Joseph Winer vs GroundUp
Fri, Nov 29, 2019
Finding complaint 4342
Date of article: 15 March 2019
Headline: Quack claims about oxygen treatment are dangerous
Author: Natasha Bolognesi
This ruling is based on a written complaint from Mr Joseph Winer, managing director of Oxygenate, a written response from Mr Nathan Geffen, editor of GroundUp, consultations with Mr Winer, Mr Geffen as well as with Mr George Claassen, a lecturer in science journalism at Stellenbosch University and internal ombudsman for Media 24, who is acting as an advocate for Mr Geffen in this matter, brief consultations with another scientist, as well as research and reading of various stories about the ethics of science journalism, and about hyperbaric oxygen therapy, including the FDA guidelines.
Mr Winer complains about a story published in the online publication GroundUp under the headline, “Quack claims about oxygen treatment are dangerous.”
Mr Winer complains that the article misrepresents some of the treatments his company offers. His company’s oxygen chambers are “fully certified and registered”, it does not claim to “cure” certain conditions but offers it as an auxiliary form of treatment, there are safety precautions, and his chambers reach the same pressure as the recommended minimum pressure used by the Underwater and Hyperbaric Medicine Society (UHMS).
He also complains that although his company was mentioned specifically in a general article about Hyperbaric Oxygen Therapy, he was not offered a right of reply.
His complaint is in terms of Clauses 1.1 and 1.8 of the Press Code:
- The media shall take care to report news truthfully, accurately and fairly.
1.8 The media shall seek the views of the subject of critical reportage in advance of publication; provided that this need not be done where the institution has reasonable grounds for believing that by doing so it would be prevented from reporting; where evidence might be destroyed or sources intimidated; or because it would be impracticable to do so in the circumstances of the publication. Reasonable time should be afforded the subject for a response. If the media are unable to obtain such comment, this shall be reported.
- The text
1.1 The headline of the piece is “Quacks claims about oxygen treatment are dangerous.” The strap says, “Charlatans exploit patients for financial gain, say doctors.”
1.2 The intro says: “If you go scuba-diving and come up to the surface too fast, you might need Hyperbaric Oxygen Therapy. But, experts warn, it can’t treat cancer, stroke, Alzheimer’s disease, autism, or arthritis as some quack outfits are claiming.”
1.3 It goes on to describe what HBOT is: a treatment that generally is used to treat decompression sickness (the “bends”) in underwater divers. It uses “high concentrations of oxygen at high pressure.” And has been “approved” for use in 14 conditions that include decompression sickness, gas gangrene (caused by a bacterial infection), “necrotizing soft tissue wounds” (such as diabetic foot wounds), and thermal wounds.
1.4 It then adds: “But practitioners of mild hyperbaric oxygen therapy (mHBOT) are fraudulently cashing in on the science that supports HBOT.”
It quotes Dr Cecilia Roberts of the Southern Africa Underwater and Hyperbaric Medical Association (SAUHUMA), saying the association was concerned about the “false hope” that mHBOT gives rise to as “well as the threat to the scientific field of Hyperbaric Medicine.”
1.5 It describes the treatment: patients inhale 100% medical oxygen at high pressure – twice the atmospheric pressure at sea level – so increasing the amount of oxygen in the blood. Roberts says this has “direct and indirect therapeutic medical effects which promote the healing process” but only for conditions for which this is indicated.
1.6 The article also quotes Dr Jack Meintjes of the Underwater and Hyperbaric Medicine programmes at Stellenbosch University, saying “misinformation is being fed to the public by mHBOT opportunists”. He says administering “low-pressure” HBOT “is like moving someone from Johannesburg down to Cape Town then claiming you are treating them”. He says this is not true; one has to have a certain level of “the medicine” for it to have an effect “and that will only be possible if the pressure is high enough to dissolve more oxygen in the plasma. But the quacks quote the evidence for proven HBOT for their mHBOT saying, ‘Look, here is the evidence for HBOT, come to us and we will treat you.”
1.7 The article reports that the treatment is usually administered in an inflatable soft chamber with air or air mixed with added oxygen. It reports the chambers, which are prohibited by the US Food and Drug Administration for use other than in acute mountain sickness, often do not comply with SA safety standards. The fabric chambers are not designed to be used with 100% oxygen, there is an increased fire risk with high concentrations of oxygen and certain cosmetics could be combustible with the high oxygen content.
1.8 Meintjes is further quoted as saying some mHBOT practitioners “do not even have a fire extinguisher on site, so how can they advise on the correct fire extinguishing systems when they sell these chambers to the public.”
Another risk is inadvertent deflation of the soft chamber in the event of an “unexpected power outage” which can cause “serious injury” to eardrums and lungs.
The article then reports that in spite of these warnings, uses of mHBOT devices is on the rise.
