Request for Adjudication - Lorgat vs Daily Maverick

Fri, Mar 8, 2024

Ruling by the Deputy Press Ombud

Dates of publication:

16 December 2023 (in print) and 29 December 2023 (online)

Headline of publication:

International villain of the year: Benjamin Netanyahu & Mohammed Deif

Author: Rebecca Davis

Particulars

1. The complainant is Hassen Lorgat.  
2. The complainant lodged a complaint against Daily Maverick on 9 January 2024.
3. The Public Advocate of the Press Council decided to decline acceptance of the complaint, writing back to the complainant to this effect on 15 January.
4. The complainant appealed the decision on January 23.
5. The Daily Maverick was asked for a response to the complaint, and a response was received on February 5, from Heather Robertson, editor of DM 168, which first published the People of the Year supplement.
6. The complainant was asked to respond, and did so on February 10. 
7. Taking the form of an appeal against the decision not to accept the complaint, the matter was passed on to me on 14 February.
8. I considered the following documents:

8.1 The complaint;

8.2 The original report;

8.3 The public advocate’s decision to refuse acceptance;

8.4 The newspaper’s response to the complaint; and

8.5 The complainant’s rejoinder.

The article

9. The article names Benjamin Netanyahu, Israel’s president, and Mohammed Deif, commander of the military wing of Hamas, as joint “Villains of the Year” for 2023.  It follows a call to readers to vote for their candidate of choice in this among several other categories.  Though the vote was strongly in favour of Netanyahu, (with 817 to 428 votes) a joint award was made. The paper wrote, “in the interests of justice an editorial decision was taken to co-award this ignominious label to the Hamas commander believed to have been behind the October 7 attack on Israel.”  The rest of the article summarises the events since October 7, pointing out atrocities laid at the door of Hamas as well as the cost of the Iraeli attack on Gaza.  

Arguments

10. A great deal has been written in the documentation. In the following, I extract the main arguments on either side.
11. The complaint is centrally that the Daily Maverick is in breach of the press code by overruling the vote of its readers. It focuses on the article in question, but also refers to the way in which readers were initially invited to vote on November 15. The complaint refers to several sections of the Press Code, arguing variously that the article

11.1 transgresses clauses 1.1 and 1.2 by not reporting the news accurately and in context;

11.2 transgresses clause 6 by introducing an editorial view into a news piece;

11.3 transgresses clause 2 by demonstrating bias and a lack of independence, in that the editorial intervention to override the reader vote supports a pro-Israel agenda. The complaint also focuses on what is seen as biased presentation of the two candidates in the November 15 invitation to vote, and argues the report should have been presented as a form of advertorial;

11.4 transgresses clause 10 in that the headline and introduction misled readers by omitting to say that the decision was finally made by the editors. 

A lengthy discussion outlines the argument that the decision creates a false equivalence between Hamas and the state of Israel, and blames Palestinian victims for their suffering.

12. In rejecting to accept the complaint, the Public Advocate said he could find no prima facie case of breach of the Press Code as the report clearly indicated that the editors had taken the final decision. He pointed out that rather than this being the only example, as the complainant initially said, they had also done so in the category of South African villain of the year.  The headline “Your vote counts” did not mean that only the reader vote would be taken into account. The Public Advocate said the article should be seen as entertainment rather than serious reporting, and so there was no prima facie case. He also said the complainant’s assumption that the Daily Maverick has a pro-Israel agenda “goes too far”.
13. In his appeal against the decision, the complainant argued that a proper reading of the headline “Your vote counts” indicates the paper was promising to follow the reader vote, rather than the Public Advocate’s interpretation that it did not mean only reader votes would count. He also took issue with the characterisation of the article as entertainment. Why would the editors intervene if the issue was of little importance, he argued, and that the decision indicated an ideological agenda.  He acknowledged the additional example where the editors overruled the reader vote, but said the same argument applies: the reader vote should have been allowed to stand and the editors could have disagreed in a separate article. The fact that the newspaper stated it had decided to override reader choices indicate merely formalistic observation of the code, not the required substantive observation. Finally, he argued that the Public Advocate failed to exercise his role to represent members of the public in this matter and should have taken the complaint more seriously.
14. In their response, the Daily Maverick argued that the supplement was indeed entertainment and commentary; that they are entitled to comment in this form on matters of public interest; that they did not allow non-professional considerations to influence their editorial decisions; and that their headlining and presentation was clear on the nature of the decisions and the reader votes.
15. In a further extensive response, the complainant set out his argument again, highlighting his view that this was not simply entertainment and that the editorial intervention should have been more clearly labelled.  He argued again that creating a moral equivalence between the two winners is incorrect, and that the editors’ decision was an abuse of power over readers who should be taken more seriously. The question of the wider discussion of the article also came up, and the complainant drew attention to the fact that several other critical comments were made on the decision.

Discussion

Acceptance of complaint

16. Since all the usual documents for a complaint have now been submitted, it is not possible to deal with it prima facie and my consideration has to be of the substantial merits of the case. I proceed on that basis.

