Press Council expels SA Jewish Report

First-ever expulsion of a member after refusal to comply with Press Council rulings

The South African Jewish Report has been expelled from the Press Council of South Africa (PCSA) with immediate effect after refusing to obey rulings from the Acting Press Ombud and the PCSA Chair of Appeals, Judge Bernard Ngoepe.

It is the first time that the Press Council has expelled a member.

Press Council Chair Judge Phillip Levinsohn said the decision was taken after lengthy correspondence and after the SA Jewish Report had refused to obey the rulings against it.

"The SA Jewish Report appealed the ruling by Acting Ombud Johan Retief in the complaint, SA BDS Coalition and GIWUSA v SA Jewish Report, but their application for leave to appeal was dismissed by Judge Ngoepe," Judge Levinsohn said. "We spent time and effort corresponding with the SA Jewish Report in an attempt to resolve the issue. They then refused to publish the ruling against them. SA Jewish Report also abandoned a second complaint, SA BDS Coalition vs SA Jewish Report, after losing another application for leave to appeal by Judge Ngoepe."

He added: "The SA Jewish Report then attempted to withdraw from the Press Council rather than publish the rulings. You cannot do that.

"It is a great pity that we have had to expel them, but we cannot tolerate a member of the Press Council wilfully refusing to obey rulings of the Press Ombud and the Chair of Appeals.

"The Press Council is a voluntary, co-regulatory, public-dominated body which, inter alia, mediates and adjudicates complaints against its members in terms of the Press Code.

"It is there to ensure ethical, fair, journalism. Those who join the PCSA commit to being bound by, and to publish, rulings of the Press Ombud and the Press Council's appeals bodies. Parties who are dissatisfied with Press Ombuds' rulings have the right to take them on appeal to our Appeals Panel, headed by an eminent, retired Judge, and if still unhappy can take the process on judicial review.

"What our member publications cannot do is simply refuse to publish rulings against them. Compliance by members is essential. To refuse undermines the Press Council and is unfair to the complainants."

* The PCSA rulings are available at https://presscouncil.org.za/Ruling?page=1 and below:

South African Boycott, Divestment and Sanctions Coalition (SA BDS Coalition) & General Industrial Workers Union of South Africa (Giwusa) vs. South African Jewish Report (SAJR)

Thu, Jan 28, 2021

Particulars

Complaint number: 8403

Complainants: Giwusa, who developed and shared a cartoon in question, and SA BDS Coalition, on whose Facebook page the cartoon was published

Lodged by: Mr Hassen Lorgat, a member of the Palestine Solidarity Alliance, on behalf of the SA BDS Coalition and Giwusa

Date of article: 22 October 2020

Headline: Antisemitic Clover cartoon is BDS’s sour ‘last gasp’

Page: Page one

Online: Yes

Author of article: Tali Feinberg

Respondent: Peta Krost, editor

1.  Complaint  

1.1 The SA BDS Coalition and Giwusa complain that the:

1.1.1 article wrongly labelled them as anti-Semites, following the publication of an “anti-Semitic” cartoon on the former’s Facebook;

1.1.2 statement that Milco SA, Clover’s holding company, did not operate in the occupied territories was false and unverified;

1.1.3 journalist showed her bias by not seeking Giwusa’s views;

1.1.4 headline was misleading; and

1.1.5 publication has not supplemented the article once new information became available.

1.2 Lorgat asks for a harsh reprimand, a retraction of the headline from both the print and online version, and for an apology to Giwusa and the BDS for wrongly portraying them as having been anti-Semitic.

