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 has formerly applied for leave to appeal after press ombud Johan Retief found the Huffington Post SA guilty of hate speech for publishing a blog called “Could it be time to deny white men the franchise?” in April.
The ombud ruled that the blog, which suggests that white men should be denied the right to vote, violated Section 5.2 of the Press Council’s Code of Ethics and Conduct, which defines hate speech.
Pillay is contesting four clauses in her application: clause 5 of the Code (discrimination and hate speech), clause 7 (protected comment), the Preamble to the Code (maintaining credibility and public trust) and clause 3.3 (dignity and reputation.)
Because Pillay resigned from Media24, she could not apply for leave to appeal on behalf of the Huffington Post SA. Joe Thloloe, executive director of the Press Council, also applied for leave to appeal on the press ombudsman’s findings soon after they were released.
Here are the specific arguments Pillay and Tholole have made in regards to each clause:
Clause 5 of the Code (discrimination and hate speech)
Retief said the blog breached clauses 5.1 and 5.2 of the Code on hate speech; clause 5.1 concerns “discriminatory and denigratory” references to people’s “race, gender, sex” among other statuses of identity. Clause 5.2 concerns the “duty to report and comment on all matters of legitimate public interest” that doesn’t “publish material amounting to … incitement of imminent violence, or advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.”
Pillay said in her appeal that the ombudsman failed to identify which references to people’s statuses were “discriminatory and denigratory” in the context of the blog and “whether such references were “strictly relevant” and made “in the public interest”. Because the blog also mentions different groups of people such as “whites”, “males” and “white males”, she argued that the ombud did not specify exactly which remarks were being scrutinised.
She also pointed out that there was a difference between discrimination and differentiation in the context of the blog. Pillay said the blog did not incite hatred against white men but rather “depicts them as disproportionately powerful, economically and politically, and as historically having used that power at the expense of other groups”.
Clause 7 (protected comment)
The ombud found that the blog “was not in the public interest … can be described as malicious – and also that it has not taken fair account of all material facts that are substantially true” in the ruling.
Pillay claimed that the blog was not malicious and was written “on a matter of public interest”, referring to gender and racial inequality. Even though there were inaccuracies in the blog, she said in her appeal that “these were immaterial to the assertion that white men have historically held, and continue to hold, disproportionate economic power” – claims she believed were “at least substantially … true.”
The preamble (public trust)
“Because The Huffington Post and not the writer posted the blog, it was duty-bound to establish Garland’s identity,” the ombud said in his ruling. He claimed that, as a rule, publications such as The Huffington Post SA are not allowed to publish articles under a pseudonym without the writer’s identity.
Pillay argued that there is no rule that prohibits publications from publishing articles under a pseudonym. She agreed that The Huffington Post SA should have taken steps to identify the author, but that there was no definite breach in code.
Clause 3.3 (dignity and reputation)
Due to the breach in the first three clauses, the Retief argued that it impaired “the dignity and reputation of many people in that group [white males]”.
Pillay said in her appeal that the breach in clause was not pleaded by any of the complainants and, therefore, was not able to address the ombud about it. She also argued that this clause only applied to individuals, not specific demographic groups. Besides mentioning United States President Donald Trump and white supremacist Dylann Roof, no specific individuals were attributed in the blog.