Mothakge Kgatla & Manuel Meisenheimer vs. Daily Sun
Tue, Feb 2, 2021
Complaint number: 8492 & 8494
Date of article: 8 January 2021
Headline: Lockdown Bush Pokers! – Horny bunch make Garden of Eden look like picnic
Online: Picture of the front page of the newspaper on Daily Sun’s Facebook page
: Article published online without photographs
Author of article: Karabo Rammutla
Respondent: Johan Vos, deputy editor
1.1 Mothakge Kgatla and Manuel Meisenheimer complain that the front-page lead of the newspaper’s print edition contained a picture of a naked couple engaged in sex. (The print edition was also advertised on Daily Sun’s Facebook page the previous day with a photo of the front page.)
1.2 Section 9.3 of the Press Code is relevant. It reads, “The media shall avoid content which depicts … explicit sex, unless the public interest dictates otherwise – in which case a prominently displayed warning must indicate that such content is graphic and inappropriate for certain audiences such as children.”
- The reportage
2.1 The article was about a group of friends who held a sex orgy in the bushes near Hammanskraal – and “proudly broke all the [Covid-19] rules”. They reportedly also shared cigarettes and alcohol, and smoked hookah pipes.
2.2 A woman was quoted as saying that Pres Cyril Ramaphosa needs “one round of sex”.
2.3 A picture of a naked man and a woman who had been having sex accompanied the text. An emoji covered the man’s back side.
- The arguments
3.1 Johan Vos replies that it was in the public interest to publish the article and picture – the subjects of reportage were protesting Covid-19 regulations in public, and a disrespectful message was sent to Pres Ramaphosa.
3.2 He points out that this happened shortly after Ramaphosa had sent the country back to an adjusted level 3 lockdown.
3.3 “These people willingly shot this video and circulated it, showing their disdain for Covid-19 regulations. We quoted Twitters users, condemning their behaviour and their actions should be condemned at all cost. We also quoted police spokesperson Captain Mavela Masondo and he said that the wild bunch will be arrested once police have gathered enough evidence,” Vos submits.
3.4 The deputy editor elaborates: “We’ve decided to publish this article and pictures to send out an important message to our readers. Respect the Covid-19 regulations as this pandemic is claiming lives daily and infections are rising rapidly. The actions of these individuals are a disgrace as they have no respect for human life. They will suffer the consequences as they broke several Covid-19 regulations.
3.5 “We submit therefore that it was in the public interest to publish the pictures and article as the public needs to know about these individuals’ disregard for Covid-19 regulations, and that members of the community can potentially further spread the coronavirus through their complete disregard and disrespect of the regulations.
3.6 “We covered all the racy parts in the pictures with emojis and the explicit nature of the pictures was softened drastically,” he concludes – adding that Daily Sun is a tabloid, “and we need to tell news as it is. We are the People’s Paper and publish articles in the best interest of our readers”.
3.7 Kgatla says he agrees that the newspaper is a tabloid, but argues it is not a pornographic paper. He asks: “Is this the type of material [Vos] would like his kids to be exposed to, walking into a grocery store? The so-called emojis covered the sexual organs, but not the sexual content/context/innuendo of the publication.”
3.8 Calling it a “sad day”, Meisenheimer says irrespective of the emoji covering explicit content, “the act that they are engaged in is clearly visible by any minor passing by”.
4.1 Let’s take a close look at what Section 9.3 of the Press Code says. It reads, “The media shall avoid content which depicts … explicit sex, unless the public interest dictates otherwise – in which case a prominently displayed warning must indicate that such content is graphic and inappropriate for certain audiences such as children.”
4.2 The following questions are at the centre of this matter:
- Did the picture contain “explicit sex”?;
- Was the publishing of the picture in the public interest?; and
- Did the newspaper prominently display a warning “that such content is graphic and inappropriate for certain audiences such as children?”
4.3 Explicit sex
4.3.1 The question whether the picture in question contained “explicit sex” is not so easy to answer.
4.3.2 Several issues are afloat here: What exactly does “explicit” mean? If people obviously have sex, but their vital parts are covered, is it still “explicit”? Or does it only become “explicit” when the vital parts are visible?
4.3.3 Synonyms of “explicit” are inter alia “clear”, “obvious”, “plain”, “unambiguous”, and “leaving no room for doubt”. This leads me to believe that “explicit” sex cannot be confined to the showing of vital parts – if it is clear that people are having sex (as is the case in point), then it is explicit.
4.3.4 The picture in question indeed left no doubt in the readers’ minds – the couple were naked and they were having sex. Even though an emoji was used to cover the man’s backside (for which the newspaper is commended), Vos’s argument that an emoji covered his vital parts therefore has no leg to stand on.
4.4 Public interest
Vos’s arguments about public interest are convincing and do not need any further argument.
4.5 Prominent warning
4.5.1 The story was a front-page lead; the picture in question was on that page. There was no warning.
4.5.2 The Public Advocate asked Vos a relevant question: Why not publish the picture inside, with a warning on page 1? Vos answered: “The team indicated that the emojis covered all the necessary bits and therefore the pictures weren't deemed as explicit.” I disagree with this answer, as I have indicated in 4.3.4.
Daily Sun was in breach of the Press Code – not for publishing the picture, but for neglecting to prominently display a warning that it was inappropriate for certain audiences such as children.
- Seriousness of breaches
6.1 Under the headline Hierarchy of sanctions, Section 8 of the Complaints Procedures distinguishes between minor breaches (Tier 1 – minor errors which do not change the thrust of the story), serious breaches (Tier 2), and serious misconduct (Tier 3).
6.2 The breach of the Press Code as indicated above is a Tier 2 offence.
7.1 Daily Sun is directed to apologise for not warning the public that it published a picture that contained explicit sex that was inappropriate for certain audiences such as children.
7.2 The apology should be in the form of a teaser on the front page, with a headline containing the words “apology” or “apologises” and the words “explicit sex”, referring to the apology itself on an inside page.
7.3 The text should:
- be published at the earliest opportunity after the time for an application for leave to appeal has lapsed or, in the event of such an application, after that ruling;
- refer to the complaint that was lodged with this office;
- end with the sentence, “Visit www.presscouncil.org.za for the full finding”;
- be published with the logo of the Press Council (attached); and
- be prepared by the publication and be approved by me.
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.
Acting Press Ombud