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Referendum Party vs Daily Maverick


Sun, May 5, 2024

Ruling by the Press Ombud

Date of article:                    28 March 2024

Headline of publication:   “Fact check – Is it likely the Western Cape could become an independent state?”

Author:                                  Rebecca Davis                                                                                   

  1. Phil Craig, leader of the Referendum Party, complains about a piece that appeared on the Daily Maverick website.
  1. Jillian Green, deputy editor of the publication, responded.
  1. The ruling is based on written representations by both parties.

Background

  1. The Referendum Party’s election campaign is best described by Craig in a keynote addressed he submitted as part of his representations to this office: “Our sole purpose as a political party is to force the DA to call a referendum on Cape independence which will establish an ideological homeland for people who think like we do…”
  1. To further quote Craig on the issue of Cape independence: “To some, it is a silly, unobtainable pipe dream, but to others, it’s an article of faith which is essential to our very survival.”
  1. This firm belief of the Referendum Party and others who advocate for “CapeXit” takes centre stage in the Daily Maverick piece in question.
  2. Green explains that Daily Maverick created a series of videos and articles under the “fact check” banner. The aim of these pieces is to test the veracity of claims made in the public discourse.
  1. This type of journalism is not unfamiliar to South African audiences.  Africa Check is a well-known institution exclusively focusing on fact-checking. Several other media outlets have also used this format in conjunction with traditional news reporting, traditional opinion pieces, and other hybrid forms of journalism of journalism such as analysis pieces.
  1. Daily Maverick’s piece posed the following question: “Is it likely the Western Cape could become an independent state?” Elsewhere in the piece, the question is posed slightly differently: “But is the promise that the Western Cape could secede from the rest of South Africa actually based on fact?”, and “…regardless of the popularity of the idea or its actual merits, are the pro-independence parties promising something that is actually legally viable?”
  1. The conclusion is as follows: “..(T)he CapeXit parties appear to be selling voters pipe dreams.”

The complaint

  1. The Referendum Party alleges the following breaches:

11.1 The coverage is not fair and accurate (Clause 1.1.).

11.2 Daily Maverick did not seek the party’s views before publication. (Clause 1.8).

11.3 The coverage of the subject was influenced by political considerations (Clause 2.1).

11.4 Daily Maverick breached clause 6 dealing with advocacy.

11.5 The complainant says Daily Maverick presented opinions as facts (Clause 1.3).

  1. Daily Maverick denies any breaches of the code.

Is it an opinion piece?

  1. Much of the arguments advanced revolve around the nature of Daily Maverick’s piece. Craig insists the publication “has presented what is clearly an opinion piece in the form of a fact check”. In the Daily Maverick’s responses, it avoids labelling the piece an opinion piece or otherwise.
  1. Evolving journalistic practice is making it increasingly difficult to place piece of journalism into the traditional boxes of “opinion piece” and “news reporting”. It is becoming common – and accepted practice – to publish analytical or interpretive pieces where news reporting is mixed with commentary.
  1. For reasons that will become apparent below, I am of the view that the “fact check” piece has the overall nature of an opinion piece.
  1. But this traditional classification might not be as important as it appears at first glance. It is evident from several decisions by this office and the Appeals Panel that penning what can overall be classified as an opinion piece is no panacea to all possible transgressions of the Press Code. In Patriotic Alliance vs News24 the Appeals Panel unanimously found that not all statements in an opinion piece qualifies as a comment by the mere fact that it is contained in a piece that can generally be considered an opinion piece. If there are factual assertions/reportage within the opinion piece, it should be adjudged as that.
  1. In short, the question is whether a particular statement under scrutiny is a comment or a factual assertion and whether that statement fell foul of any provisions of the Press Code if not being protected by the “safe harbour” of Clause 7.
  1. Whether a statement would appear to an ordinary reader to be comment or a factual assertion depends on a number of factors. Although not a closed list, the following factors have crystalised in a number of cases:

18.1 Whether the piece as a whole is marked or labelled as an opinion piece. (Appeal decision: Prof Shabir Moosa vs South African Jewish Report, 13 January 2022)

18.2 Whether the capacity in which the author wrote the piece is stated and/or would give indications to a reasonable reader that the piece is written from a certain perspective. (Embassy and Ambassador of Russia to South Africa vs Daily Maverick, 10 October 2023)