2.  Sections of the Press Code complained about

The media shall:

• 1.1: take care to report news truthfully, accurately and fairly;
• 1.2: present news in context and in a balanced manner, without any intentional or negligent departure from the facts whether by distortion, exaggeration or misrepresentation, material omissions, or summarization;
• 1.3: “… Where a report is … founded in opinion … it shall be presented in such a manner as to indicate this clearly”;
• 1.7: verify the accuracy of doubtful information, if practicable; if not, this shall be stated;
• 1.8: seek, if practicable, 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. Such a subject should be afforded reasonable time to respond; if unable to obtain comment, this shall be stated;
• 1.9: state where a report is based on limited information, and supplement it once new information becomes available; and
• 2.4: keep editorial material clearly distinct from advertising and sponsored events;
• 6.1: “Members are justified in strongly advocating their own views on controversial topics, provided that they treat their constituencies fairly by making fact and opinion clearly distinguishable…”; and
• 7.2: Comment or criticism is protected even if it is extreme, unjust, unbalanced, exaggerated and prejudiced, as long as it … is presented in a manner that it appears clearly to be comment.”

10.1 Headlines … shall not mislead the public and shall give a reasonable reflection of the contents of the report or picture in question.

3.  The text

3.1 Following the publication of a cartoon on the SA BDS Coalition Facebook page, the SA Jewish Report reported on the matter. The cartoon was about a labour dispute at Clover Dairy.

3.2 As an introduction, Feinberg wrote that the BDS movement “has always insisted that it isn’t antisemitic, but the newly-formed SA BDS Coalition … showed its true colours this week by posting what clearly looks like an antisemitic cartoon on its Facebook page”.

3.3 She then puts context to this matter: “The cartoon was posted to encourage South Africans to boycott Clover Industries after about 2 000 workers at the dairy company went on an indefinite nationwide strike. It depicts a greedy, overweight giant of a man eating a pile of money while the “man on the street” is drawn as a small, insignificant figure sitting in front of an empty plate. The image of a Clover product fills the rest of the frame.”

3.4 The reporter cites the following caption on SA BDS Coalition’s Facebook: “Greedy bosses connected to apartheid Israel. Blood curdling milk [and cheese, yoghurt, etc.]. Every reason to boycott Clover! Change your brand. Viva GIWUSA … and the struggle for a living wage!”

3.5 Feinberg also cites SA BDS Coalition’s Facebook where it says that Milco operated in the occupied territories – a statement that the journalist contests.

3.6 She added, “Antisemitism expert and emeritus professor of history at the University of Cape Town, Milton Shain, confirmed that the cartoon was antisemitic, tying into classic tropes of Jews being obsessed with money, being greedy, exploiting the worker, and having sinister control over the world. He said that while the SA BDS Coalition was calling for a boycott of Clover products because of the Israeli connection, in this image, the Israeli and the Jew are shown to be one and the same.”

3.7 She also included the SA BDS Coalition’s denial that the image used was anti-Semitic: “…we are very concerned at the SA Jewish Report’s assumption that the portrayal of a greedy capitalist is a portrayal of a Jew. Insinuating that any fat capitalist is Jewish is, without question, an antisemitic assumption!”

4.  The arguments

4.1 Let me say, up-front, that I have ignored all arguments that take the complaint further than it should. I am referring to statements about the state of (“apartheid”) Israel, and all references to international bodies. The same goes, amongst others, for the legal position of Milco, Prof Milton Shain’s credibility, and the distinction between anti-Semitism and anti-Zionism.

4.2 Publishing ‘anti-Semitic’ cartoon

4.2.1 The complainants say the article wrongly labelled them as anti-Semites apropos the publication of an alleged anti-Semitic cartoon on SA BDS Coalition’s Facebook page.

4.2.2 Hassen Lorgat denies the cartoon was anti-Semitic, adding that:

• Feinberg’s letter to Mr Omar Barghouti of SA BDS Coalition revealed she accepted that the cartoon was anti-Semitic (see the relevant correspondence below, under Sub-section 4.4.14);
• all persons interviewed, as well as those excluded from being interviewed in the story, stated in various ways that the cartoon was not anti-Semitic;
• Giwusa also denies this;
• BDS asserted in the story that, “SA Jewish Report’s assumption that the portrayal of a greedy capitalist is a portrayal of a Jew. Insinuating that any fat capitalist is Jewish is, without question, an antisemitic assumption!”;
• Feinberg’s “handpicked Zionist intellectuals”, quoted as experts and representative of the Jewish community, initially pointed out that the cartoon was not at face value anti-Semitic. These are:
• Shain, who reportedly said: “While it isn’t an obvious representation of a Jewish capitalist…”; and
• Mr David Saks, National Associate Director of the South African Jewish Board of Deputies: “The cartoon itself doesn’t have stereotypical antisemitic features…”

4.2.3 He concludes that the SA BDS Coalition and the BDS National Committee (BNC) have a strong stance against any form of racism and prejudice, including any form of anti-Semitism.

