By Edmond Phiri
IN a jaw-dropping display of legal acrobatics that would make even Franz Kafka blush, the Press Council of SA (PCSA) has delivered a ruling so irrational, so fraught with contradiction, that it threatens to reduce the nation’s media landscape to a tepid pool of milquetoast reporting and neutered commentary.
The judgment by the PCSA in the News24/Karyn Maughan vs Sunday Independent/Edmond Phiri case is not just disappointing; it is downright alarming. To add an insult to injury, the Appeal Panel of the PCSA upheld the ruling.
At its core, the case concerned a critique of Karyn Maughan’s coverage of Sekunjalo on News24. But in the hands of the PCSA, it morphed into a Frankenstein’s monster of flawed reasoning and dangerous precedent. First, the Council performs a magnificent feat of logical contortion. They admit the article in question is clearly labelled as an opinion, acknowledge its right to protection under Section 7.2 of the Press Code, then proceed to strip away that very protection faster than you can say “doublethink”.
The ruling hinged on a questionable interpretation of Section 7.2. The section protects comment or criticism, even if extreme, unjust, unbalanced, exaggerated, and prejudiced, as long as it is without malice, on a matter of public interest, and takes fair account of material facts. The Council’s ruling suggests that the article in question did not take adequate account of material facts, but this is a deeply flawed conclusion. The ruling seems to require the standard required in investigative and news pieces.
Even after admitting that the article was correctly labelled as an opinion and comment, the Council proceeded to evaluate the piece as if it were a factual report. This is a gross misapplication of the Press Code. Why? Because apparently, the writer’s rhetorical flourishes were too spicy for the Council’s delicate palate.
Heaven forbid a columnist use vivid language or historical analogies to make a point! The judgment sneers at comparisons to Nazi propagandists and apartheid-era tactics, seemingly oblivious to the rich tradition of using such parallels in political commentary worldwide.
But here’s where it gets truly Orwellian. The Council, in its infinite wisdom, decided to judge the article “as a whole” rather than addressing the seven specific claims brought by the News24 and Karyn Maughan. This is akin to a referee ignoring the actual fouls committed on the field and instead penalising a team for the whole game because he didn’t like their overall style of play. The mental gymnastics don’t stop there. The Council acknowledges it’s not determining whether individual statements are fact or opinion, then proceeds to do exactly that, cherry-picking phrases to support what looks like a predetermined conclusion.
The Press Council’s approach to the issue of malice in this case is particularly troubling. In the judgment, the Council says: “Noting the severity of the attack on Maughan and the lack of substantiation, we find that the column fails to achieve the protection of clause 7.2.”
The judgment then proceeds to dance around the issue of malice like a politician avoiding a straight answer. While the Council claims that it did not find it necessary to pursue the question of malice, they proceed to make rulings that can only be justified if malice were proven. It’s clear that the entire judgment seems to be influenced by an underlying assumption that the article was written with malicious intent.
My view is that there is no causal nexus between the evidence placed before the Press Council and the findings it makes.
The assumption of “malice” or “strong attack” against Maughan is not supported by evidence; rather, it is a speculative conclusion drawn from the strong language used in the article. The Council’s failure to clearly define malice and apply a rigorous test to determine its presence further undermines the credibility of its ruling.
In what looks like a clear circular argument, the Press Council proceeded: “However, having determined that the column fails to achieve the protection of the clause as it did not take adequate account of the facts, we do not find it necessary to pursue the question of whether it was presented with malice.”
First, they remove the protection of the article using “severity of attacks” (which could be judged as malice), among other reasons, and then proceed to say that they do not find it necessary to pursue a question of whether it was presented with malice. It’s a sleight of hand so blatant it would make a street magician blush.
The reasoning employed by the Council sets a dangerous precedent that could be used to silence any strong critique or dissenting opinion. If every opinion piece that employs strong language can be dismissed as malicious, then the media’s role as a watchdog is effectively neutered. The Council must understand that strong opinions are not inherently malicious, and it must protect the right of journalists or opinion writers to express those opinions without fear of retribution.
By demanding that every rhetorical device and analogy in the article be backed by supporting facts, the Council is setting an unreasonably high bar for what constitutes acceptable commentary. This standard is more appropriate for news reports and investigative journalism than for opinion pieces. The judgment effectively punishes the Sunday Independent for employing strong language and provocative comparisons—tools that are essential for engaging and impactful opinion writing.
But wait, there’s more! In a move that would make Joseph Heller proud, the Council admits there’s no firm evidence the article was written at anyone’s behest, then uses this non-evidence to support a finding of conflict of interest, especially that the Sunday Independent violated Clause 2.1 of the Press Code.
It’s a case of Catch-22, meet Catch-23. The conclusion is based on little more than speculation and innuendo. The Council accepted, without substantial evidence, that the tone of the article indicated editorial interference. This is a dangerous and unfounded accusation that undermines the editorial independence of the Sunday Independent.
The Council’s reasoning here is deeply flawed. It has set a precedent that allows for the presumption of editorial interference based on the mere use of certain pronouns or the tone of an article. This is not just unreasonable; it is absurd. The burden of proof should be much higher when making such serious allegations. Without concrete evidence, these findings should never have been made.
The implications of this ruling are as chilling as a Siberian winter. If allowed to stand, it sets a precedent that could freeze the lifeblood of robust journalism in South Africa.
Imagine a media landscape where:
- Columnists must provide an exhaustive bibliography for every metaphor.
- Editors live in fear that a shareholder’s use of the pronoun “we” could be construed as editorial interference.
- Strong language and vivid analogies are forbidden, lest they be deemed “malicious” without any burden of proof.
- Opinion pieces must be as dry as the Kalahari and as bland as overcooked pap, stripped of all rhetorical devices and provocative comparisons.
Is this the future we want for South African media? A neutered press, cowering in fear of offending the powerful, second-guessing every turn of phrase? A future where journalists and editors would need to consult lawyers before daring to pen or publish a strongly-worded column? What’s next? Will the Council demand that satirists provide footnotes for their jokes? Will cartoonists need to submit affidavits proving the literal truth of their caricatures?
The Council’s ruling and the appeals committee ruling are not just wrong; but dangerous. It’s a roadmap for how the thin-skinned and litigious can silence their critics. Don’t like an opinion piece? Just claim it didn’t “take fair account of all material facts” – whatever that means – and watch the Council tie itself in knots to accommodate you.
This judgment is a gift to every corrupt politician, every unethical corporation, and every thin-skinned public figure who’d rather silence criticism than address it. It’s a blank check for censorship, wrapped in the guise of media ethics.
* Edmond Phiri is an independent commentator and analyst.
** The views expressed do not necessarily reflect the views of Independent Media or IOL.