The complaint

17. I will not discuss the complaint according to specific sections of the press code, as all elements of the complaint arise from one fundamental question: whether the Daily Maverick was entitled to override the vote of its readers on who deserved the title of Villain of the Year, and whether they indicated the nature of the award with sufficient clarity. However, I will refer to the specific sections of the Press Code at the end.
18. It has become common practice for the media to use listings similar to the one at issue to identify noteworthy individuals in the public eye, using various criteria and different selection methods.  Other newspapers have published compilations under such titles as “Power of Women”, “200 Young South Africans”, (both in the Mail & Guardian), “Business Leader of the Year” (Sunday Times) and others.
19. The Daily Maverick has the “People of the Year”, which it has published since 2009.   At first, the selection was made simply by staff, according to the Maverick’s submission, while from 2020 onwards readers were invited to vote on their candidates of choice. The choice of candidates and the final decision has remained with the editors.  The results are presented in a supplement to the print edition and published online.
20. The online sub-site devoted to the project (https://www.dailymaverick.co.za/people-of-the-year-2023/) refers to a “collaborative effort” between staff and readers, and the process is described in more detail in a note on page 2 of the printed supplement. Each entry notes the vote, while in the two cases where the editors overrode the popular decision, this is stated with a brief motivation.
21. The supplement appeared with a front page that graphically illustrated the theme: a photograph of Springbok captain Siya Kolisi, who won approval as the person of the year, was embedded in a thumbs up symbol, while so-called Facebook rapist Thabo Bester and his partner Nandipha Magudumana, who won SA villain of the year, had their picture embedded in a thumbs down.  The front page of the main edition of the newspaper was dominated by a cartoon capturing prominent events of 2023 with the headline “The year that exploded”.
22. I mention the context in which the article appeared as it clearly indicated that the awards should be read as editorial choice and commentary.  The very choice of the term “villain” signalled to readers that the articles should not be read as factual reporting but as a form of commentary.  Having been exposed to exercises in similar formats for some years, readers would not be likely to read the articles simply as news reports of the outcome of a reader vote.
23. The newspaper also took sufficient care to explain its decision-making process.  The only possible point of criticism is that the initial invitation to vote could have made the intended terms clearer.  But this is not sufficient to find the editors in breach on any of the counts listed.
24. Underlying much of the complaint is a strong sense that elevating Hamas leader Mohammed Deif to the same level as Israeli president Benjamin Netanyahu creates a false moral equivalence.  The article’s use of the very brief justification “in the interests of justice” underlines the point.  It is not only the complainant who feels this way, as evidenced by some of the discussion under the article, on social media and elsewhere.   
25. But the crisp question that arises in the context of a complaint to the Press Council system is whether the Daily Maverick was entitled to take the view that it did. It is noteworthy that the newspaper’s submission does not tackle the question of moral equivalence, and it may well not see it in those terms.  It does, however, draw attention to another award that expressed admiration for the “Civilian heroes in the Gaza firing line”.
26. In section 6, the Press Code makes room for member publications to advocate their views strongly on controversial topics, provided they make a clear distinction between reporting and opinion and do not suppress relevant facts.
27. As I have argued, the status of this article as commentary was clear.
28. As for the suppression of relevant facts, part of the discourse on the tragic events in the Middle East centres specifically on the relevance, weighting and truth of particular facts.  This is also part of the complainant’s argument.    However, it is simply not possible to address and resolve these complex and contested matters here. 
29. In addition, the Press Council system should be careful of overreach.  The complainant drew attention to the mandate of the Readers’ Editor at The Hindu, to underline the importance of listening to readers.  The point is well made: it is important to take readers seriously, though editors and journalists, too, have agency.  The interests of readers are served best by editors and journalists empowered to play their role vigorously and effectively.
30.  A recent Reader’s Editor at The Hindu, AS Panneerselvan, wrote in his farewell column in 2021 that his role was not to “undermine journalists working for this paper but to be an effective tailwind that ensures high quality journalism”.  It is an important reminder of the need to understand the limits of bodies that deal with media complaints, though he was writing in a different context. 
31. An adverse ruling is called for in cases of clear breach of the letter and, more importantly, the spirit of the Press Code of South Africa.  Unless there is a very clear case of deliberate suppression of material facts, it cannot be my role to overrule an editorial view of what is and what is not important in the context of editorial comment of this kind. The editors do have the right to take a view.  
32. Through the course of the correspondence, an additional complaint was introduced, around privacy. A brief and apparently mistaken reference was made in the appeal against the Public Advocate’s decision to clause 3.3.1.  Section 3 deals with issues of privacy, dignity and reputation, though the reference was made in the context of the complaint that the article was inaccurate. The respondent pointed out that there is no section 3.3.1, and queried the relevance of privacy. In his rejoinder, the complainant developed an argument that the editors’ decision to ignore readers amounted to disrespect and therefore impinged on their dignity.  The argument is not persuasive and was in any event introduced too late for the respondent to deal with.

Rulings

33. I dismiss the complaint that the Daily Maverick is guilty of breaching clauses 1.1 and 1.2 of the Press Code by not reporting accurately on the outcome of the readers’ vote. The reasons are outlined above.
34. I dismiss the complaint that the Daily Maverick breached clause 6 by not separating reportage from commentary. As argued above, the article was clearly identifiable as commentary.
35. I dismiss the complaint that they are guilty of a lack of independence by furthering a pro-Israel agenda. No evidence of external influence was produced, and the mere fact that some readers read bias into an article does not constitute evidence of external interference.  An editorial decision to handle a matter (like the vote) in a particular way does not constitute interference.
36. I dismiss the complaint that the headline breached clause 10, for reasons explained above.
37. I dismiss the complaint that the article impinged on readers’ dignity.

Appeal

38. 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 [email protected]

Franz Krüger
Deputy Press Ombud
8 March 2024