4.2.4 Peta Krost says the report on the posting by the SA BDS Coalition of the cartoon falls within the parameters of news and is protected by Section 16 of the country’s Constitution.

4.2.5 She submits it is against the background of these constitutional considerations of free speech and its specific limitations that this complaint should be considered. “Selective and discrete allegations of breach of the Press Code need to be considered within the context of the constitutional guarantee of freedom of the press to present expert opinion and to report on the opinions of experts and office holders.”

Analysis

4.2.6 Anti-Semitism is widely accepted to mean hostility to, prejudice, or discrimination against Jews. (Anti-Zionism is aimed at the state of Israel.)

4.2.7 Putting the headline aside for the moment, the question is whether the article portrayed the cartoon as anti-Semitic – and if it did, if it was reasonable to do so.

4.2.8 I note Lorgat’s argument that other people and institutions did not view the cartoon as anti-Semitic (while others do).

4.2.9 Assessing the cartoon in isolation, surely it cannot be said to be anti-Semitic. Feinberg, in her article, correctly described the cartoon in her reportage as depicting “a greedy, overweight giant of a man eating a pile of money while the ‘man on the street’ is drawn as a small, insignificant figure sitting in front of an empty plate. The image of a Clover product fills the rest of the frame.” It does not contain any reference to either Jews or to Israel.

4.2.10 Clearly, the answer lies elsewhere, namely in the contexts of the text in Facebook, as well as in Feinberg’s article. In other words: The contexts will determine the meaning of the cartoon.

4.2.11 Firstly then, the Facebook text: According to the article, this text was accompanied by the caption, “Greedy bosses connected to apartheid Israel. Blood curdling milk [and cheese, yoghurt, etc.]. Every reason to boycott Clover! Change your brand. Viva, GIWUSA … and the struggle for a living wage! Clover was recently permitted by the Competition Commission and the department of trade and industry to be owned by Central Bottling Company (CBC), in turn owned by Milco, an Israeli concern operating in the Occupied Territories. The unions and Palestine solidarity organisations jointly submitted objections to the Competition Tribunal. Our objections were ignored.”

4.2.12 Lorgat does not deny this. I therefore accept that this text indeed appeared on the Facebook page.

4.2.13 So then, Lorgat has a point. Note that the Facebook text starts by saying, “Greedy bosses (my emphasis) connected to apartheid Israel” (my emphasis). The focus is on “greedy bosses”, who are connected to Israel – in other words, who are not Israeli or Jewish themselves. For him, the money-eating man in the cartoon depicts a greedy, non-Jewish boss.

4.2.14 On the other hand, though, the words “connected to Israel” may lead some to interpret the cartoon in the context of “apartheid Israel” – readers were encouraged to boycott Clover because of its ties with “apartheid Israel”. The term “apartheid Israel” is indeed an emotive one.

4.2.15 From this perspective, Krost also has a point. I do believe that the Facebook text, plus the cartoon, could also reasonably be interpreted as having been hostile towards Israel/Jews. It really all depends from which vantage-point one looks at it.

4.2.16 This brings me to the extra-ordinary conclusion that both parties can be right. This means that I accept Lorgat’s argument that the complainants are against all forms of racism, including anti-Semitism – but I also accept that Feinberg’s interpretation of the matter, from her vantage-point, is reasonable.

4.2.17 Which party interpreted the situation correctly (if at all there is such a thing as a “correct interpretation”), is of no concern regarding in this adjudication.

4.2.18 This takes my memory back to the time when I studied philosophy at university. The professor was fond of saying that the truth is like a diamond – it is there, but it depends on one’s perspective what colour of the stone you see. To one person, the diamond may seem to be red, to the other it is blue. The one looks from the east, the other from the west.