18.3 The language used in coaching the sentence, i.e. whether a reasonable reader would understand the statement the statement to be comment or fact. (Appeals Panel: Patriotic Alliance vs News24)

18.4 Whether the sentence(s) is/are quotations from another source (Appeals Panel: Goss Marlon vs News24, 11 June 2011).

18.5 Whether the piece contained first person narratives which is inconsistent with generally recognised formats of news reporting. (Appeal decision: Prince Mangosuthu Buthelezi vs Mail & Guardian, 29 January 2019)

18.6 Whether there is some extraordinary feature of the article that would alert a reasonable reader that it is not news reporting, such as the inclusion of a telephone number “for more information” and calling the piece a “press release”. (Vuma Reputation Management vs News Frame, 9 September 2021.)

18.7 Under which section of a website the piece appeared. (Mazzotti vs News24, 16 February 2024)

  1. It must be stressed that none of these factors are requirements to qualify as an opinion piece or statement of opinion. Neither is any one of these factors dispositive of any possible dispute about the nature of the statement. It serves only as guidance.  
  1. The overarching question remains whether a reasonable reason would consider the statement in question to be a comment or assertion of fact. The Press Code demands from publications to separate facts from opinions for readers but does not prescribe a formula as to how this should be achieved.
  1. Returning to whether the Daily Maverick’s “fact-check” piece was an “opinion piece” or not, Craig labelled it as such himself in the initial complaint.
  1. The nature of the article is clear from the headline, “Is it likely the Western Cape could become an independent state?” (my underlining). It places the subject matter firmly within the realm of opinions. The CapeXit camp claims that it is possible/likely while the opinion piece is testing the likelihood of this possibility.
  1. The nature of the piece is further evident from the conclusion of the piece. It is hardly conclusive. The conclusion reads: “It is simply impossible to imagine a world in which South African law and politics line up to allow one of the nine provinces to assert itself as a separate country – especially since even parties like the DA do not support the idea. As such, the CapeXit parties appear to be selling voters pipe dreams.” In other words, it is not impossible. It is, according to the piece, just unlikely and improbable in the extreme.
  1. The piece also relies in good part on reflections of different people’s views, rather than reportage of immutable facts:

24.1 It reflects the views of the Freedom Front Plus and the DA on the issue;

24.2 It relies heavily on the views of legal experts, although only one (Professor Pierre de Vos) is named in the piece;

24.3 It reflects, to an extent, the views of advocates of Cape secession that a referendum on the issue would provide the necessary impetus for such an occurrence.

  1. The form of journalism, being a “fact check” feature, does not resemble the traditional format of news reporting. It is not reporting on something that happened or revealing any new information.
  1. In light of all the above, I conclude that a reasonable reader would have identified the piece in question as an opinion piece. This is, however, not the end of the matter.

Complaint 1: Presenting fact as opinion

  1. Craig lists clause 1.3. of the Press Code requiring the media to “present only what may reasonably be true as fact; opinions, allegations, rumours or suppositions shall be presented clearly as such”.
  1. However, this clause deals with the gathering and reporting of news. In light of my finding that the piece was not news reporting, clause 1.3. appears inappropriate. So is the complaint of contravening clause 1.2. (material omissions) which is also only applicable to news reportage.
  1. Still, clause 6 (advocacy) and clause 7 (protected comment) also require the media to clearly present comment as such. I specifically make no finding that the piece amounted to advocacy by the Daily Maverick, as defined in clause 6 of the code, as this matter is addressed below. For now, the only consideration is whether commentary was presented as fact.
  1. The use of the words “fact check” seems to be the real thorn in the Referendum Party’s side. Says Craig:

30.1 “…Daily Maverick has presented what is clearly an opinion piece in the form of a fact check.”

30.2 “..(T)his article is both intended to be, and will be perceived by readers as, a fact check and neither a news article nor opinion piece.”

30.3 “I trust that we are in agreement about what a fact check is, but if there is any doubt, perhaps the Cambridge Dictionary definition is helpful, the process of checking that all the facts in a piece of writing, a news article, a speech, etc. are correct.”