1.9 The article refers to the company O2xygenate and says it “claims mHBOT can be used for a string of indications” including cancer, stroke, Parkinson’s disease, Alzheimer’s, autism, arthritis, multiple sclerosis and cerebral palsy, among others – none of which is approved for treatment with HBOT and mHBOT.” It also advertises treatment “for diabetic ulcers and burns – conditions indicated as treatable with HBOT only.” The treatment costs range from R500 an hour to R8000 for 20 treatments; the company also sells soft hyperbaric chambers for home use.
It mentions another company SpecialKids that advertises “mild hyperbaric treatment” for off-label conditions in children.
1.10 It cites the case of a former chiropractor in Australia, Malcolm Hooper who owned a hyperbaric treatment clinic and who is standing trial after the death of a former client who was being treated for multiple sclerosis.
1.11 It quotes Dr Meintjes again saying “Our colleagues associate us with all this quackery and they won’t refer patients to us here at the Tygerberg HBOT department. Instead, despite the evidence for the successful treatment of soft-tissue and bone damage following radiation, or certain diabetic foot wounds with HBOT, two or three amputations are done each day” at Tygerberg.
1.12 It quotes SAUHMA’s Dr Gregory Weir as saying modern hyperbaric oxygen therapy “is part of mainstream evidence-based medicine”. It notes he has lodged a complaint with the SA Health Products Regulatory Authority about the misuse of mHBOT.
1.13 The article says the matter has been referred to the deputy director of medical devices at SAHPRA (the Southern African Underwater and Hyperbaric Medical Association as at the authority. Weir is quoted as saying: “SAHPRA should be made aware of the false claims made by the charlatans who exploit patients for financial gain.”
- The arguments
2.1 Mr Joseph Winer, the managing director of Oxygenate, says he was never contacted for comment although his company was specifically mentioned in the article.
2.2 As a result, there are some factual inaccuracies in the article:
The company has never claimed mHBOT can treat cancer, stroke, Alzheimer’s disease, autism or arthritis. All hyperbaric therapy is used as an “auxiliary form” of treatment. It did not “cure” anything itself. He also cites other medical evidence, specifically by Dr Paul Harch ‘the father” of hyperbaric medicine who has established that it can be successfully used in the treatment of neurological conditions
2.3 Replying to Dr Roberts’ statement quoted in the article he said Oxygenate had a specialized chamber “fully certified and registered with all the relevant and competent parties” that worked exactly how Dr Roberts prescribes. “However, it is illogical and physically impossible to say that the system works in the body one way if it is a condition that is FDA approved and works another way if the condition is not approved by the FDA. Hyperoxia is a physical condition based on physical laws. This is the same as saying gravity works one way if Nasa approves it or not.”
2.4 He argues that Dr Meintjes’ quote that refers to “misinformation being fed to the public by mHBOT opportunists”, says: “If you administer low-pressure HBOT, it is like moving someone from Johannesburg to Cape Town and then claiming you are treating them…You have to have a certain level of the medicine…and that will only be possible if the pressure is high enough to dissolve more oxygen in the plasma. But the quacks quote the evidence for proven HBOT for their mHBOT…” Mr Winer says this implies that Oxygenate chambers “do not have a certain level of medicine”. Using the Undersea and Hyperbaric Medical Society measure that says that for clinical purposes the pressure must equal 1.4 ATA (‘or ‘bars’) while breathing 100% oxygen”, Mr Winer says the company’s chambers do reach this pressure. “The article implies we don’t”.
2.5 He also contests the point in the article that the FDA prohibits the use of these chambers for anything other than acute mountain sickness and that they “often” do not comply with SA safety regulations. He argues: “The FDA does not prohibit anything. What it does is considers some of the uses of ‘Off label’. This does not mean it is prohibited or illegal. Extensive legal cases exist that determine the legality and ethics of using any medicine or device for off-label use.”
2.6 On the safety issues, Mr Winer argues that the company has taken precautions against inadvertent deflation of a soft chamber in the event of a power outage: “Our chambers are designed in such a way that if this were to happen, it would still be inflated for over 12 hours.”
2.7 He argues the article specifically mentions his company, Oxygenate “and does not write the article in general”. As there are other similar companies that exist in South Africa, which it does not mention, “this shows the biased nature of the article intended to discredit our company only.”
2.8 He answers the article’s point about the former Australian chiropractor, Malcolm Hooper, facing trial for culpable homicide after the death of a client undergoing treatment for multiple sclerosis at his facility, by saying that it did not say in the newspaper report whether the damage was caused in a medium-pressure or high-pressure chamber. Moreover, being on trial “does not mean he was convicted”.
He argues that the position of SAHUMA is “outdated...(T)he advancement of technology means that the therapy is now more accessible and affordable to patients.”
