction (as a teenager soldier).” The applicant infers nostalgia, whereas what Mr Plum said could equally be interpreted as a demonstration of genuinely inspired desire to reveal to all how the Nazi’s went so far as to use children like him.  One would therefore need a huge jump to come to the kind of inference the applicant makes from the articles.  There is therefore much to be said for respondent’s argument that the applicant “has thus exaggerated the effect of the articles on the ordinary reader”.  Only a reader like the applicant with a deep knowledge of the relevant history can place onto the articles the kind of interpretation he does; but not an average reader, for whom the articles were meant.  The interpretation applicant places on Plum’s statement that God does not like Jews because He let Hitler kill them, does not amount to denigration of the Jews; it is the kind of lament a bereaved parent would make, to ask God, “if you loved me, why did you let my child die!” The things applicant is complaining about, are really not in the articles, but are a product of his own interpretation, based on his special knowledge of the relevant history. As the Ombudsman says, there is for example no reference in the articles to Baerenfaenger, or other issues alluded to by the applicant.  The articles were a presentation of Mr Plum’s views, which were unique; moreover, they were presented as his own and not of the respondent. I too do not agree with applicant’s interpretation of the texts and his conclusions.

[6]     For the above reasons as well as those given by the Ombudsman, I am of the view that the applicant has no reasonable prospects of success before the Appeals Committee of the Press Council.  The application is therefore turned down.

Dated this 28^th day of March 2016

Judge B M Ngoepe, Chair, Appeals Panel