  1. Where I agree with Craig that the piece contained opinions. Where I disagree, is that those opinions were presented as fact.
  1. Nothing hinges on the label of a “fact check”. A literal interpretation would be a misnomer. A more accurate – albeit far less catchy – description of these features would have to be “claims checker”. For if a claim made in the public domain was untrue or inaccurate, it was never a fact to begin with.
  1. The dictionary definition of a “fact check” does not support the Referendum Party’s argument that a “fact check” feature implies that everything beneath the label of the feature is presented as facts.
  1. As I’ve already said, South African media consumers are familiar with these “fact check” features. “Fact check” features in journalism are not contained to the dictionary definition of only checking objective facts for accuracy. More often than not, these features test claims, distortions of fact, and provide context to claims. If they were strictly confined to checking the accuracy of facts, they would all be one-liners: “Person X said the sky is pink. It is, in fact, blue. End of story.” It is for this reason that “fact check” features often have conclusions such as “maybe”, “unlikely”, “misleading”, “partly true”, or whatever language that particular media outlet uses for their “fact check” feature.
  1. In this case, it is even more apparent to any reasonable reader that no objective “fact” (or, more correctly, factual claim) was under scrutiny. What was under scrutiny, was the likelihood of Cape secession. The concluding opinion was that it is unlikely in the extreme.

Complaint 2: Accuracy of statements

  1. The Referendum Party identifies two statements in the piece that are said to be incorrect and therefore in breach of clause 1.1., alternatively a misstatement of material facts that would remove the “safe harbour” of clause 7:

36.1 Paragraph 11, which reads: “As for the plan for the Western Cape to secede: the first step, its advocates say, is to hold a referendum on the matter. It may actually be legally permissible for the President or the Premier to call a referendum on a certain issue. But even if they do so, the results are not binding in any way. They can just be ignored.”

36.2 Paragraph 12, which reads: “Furthermore, as Pierre de Vos has written elsewhere: ‘Questions of secession are not a provincial matter. They are a national matter. Only the national executive and the national Parliament can legally bring about secession through, among others, amendment of the Constitution.”

  1. The second sentence is clearly the opinion of Professor Pierre de Vos and not subject to the scrutiny of clause 1.1. for accurate and fair news reporting.
  1. The first sentence is also, in my view, clearly identified as the opinion of legal experts. Paragraph 11 is couched between paragraph 10 that explicitly explains that the paragraphs that follow are the views of legal experts and paragraph 12 which is the continuation of the opinion of Professor De Vos in particular.
  1. This ought to be the end of the enquiry. However, even if I am wrong that the sentences in question are not clearly identified as commentary from legal experts, I am also not convinced that the sentences are transgressing any part of the Press Code – either through being inaccurate or misleading by omission.
  1. I say so because Craig challenges these statements through opinions and interpretations of his own – not generally accepted facts.
  1. On the binding nature of a referendum issue, he refers me judgments of the Supreme Court of Canada and the United Kingdom Supreme Court and states that “international law is the same for South Africa, Canada, and the UK”. He then quotes an excerpt from the Canadian Supreme Court of Canada on secession of Quebec to claim that the statement that a referendum would not be binding, is incorrect.
  1. For completeness sake, the part of the Canadian Supreme Court judgment Craig relies upon, is a statement by that court that, “the continued existence and operation of the Canadian constitutional order could not be indifferent to a clear expression of a clear majority of Quebecers that they no longer wish to remain in Canada”. Craig does not, however, quote the part of the judgment that reads that there is “no right, under the Constitution or at international law, to unilateral secession”, while the “possibility of an unconstitutional declaration of secession leading to a de facto secession is not ruled out”.
  1. As fascinating as the legal debate on these issues are, I decline to enter that arena or to comment on the soundness of the legal submissions made by the Referendum Party.
  1. It suffices to state that Craig is of the opinion – rightly or wrongly – that a) a referendum would show overwhelming support for secession, b) the powers that be would find it impossible to ignore the will of the people, c) and that this could lead to secession.
  1. Craig said in his complaint that the journalist did not “grasp” the “complex concepts” at play. This appears unfair.  
  1. Daily Maverick responded by saying that journalists are not lawyers. “It is precisely for this reason that the fact-check relies on the views of experts.” Green says there is no reason to accept Craig’s views as a more reliable authority on this matter over those of some of the country’s leading academic minds.
  1. This argument cannot be faulted.
  1. The fact of the matter is that the Referendum Party itself cannot state as fact that secession is possible or likely. Obviously, these issues are all opinions and untested legal hypotheses in South Africa (which may turn out to be correct or not). Our courts have never considered it. Until then, it is an opinion of the Referendum Party and its supporters.