2.9 Mr Winer also attached additional documents to his argument including:
- From the Hyperbaric Healing Institute on “Off-Label” hyperbaric therapy which states that the “International Hyperbaric Medical Association supports the use of hyperbaric oxygen “under prescription and oversight by a physician for any indication where a physician for any indication where a physician finds the condition is related to a hypoxic event…”
- One from a website called Oceanside Hyperbaric which lists conditions for which HBOT is approved (by the UHMS0 and another listed under “Investigational Conditions
- A position statement from the International Hyperbaric Medical Association on the “off-label” use of HBOT
- A document on what “off-label” means in terms of FDA regulations.
He says his company “has full CE and other certifications...”
2.10 In its reply, GroundUp editor, Nathan Geffen, described the complaint of “immense importance”.
2.11 He also invokes the support of George Claassen, News24 ombudsman and science journalism lecturer at Stellenbosch University, who later joined this argument and provided me with copious literature on science journalism.
2.12 The publication’s argument – and further arguments as articulated by Mr Claassen - was that there is a fundamental principle involved in not allowing, as Mr Geffen puts it, “the complainant to comment further.” Mr Geffen cites a similar case ruled on by my predecessor, Johan Retief, in June 2018, Daleen Totten vs GroundUp, where the Ombud ruled in the publication’s favour. Mr Geffen describes the article as being about a proprietor “making unverified claims about medical products”.
2.13 Mr Geffen in his first reply – there was another – rejects the charge that there were factual inaccuracies in the story and asks that this be removed from the complaint.
2.14 However, he adds “this is the most important complaint GroundUp has dealt with. Frankly, an adverse ruling will affect the future of reporting on science and medicine, not just for GroundUp but for the SA media generally, and I am not willing to compromise in dealing with it, because I am convinced our report was both accurate and fair and that quality reporting of science-based medicine cannot happen if the complainant’s argument prevails.”
2.15 In a more comprehensive response, Mr Geffen writes that the article “describes untested and potentially dangerous claims being made by purveyors of mild hyperbaric oxygen therapy (mHBOT). …These claims are unproven and almost certainly false. In fact, the Oxygenate website lists specific indications for which medical evidence indicates hyperbaric oxygen therapy should not be used.”
2.16 He confirms the article was based on the opinions of Dr Cecilia Roberts, president of the Southern African Underwater and Hyperbaric Association (SAUHUMA), Dr Jack Meintjes, Programme Co-ordinator of the Underwater and Hyperbaric Medicine programmes at Stellenbosch University, and Dr Gregory Weir, former president of SAUHMA, all experts in this field. The reporter, Ms Bolognesi “also relied on documents published by reputable medical and scientific institutions with expertise in the field of hyperbaric medicine such as the US Food and Drug Administration (FDA), the US-based Underwater and Hyperbaric Medical Society (UHMS), and SAUHMA, “which is recognized as a Special Interest Group by the SA Medical Association.
2.17 The article refers to Oxygenate in two paragraphs, saying: “The South African company O2xygenate claims mHBOT can be used for a string of indications including cancer, stroke, Parkinson’s disease, Alzheimer’s disease, autism,
arthritis, multiple sclerosis and cerebral palsy amongst others – none of which is approved for treatment with HBOT or mHBOT. O2xygenate also advertises its services for diabetic ulcers and burns – conditions indicated as treatable with HBOT only. Treatment costs range from R500 an hour to R8,000 for 20 treatments. The company also sells soft hyperbaric chambers for home use.
The company SpecialKids advertises mild hyperbaric treatment through O2xygenate for off-label conditions in children. Its website provides a direct link to the O2xygenate website.”
2.18 Mr Geffen argues that Oxygenate’s argument that it did not get a chance to reply in the article is “a misunderstanding of the Press Code”. This is because its position “is presented in the article”. He argues that quoting its claims from its website, as well as the prices it charges, “are accurately described.”
2.19 The company may be unhappy that the article, in describing its claims, says that mHBOT is “not approved” for any of these treatments, but this “is an unequivocally true statement. It would have been irresponsible for GroundUp not to have pointed this out.”
2.20 In fact it had “no duty” to consult the company about the article’s description of its claims “as they were clearly published and unequivocally made.”
“The complainant appears to believe that GroundUp had a duty to get Oxygenate’s views in response to Dr Meintjes, Dr Roberts, and Dr Weir. But this is incorrect. For one thing, [they] are experts in the field of hyperbaric medicine, and their views present the current state of scientific knowledge.”
2.21 It is a “common misconception about science reporting” that other views should be canvassed to make the article more “balanced”. Mr Geffen quotes an article by Christopher E Clarke to make this point: “By adhering to a point-counterpoint format—in which two particularly well-known sides are afforded relatively equal attention—journalists can give the impression of uncertainty where there is none, elevate a fringe group to a high-profile status, or suggest that opposing perspectives are equally well-supported by evidence.”
