When held to the purifying flames of common sense, the interpretation of the word ‘harm’ quickly turns to ash.
Former Huffington Post SA editor-in chief Verashni Pillay will apply for leave to appeal the press ombudsman’s hate speech ruling on a blog carried by the publication.
Both the Press Council and Pillay confirmed that an application to appeal would be made on Friday in the former editor’s personal capacity.
“I have apologised for various aspects of the incident, and chose to resign following the ruling. However, I am concerned about the chilling effect this ruling will have on freedom of speech in South Africa, and the freedom to debate difficult topics around race and gender in mainstream publications,” Pillay wrote to the Mail & Guardian in an email.
Press ombudsman Johan Retief ruled in April that Huffington Post SA is guilty of hate speech after it published an opinion piece titled “Could it be time to deny white men the franchise?”. The blog suggested that white men should be denied the vote in South Africa. Retief ruled that the blog violates Section 5.2 of the Press Council’s Code of Ethics and Conduct, which addresses hate speech.
In total, Retief found that Huffington Post SA made four breaches of the press code and is guilty of serious misconduct. Pilllay said she could not answer which of the four breaches her team will challenge, because the submission is still being finalised.
Back-up to Thloloe’s appeal
The hate speech finding was criticised by media professionals, including media law expert Dario Milo, who said “it is wrong, because it doesn’t ‘incite people to cause harm’“.
Pillay’s resignation meant she could not appeal the decision on behalf of the news organisation, according to the Press Council’s complaints’ procedure. Her appeal would have to be in her individual capacity.
Instead, Joe Thloloe, executive director of the Press Council, applied to appeal Retief’s findings on hate speech, saying it is in the public interest. The South African National Editors’ Forum released a statement supporting Thloloe’s bid.
Judge Bernard Ngoepe, chair of the appeals panel, sent the following correspondence to Pillay: “Mr Tlholoe’s locus standi may be challenged by other people. In that event and should the challenge be successful and Mr Tlholoe turns out to be the only one seeking to appeal, the entire appeal would be thrown out.”
Judge Ngoepe told the Mail & Guardian that anyone can appeal a ruling made by the press ombudsman if they can prove that they have been substantially affected by it.
“Anybody who believes they have the right to appeal against part of or the whole ruling, they can do so,” he said.
Ultimately, the applicant lodging the appeal would have to prove that they have the right to appeal based on their motivations for doing so. Once the application has been made, the original complainants in the matter will have an opportunity to comment. The documents are then forwarded to Judge Ngoepe.
The judge has yet to receive any of the documents in Pillay’s appeal as it has not yet been lodged. The original complainants in the Huffington Post SA matter were Christopher McCreanor, Shean King and Ernst Roets, deputy chief executive of AfriForum, a right-wing organisation.
Pillay, who was editor of the Mail & Guardian before moving to Huffington Post SA, said she was appealing the ruling in case Thloloe’s application fails.
“I am not applying for leave to appeal to clear my name or vindicate myself, as I have already acknowledged where I fell short. I am doing it as a back-up in case Mr Thloloe’s application to appeal is unsuccessful. Media24 and Huffington Post South Africa chose to comply with the ruling and did not appeal. I, as do many others, believe an appeal is necessary,” she said.
The blog called hate speech
Section 5.2 of the press code, as quoted in Retief’s judgment, describes hate speech in the following terms:
“The media have the right and indeed the duty to report and comment on all matters of legitimate public interest. This right and duty must, however, be balanced against the obligation not to publish material that amounts to propaganda for war, incitement of imminent violence, or advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.”
In his ruling, Retief said the hate speech section of the code should be read in tandem with its section on discrimination (section 5.2). He quoted the code’s reference to discrimination “as discriminatory or denigratory references to people’s race, gender, etc”.
He concluded that he has “little hesitation” in saying that the blog piece is hate speech, because it was “inflammatory, discriminatory, and targeting a specific group of people”.
“I accept that the text itself did not directly propagate violence – but if the actions it advocates were ever put into practice, they might well lead to just that,” he said.
He also indicted Pillay for her public responses to the attention the blog received, saying they impaired the dignity and reputation of staff at Huffington Post SA.
Ben Winks, an independent legal counsel in constitutional law, is working pro bono on the appeal with Pillay.
After Pillay lodges her application to appeal, the appeals panel will then decide whether her application is accepted. A decision has not yet been made on Thloloe’s bid to appeal.