Complaint 3: No right of reply

  1. The Referendum Party says it should have been afforded an opportunity to respond prior to publication. Craig says: “In the last few weeks of an election campaign, to use that opinion to effectively inform the Daily Maverick’s entire readership that the Referendum Party is effectively lying to its prospective voters is totally unacceptable.”
  1. Green says the feature was not a news article for which a standard right of reply would apply. She further says the entire aim of the fact check features are “not to reflect the subjective views of those advocating for a particular claim, but attempt to hold them up to objective scrutiny”.
  1. Clause 1.8. of the Press Code states the media shall, where practicable, seek the views of the subject of critical reportage in advance of publication, except when they might be prevented from reporting, or evidence destroyed, or sources intimidated.
  1. As already stated, the clause 1 of the Press Code centres around the gathering and reporting of news. Clause 1.8. itself limits its application to reportage.
  1. I have already found that the piece had an overall character of an opinion piece and the relevant statements in the piece amounted to commentary, meaning there could be no transgression of clause 1.8.
  1. However, even if I am wrong in this regard, there are further reasons why Daily Maverick was not obliged to seek the views of the Referendum Party.
  1. I am firstly not convinced that the Referendum Party was subjected to “critical reportage”, as envisaged in the Code. In my view, critical reportage is something that could affect the reputation or dignity of the subject of such reportage.
  1. I disagree that the feature implied the Referendum Party is “lying” to its prospective voters. The referendum party is mentioned once in the entire article – alongside another political party dealing with so-called CapeXit in its election manifesto. There is nothing that belittles the ideas of the party or the party leaders. (To the contrary: the party’s proposition is seriously debated). Neither is there any claim in the feature of voters being misled. There is criticism that the idea appears to be a pipe dream, yes, but this is hardly anything new criticism.
  1. Nothing in the piece would make those who share the Referendum Party’s “article of faith” that secession is necessary and possible to think less of the party. Probably the contrary.
  1.  Even if I am wrong on this score as well, I am of the view that the consideration of practicability of the matter also militates against an obligation to seek pre-publication comment.
  1. There is merit in Green’s argument that a fact-check feature would be somewhat defeated if it is to include the subjective views of the entity or person whose claims are under scrutiny.
  1. This piece boiled down to a political debate and critique of election manifestos in the public domain. Similar to situations where it is not practicable to seek pre-publication comment when repeating past critical reportage (see: Steenhuisen & Others vs Mail & Guardian), it is in my view also not practicable to seek comment when engaging in political debate. If this were so, the ANC would have to be contacted every time an opposition politician criticises the ANC government or the ruling party’s policies.
  1. In conclusion, there was no obligation on Daily Maverick to seek the Referendum Party’s pre-publication comment.
  1. Craig bemoans the fact that Daily Maverick is refusing the party an opportunity to state its views and has apparently done so in the past. This forms part of a publication’s editorial discretion. There is no general right to be heard. As was held in Embassy and Ambassador of Russia to South Africa vs Daily Maverick, I am of the view that a sanction requiring a right of reply is only appropriate where clause 1.8. has been breached; i.e. when the publication had an ethical duty in the first place to afford pre-publication comment.

Complaint 4: Advocacy and undue political influence

  1. Lastly, the complaint states that Daily Maverick is engaging in political advocacy and is contravening clause 2.1. as its “coverage of the subject of Cape Independence is without doubt influenced by political considerations”.
  1.  Clause 6 of the code states: “The media may strongly advocate their own views on controversial topics, provided that they clearly distinguish between fact and opinion, and not misrepresent or distort relevant facts.”
  1. I do not agree that the piece in question amounts to advocacy by Daily Maverick. In any event, advocacy is not prohibited. I have already found that there was no failure to distinguish between fact and opinion. There was no misrepresentation or distortion of relevant facts.
  1. Clause 2 of the code, dealing with independence and conflicts of interest, exists to protect the integrity of the media. A contravention of this clause would be serious in the extreme.  
  1. The only assertions made by the Referendum Party on this score is that Daily Maverick is refusing it a right of reply and prefers views of people who are “known” to be biased towards it.
  1. This does not indicate undue political influences on Daily Maverick.
  1. In fact, Green points out that Daily Maverick has run similar features on other political parties’ manifestos.

Conclusions

  1. For the reasons stated above, the complaint is dismissed.

Herman Scholtz

Press Ombud

5 May 2024

Appeal

The Complaints Procedure lays 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 [email protected].