This article goes on to quote Corbet and Durfee (2004, p142) saying “it is problematic to introduce dissent into an area where science largely agrees, particularly for readers unable to evaluate where the balance of the evidence lies."
2.22 Quoting another source, Boyce Rensberger, the former head of MIT’s Knight Program of Science Journalism, he cites the following: “Science demands evidence, and some forms of evidence are worth more than others are …
Balanced coverage of science does not mean giving equal weight to both sides of an
argument. It means apportioning weight according to the balance of evidence.”
2.23 Oxygenate’s views on hyperbaric medicine are “fringe” and “contradicted by the current scientific consensus. We have no intention of giving it weight on the GroundUp site anymore than we would give weight to fringe views that dispute that HIV causes AIDS, that there is anthropogenic climate change or that all species, including humans, have evolved through natural selection. On the contrary, our news article will continue to debunk such discredited positions.”
2.24 He says GroundUp will not “present false balance” by giving weight to proponents of “AIDS denialism, climate change denialism, intelligent design or purveyors of unsupported medical claims such as hyperbaric medicine being an effective treatment for cancer.”
He cites the case of the Ombudsman’s ruling in Totten vs GroundUp  as bearing “important similarities” to this complaint, which was dismissed. I will refer to this later in the “Analysis” section
2.25 On Mr Winer’s claims of inaccuracy, Mr Geffen expresses a “reluctance” to address these claims, as the fact that Oxygenate sells mHBOT “does not confer it expertise”. On the contrary, the experts consulted by GroundUp show the company makes “unsupported claims about hyperbaric medicine.”
2.26 On Mr Winer’s averment that his company has never claimed mHBOT as a “treatment” for various conditions like cancer, strokes etc, but as an “auxiliary form of treatment”, Mr Geffen replies: “Whether hyperbaric therapy is claimed to be an auxiliary or complementary treatment…it is still a form of treatment.”
He also takes issue with Mr Winer’s claim in response to Dr Roberts (as quoted) that the treatment “in a special chamber where patients inhale 100% medical oxygen at high pressure” has “direct and indirect therapeutic medical effects which promote the healing process” but applies only to the conditions for which it is indicated that Oxygenate has a specialised chamber “fully certified and registered…that provides exactly what the doctor mentions.” Mr Geffen responds that Mr Winer is misreading the phrase: “but this applies only to the conditions for which it is indicated. It is the therapeutic medical effects, which promote the healing process, that only “apply to the conditions indicated. They have no known effect on cancer etc.” (emphasis in original)
2.27 On Mr Winer’s claim that the article implies that Oxygenate chambers do not have a “certain level of medicine” and his statement that their chambers have a pressure that reaches 1.4 “atmospheres” or “bars” (which the article implies they don’t), Mr Geffen responds: “Here the complainant has taken issue not with GroundUp’s words but those of a recognised expert on hyperbaric medicine, Dr Meintjes, who in any case was not referring specifically to Oxygenate. As a result, we see no reason to give weight to the complainant’s views. As to the pressure reached in the complainant’s specific chamber, our article is silent on this.”
2.28 The complainant’s claim that “the FDA does not prohibit anything” and “extensive legal cases exist that determine the legality and ethics of using any medicine or device for off-label use”: GroundUp responds there is a “complex debate” about the powers of the FDA: “We are not aware that the complainant has any expertise such that its views should be given weight in this debate. Nevertheless, the UHMS explicitly states that the FDA has the power to prohibit the use of low-pressure hyperbaric chambers”.
2.29 On the complainant’s claim that if (a soft chamber) would inadvertently deflate as in the event of an unexpected power shortage, its chambers “are designed in such a way that if this was to happen it would still be inflated for over 12 hours.” GroundUp responds the article “is silent on the complainant’s chambers. Also, this does not appear to be an allegation of inaccuracy.”
2.30 On the complainant’s assertion that the article “specifically mentions Oxygenate and does not write the article in general”, Mr Geffen replies that ‘the article is intended to warn the public of false claims about mHBOT, and its dangers. The Press Code is not breached by using one company as an example. The complainant’s website provided us with a particularly instructive example of the kinds of unproven claims being made. But it’s conceivable that in future articles we’ll highlight the claims of other companies.”
2.31 On the complainant’s argument that Malcolm Hooper, the Australian standing trial GroundUp responds that the example refers to the “unsafe practice of hyperbaric therapy when performed by unqualified medical practitioners…Furthermore the article did not say Dr Hooper had been convicted.”
2.32 On the complainant’s argument that “the position of SAHUMA is outdated. The advancement of technology means that the therapy is now more accessible and affordable to patients,”, GroundUp responds: “this is a very bold and unsupported statement and frankly the complainant’s views on this has no weight.”
2.33 On the claim that Oxygenate has “full CE and other certifications,” GroundUp responds it is “a vague statement and it is unclear how Oxygenate having any certificate proves or disproves anything in the article.”
2.34 The article is “accurate and fair. The complaint has no merit and should be dismissed in its entirety.”
2.35 GroundUp, like the complainant, also attaches various annexures to its argument including:
- From the FDA webpage on hyperbaric medicine that states “hyperbaric oxygen therapy has not been clinically proven to cure or be effective in the treatment of cancer, autism, or diabetes….(it) has not been proven to be the kind of universal treatment it has been touted to be on some Internet sites.” It lists the conditions that its effectiveness has not been established for including AIDS/HIV, Alzheimer’s, Parkinson’s, Stroke, Depression. It warns that patients receiving HBOT are at risk of suffering injuries from mild (sinus pain, ear pressure) to serious (paralysis, air embolism). There is also a risk of fire.
- A UHMS statement that says that “low-pressure, fabric hyperbaric chambers (operating at less than 1.4ATA) and marketed for sports and alternative medicine have an FDA clearance for Acute Mountain sickness only and are designed to be compressed only with air...” The FDA prohibits the use of these devices with supplemental oxygen.” Soft chambers are approved for acute mountain sickness only.
- Comments by Dr Weir on hyperbaric therapy and autism: “unfortunately the scientific evidence to support the use of hyperbaric oxygen therapy for autism is so poor it cannot be recommended” Most reports on successful outcomes associated the hyperbaric oxygen therapy have come from “small case series, which is regarded as anecdotal evidence”. He states there is a “possibility to explore it as a “trial therapy”, which could take place under various conditions including consent from both parents, the paediatric neurologist and hyperbaric physician, grommets to avoid damage to ears, formal clinic evidence by neurologists, 5 sessions of the therapy and assessment by neurologists after each treatment. “Only if there is objective evidence of improvement would more treatment sessions be considered.” He says he has not “had a single neurologist who [has] agreed to participate in such a trial of therapy.”
- Comment on the complaints from Dr Meintijes: the salient points are that there is evidence that for autism spectrum disorders, multiple sclerosis, cerebral palsy etc there is evidence that the therapy should NOT be used. He adds that “the number of indications for HBOT is constantly changing as more and more evidence comes in from studies that are conducted”, but warns that so far, the evidence points to the fact that HBOT should not be used for a number of conditions
- Further arguments
3.1 In response to Mr Geffen, Mr Winer argues that as Mr Geffen himself admits, he is not an expert in Hyperbaric Oxygen Therapy. So, he asks, how is he so certain that that the arguments Mr Winer advances are untrue? He believes the article is biased and “directed by” SAHUMA and the doctors quoted. “The article in itself was not an investigation piece but is what seems an article dictated by SAHUMA and the experts to discredit our company.”
He has attached a letter he says is written by Dr Weir to him in response to a query about treatment for autism that says, in part: “Autism is not an internationally accepted indication for hyperbaric oxygen therapy. Because of that there are significant medico-legal implications when treating a person with autism. We recommend a formal consultation with a Paediatric Neurologist. If the Neurologist agrees to the trial of therapy, 5 sessions of hyperbaric oxygen therapy is given, followed by another assessment by the Neurologist. If there is objective proof of clinical improvement, further sessions can be done thereafter.”
3.2 He says GroundUp consulted “only three” experts; there are others such as Dr Paul Harch, a clinical professor at Louisiana State University, who has used hyperbaric oxygen therapy, according to one newspaper report I sourced, for reversing brain damage in a toddler who had suffered a near drowning.
3.3 He also quotes findings of the Ethics Task Force of the Undersea and Hyperbaric Medical Society in 1998. “The Ethics Task Force found that the off-label use of HBOT was entirely ethical… Furthermore, the legality of treating off-label was established as an important part of the practice of medicine in the USA 26 years ago in United States v. Evers, 453 F. Supp. 1141, 1149 (M.D. Ala. 1978)." For this he cites as a source the International Hyperbaric Medical Association on off-label use of the therapy.
3.4 He also argues that “off-label” use does not mean the therapy is prohibited by the FDA; moreover the treatment his company offers is not prohibited in South Africa.
In an phone consultation, he said his firm had treated the well-known burns victim, toddler Pippi Kruger, who was badly injured in a gas explosion in 2012, after she had had extensive skin grafts. I found a news reference to this, although it does not say where she was treated.
3.5 GroundUp on the other hand was reluctant to debate the merits of the complaint. Mr Geffen asked Mr George Claassen, the internal ombud for News24 and a lecturer in science journalism at Stellenbosch University, to assist them in its submissions.
In both his submission and a phone conversation with me he made two key points:
One was that the publication did not need to go to Mr Winer for his views as it had already conveyed the key messages on his website; the other was that as this was a science article, a fundamental principle was that “we trying to do without the pretense that quacks have the right to come kind of equal say….The article quotes several experts about hyperbaric treatment…”
The main argument made by Mr Claassen, was that international practice in science journalism no longer recognized the right of “audi alterem partem” when dealing with claims made by “science denialists, pseudoscientists and quacks.”
I will go into this is more detail in the “Analysis” section below.
4.1 There is an unfortunate history to this complaint. Mr Geffen complained that there were serious delays in communicating with him about it.
I have checked the timeline of emails and it appeared the Public Advocate sent him the complaint a few days after it was received on April 8. Three days later he asked him again for a response and again on the 30 April and on 9 May and 17 May. He then called the office number on the 23rd May and left a message, and followed up with an email that s “I am sure you have overlooked this matter.”
The email address appears to be correct, but for some reason, Mr Geffen did not seem to receive the emails until the 28 May. He wrote to the Public Advocate Mr Latakgomo asking the complainant to be “more precise”, and the latter then wrote to Mr Winer.
4.2 The process was complicated by the fact that it appeared that Mr Winer’s firm initially indicated it wanted to pursue legal action against GroundUp. By the time Mr Latakgomo got clarity on this – as the adjudication process cannot run in parallel with legal proceedings - it was already the end of May. Mr Geffen filed a response in early June.
4.3 On this matter, although there were details that Mr Winer mentioned, such as the atmospheric pressure reached in Oxygenate’s chambers, or the safety measures it has, Mr Geffen is correct: the GroundUp article did not express itself on this.
On whether mHBOT can be used as an auxiliary treatment for autism, cancer etc, I am inclined to believe that the expert opinion quoted in the GroundUp article is a better guide than claims made on a website.
On the right to reply
4.4 However, a key element of the complaint was that Mr Winer was denied the right to reply as stipulated in the Press Code as a “subject of critical reportage”.
This was an important and fundamental argument of both GroundUp and its advocate, Mr Claassen.
Mr Claassen sent me a substantial amount of literature on science reporting (as indeed did Mr Winer on hyperbaric oxygen therapy and the FDA).
Mr Claassen describes himself as “a very experienced and award-winning science journalist, a lecturer in science communication, as well as a media ombudsman/public editor since 2003 and board member of the international Organization of Newsombudsmen & Standards Editors’ (ONO).”
He cites a column he authored shortly after the World Ombudsman’s conference (ONO),  where he argues that “science journalism is a unique facet of reporting, where balancing a story is important to reflect the uncertainty of scientific findings, but that in the overwhelming number of cases the right to reply does not extend to accommodate the view of science denialists and quacks.”
4.5 He also cites various international broadcasters, such as the BBC and the Australian Broadcasting Company, as “being united in the modus operandi”.
“Complaints by charlatans and quacks (and that is exactly what O2xygenate is) that they should have the right to reply when they are exposed by dedicated scientists and science journalists, should not be tolerated, a general agreement these very senior media ethicists reached at the conference. This follows decisions by various news organisations to apply the principle emphasised by the former head of the Massachusetts Institute of Technology's Knight Science Journalism Fellowship Programme, Boyce Rensberger: "Science demands evidence, and some forms of evidence are worth more than others are… Balanced coverage of science does not mean giving equal weight to both sides of an argument. It means apportioning weight according to the balance of evidence .” 
4.6 He says the reporter, Natasha Bolognesi, whom he describes as a “respected and highly regarded science journalist”, with a Masters degree in science journalism from Stellenbosch University, respected the audi alterem partem principle by quoting from Oxygenate’s website and citing its claims about treatment.
4.7 Mr Claassen quotes a long list of articles on science journalism which oppose giving equal weight to non-scientific views in the coverage of science. He also describes Oxygenate’s claims as “ludicrous and in fact outrageously dangerous, not based on any peer reviewed scientific evidence.”
4.8 Mr Claassen sent me several other articles on science reporting. One, by Trevor Jackson, published under the headline, “When balance is bias”, and with the strap “Sometimes the evidence is strong enough for the media to come down on one side of the debate”, was convincing.
The article began with an anecdote about how in a 2010 BBC television series called “The Wonders of the Solar System, the physicist Brian Cox made a remark that offended some who believed in astrology: “Despite the fact that astrology is a load of
rubbish, Jupiter can in fact have a profound influence on our planet. And it’s through a force . . . gravity.”  The BBC received a number of complaints including one from a viewer who that Cox made his comment without an “alternative opinion
being allowed.” The article goes on to cite other examples – the vaccine against Measles, Mumps and Rubella (MMR), climate change, the fact that smoking causes lung cancer –“risked giving the impression in their science reporting that there were two equal sides to a story when clearly there were not.”
The article reports that the BBC had commissioned Steve Jones, emeritus professor of human genetics University College, London “to review the impartiality an accuracy of the BBC’s coverage of science.” He found that ‘due impartiality’ “had a
distorting effect, creating a sense of equivalence where there was none, and privileging maverick and dissident views so that they appeared as valid as established scientific fact.”
4.9 This has now become policy in many major media houses around the world.
However, in all the case studies provided by Mr Claassen, I could not find an equivalent of this particular case where a company or individual was specifically named. So while the policy works admirably in the general debates about evolution (even though there has been a robust scientific debate about that since Darwin’s seminal thesis), climate change, the origins of the solar system, or health issues such as the MMR vaccination, it becomes harder to understand how to apply the Press Code when particular individuals or companies are named.
4.10 I asked Mr Claassen this question by email: “Who makes the call about who is entitled to a right of reply and who is not?” This is in cases where individuals or companies are specifically mentioned in an article.
Mr Claassen replied: “Science makes the call. Although there may be debate in science about certain issues (how does evolution take place, how fast etc; the measures of the pace of climate change, the factors leading to it etc.,) there are also very clear and overwhelming evidence what the scientific consensus is on most issues. We know that climatologists are right about climate change, we know the denialists are wrong, the evidence is overwhelming against the denialists. We know that the anti-vaccination propagators are wrong, the science is overwhelming that vaccinations do not lead to autism, the evidence is there….Why give these people then a right to reply? If you apply that principle, why don't you act on behalf of creationists who complain that evolution is not true when we write about it and when we don't give them a right to reply that the Earth is 4,57 billion years old and not 6000 years?”
4.11 But as emphatic as this is, it still does not address Mr Winer’s specific complaint. The article cites “quack outfits”, “fraudulently cashing in on the science” and lists the risks of using these “outfits” including the fact that high levels of oxygen, combined with certain other products, can increase the risk of combustibility and that many such outfits do not even have fire extinguishers.
Mr Winer told me he does have fire extinguishers on his premises, for instance.
He also told me that the atmospheric pressure in his chambers does reach the stipulated 1.4 ATA (or bars), to bring it above sea level pressure. “The article implies that we don’t,” he said.
The article may have been a fair, general warning to the public on health matters but one company, which as far as I could establish operates legally in South Africa, was singled out.
4.12 I consulted a doctor and scientist (neither of whom are particular experts in this field, admittedly) and both would agree that the “off-label” use of hyperbaric oxygen therapy is suspect; they also agree that for the media to give voice to climate change denialists, anti-vaccers, as they are known, or creationists, mislead the public.
4.13 Mr Geffen also argued that quoting from the company’s website was equivalent to a right of reply, or at least canvassing their views, equivalent, say, to reporting on a controversial tweet of a politician. The publication does not have to go back and ask the originator of the tweet for their views. “This is the most fundamental principle…we are trying to do without the pretense that quacks have the right to come kind of equal say.”
4.14 Both Mr Claassen and Mr Geffen refer to the Ombudsman’s ruling in the case of Daleen Totten vs GroundUp. The complaint was brought by the owner, publisher and editor of a magazine called Natural Medicine. The story, written by Mr Claassen, concerned a sub-editor – in fact the same reporter who authored this story, Natasha Bolgnesi – who “stood up for evidence-based science reporting by refusing to edit a ‘pseudoscientific’ article about a product which she believed to be a scam’ – and was found guilty of “insubordination” at a disciplinary hearing.
The article in question was about a product developed in Austria called WAVEEX, “a small plastic chip which its manufacturers and peddlers claim can be attached to cell phones and other mobile devices to reduce harmful radiation – a claim which Claassen refuted.”
4.15 The Ombudsman in his finding noted the complaint came from Ms Totten who was the editor of the magazine and not WAVEEX (which had threatened legal action against GroundUp and Claassen) “and therefore I am not going to entertain any correspondence regarding that company or its product”.
As WAVEEX was not a complainant, the Ombudsman found that Totten cannot complain on WAVEEX’s behalf that Claassen did not contact the latter for comment”. He dismissed the complaint.
4.16 But this is not an equivalent case because WAVEEX, the company accused of quackery, was not a complainant and “it is certainly not clear that he was accusing Totten of any fraudulent activities.”
4.17 Moreover, GroundUp published letters from both WAVEEX and Ms Totten below the article on its site.
From the article it is clear that there was another issue too which went to possible conflict of interests: the editor of the magazine was both marketing the product and running editorial copy in her magazine in it at the same time. This seems an egregious conflict of interests and on the face of it a transgression of the Press Code.
4.18 I would like to add a brief word about the tone of both Mr Geffen and Mr Claassen’s response to the Ombud as I was investigating this complaint.
Mr Claassen, although he sent me numerous articles, appeared irritated when I asked him what the situation would be when the article was not a “general” scientific one but “when someone is the subject of adverse reportage and not given the right of reply. That's the conundrum.”
Mr Claassen replied:
“It is no conundrum. The point is, science journalism is and should be treated differently. And O2xygenate's arguments were used in the article, then followed by the reactions of credible, peer reviewed scientists and science to that…I get highly irritated when the media do not understand how science works, why evidence is so important and why you may and can ignore non-evidence-based claims.”
4.19 For his part, Mr Geffen objected strongly, when I called him, that I had spoken to the complainant to try to elicit more information. I should point out that I speak to the complainant, the editor, and if necessary the reporter and his or her sources in most cases I have adjudicated. After my phone conversation with him, he wrote to me saying: “I got the impression from our discussion that the complainant is now making novel claims or arguments that are not on the papers (though I'm not sure I understand precisely what those arguments or claim are). If that's the case they need to be written down and articulated clearly so that we have a proper opportunity to respond to them, in writing. “
In fact his arguments were in lengthy documents he filed, which claimed to be scientific or dealt with “off-label” regulations and practises of the FDA. I had called him for clarification.
4.20 More seriously, as I was working on this adjudication, Mr Geffen complained about me to SANEF in a lengthy letter, and also accused the Public Advocate of not sending the complaints timeously. As I have explained above, in this case, it appears emails were sent almost as soon as the complaint was received, but did not appear to have been received by Mr Geffen.
He accused me of “flouting procedure”, by having “ex- parte discussions with both the plaintiff and me. I pointed out in an email to her that this was inappropriate and she responded defensively. .. The Ombudsman introduced issues in her discussion with me, based on her discussion with the plaintiff, which were not in the papers.”
But how does one ascertain the facts of a case if one does not speak to both parties? The reason for my call to Mr Geffen was precisely to let him know what the plaintiff had said.
If my predecessor, Mr Retief, had not investigated the cases more thoroughly than was on the papers, and had not asked for sources (which the Ombudsman is entitled to do), the outcome of certain key rulings, such as the Rogue Unit rulings, may have been different.
The letter of complaint was sent to SANEF while I was working on this complaint. If it was an attempt to intimidate me, then I will try, in the interests of fairness, to ignore it for this ruling, but I do need to note it.
4.21 In any event, there is nothing in the Complaints Procedure that I can find that prohibits the Ombudsman making further inquiries to ascertain the facts and the truth.
4.22 By their own admission, neither Mr Claassen nor Mr Geffen are scientists. It would be remiss of me, when a complaint lands on my desk, to take their word for scientific truth without trying to investigate further .
On the issue of inaccuracy, I agree with both Mr Geffen and Mr Claassen: GroundUp consulted a number of scientific experts on hyperbaric oxygen therapy and there are no grounds for this.
This part of the complaint is dismissed.
On the right of reply: Both Mr Geffen and Mr Claassen have argued strongly that science journalism holds a different place in the profession. In general terms, it is entirely unhelpful to the public to give an “alternative” view on well-established scientific facts such as climate change, the solar system, the efficacy of the MMR vaccination, or evolution.
This is so even though science itself is a subject that is debated and challenged; yet it is a discipline subject to rigorous peer review and thus has more “certainty” than any other subject journalists report on.
But they also claim that Oxygenate was given a right to reply because the article quoted from its website. If the principle of right of reply was respected in this form, I was puzzled about why the firm was not contacted.
GroundUp should be commended for taking on important public health issues and sourcing the scientific evidence against what may be bogus health claims.
That said, I am also bound by the Press Code. Clause 1.8 states: “The media shall seek the views of the subject of critical reportage in advance of publication., provided that this need not be done where the institution has reasonable grounds for believing that by doing so it would be prevented from reporting…”
I accept the argument that there is enough scientific evidence, as reported by GroundUp, that there were not sufficient grounds for giving credence to the arguments put forward by the practitioners of mHBOT therapy.
But only one company was singled out in this article (the other, SpecialKids, was mentioned only insofar as it provided a link to the Oxygenate website although I could not find this). Oxygenate mentions in its arguments there are others in this category too who offer mHBOT.
The company was mentioned in the context of one of those “fraudulently cashing in on the science” and as “opportunists”.
It is not enough to say that the information gleaned from Oxygenate’s website was equivalent to a right of reply, when these phrases were used.
Because of the arguments about science, I am not suggesting that Oxygenate be given a right of reply.
However, in terms of the Press Code, GroundUp should not have mentioned the company without approaching it for comment.
Thus GroundUp should apologise for mentioning Oxygenate specifically in this article, which in any event would have been just as educative without singling out one company.
This is Tier 2 offence.
The publication’s apology should be published with a link to the original story, and be approved by the Ombudsman. The Press Council logo and a link to this finding should also be published.
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 Khanyim@ombudsman.org.za.
November 29, 2019
 This is Mr Geffen’s citation.
 Totten vs GroundUp, Finding 3772, June 2018
 Jackson, T: BMJ 2011;343:d8006
 See for example the robust debates among scientists on Darwin’s theory of evolution: https://isj.org.uk/revolutions-in-evolution-stephen-jay-gould-in-perspective/