4.2.19 I now turn to the article in dispute: One relevant statement in this regard is that the SA BDS Coalition “showed its true colour this week by posting what clearly looks like an antisemitic cartoon on its Facebook”. At this (early) stage in the article, it is not yet clear if the journalist portrayed the cartoon as anti-Semitic. There is a difference in meaning between “looks like”, and “is”. But the hint is there – and strongly so.

4.2.20 So, read on. Further down the story Feinberg quoted that Shain “confirmed” that the cartoon was anti-Semitic. This is rather a strong word. The sub-text behind the use of this word is: “See, I told you so”.

4.2.21 This, together with the headline (see Section 4.5 below), as well as Feinberg’s questions posted to the SA BDS Coalition (see Sub-section 4.4.14 below), leave me with the conviction that Feinberg indeed meant to portray the cartoon as anti-Semitic. In fact, when it comes to the words “Anti-Semitic Clover cartoon” in the headline, she argues that the headline constituted a reasonable reflection of the contents of the article. This can mean only one thing – she meant to portray, as fact, that the cartoon was anti-Semitic.

4.2.22 The question is if the journalist was justified in doing so.

4.2.23 Let me be crystal clear on this issue – Feinberg has all the freedom in the world to interpret the cartoon in whichever way she sees fit; she also has the freedom to put pen to paper. The editor is correct in that Section 16 of the Constitution of this country guarantees that freedom; and so does the Press Code (in its preamble). But there is a condition – an important one, at that. It should be clear that her opinion is just that – an opinion.

4.2.24 The question, therefore, is not if Feinberg was wrong by interpreting the cartoon as having been anti-Semitic (she was free to do so) – the question is how she presented it.

4.2.25 Let’s look at the various relevant sections in the Press Code:

• 1.3: “… Where a report is … founded in opinion … it shall be presented in such a manner as to indicate this clearly”;
• 2.4: “The media shall keep editorial material clearly distinct from advertising and sponsored events;
• 6.1: “Members are justified in strongly advocating their own views on controversial topics, provided that they treat their constituencies fairly by making fact and opinion clearly distinguishable…”; and
• 7.2: Comment or criticism is protected even if it is extreme, unjust, unbalanced, exaggerated and prejudiced, as long as it … is presented in a manner that it appears clearly to be comment.”

4.2.26 This leaves me with only one option: Feinberg presented her opinion as fact – in a news report (and in the headline – see Section 4.5 below).

4.3 Milco

4.3.1 Feinberg stated in the article, “… the caption [in the Facebook text] is misleading in that Milco SA doesn’t operate in the Occupied Territories.”

4.3.2 Lorgat denies this.

4.3.3 He submits that the:

• South African witness Ms Sydda Essop confirms that she was present and witnessed Milco first-hand operating from the occupied territories, especially in Hebron Hills; and
• website https://whoprofits.org/about-who-profits/ confirms this. He says they were founded in 2007 as a project of the Coalition of Women for Peace and became an independent Research Centre in 2013. Their objective is to address the issues of the Israeli occupation and maintaining a data base of corporations that are complicit with occupation. This website, he argues elaborately, confirms his view on this matter.

4.3.4 In conclusion, he argues that the reporting was inaccurate, unbalanced and unverified.

4.3.5 Krost says the article made it clear that Milco SA was a consortium that was created to acquire Clover. “Milco SA is a South African entity. Milco became the owners of Clover in SA in 2019 with the permission of the competition authorities. It is simply an acquisition vehicle created by various partners to acquire Clover. There is no Milco entity in Israel that is in any way related to Clover. The company is registered in SA. Thus it is an accurate statement of fact that Milco does not operate in the occupied territories.”

4.3.6 Importantly, she adds, these facts concerning Milco and its operations were presented to the competition authorities by way of evidence under oath in the relevant proceedings reflected in the article. These authorities accepted those facts and rejected the objections, including by certain Palestinian solidarity groups. “While these groups have indicated that they are seeking to review the competition authorities’ decision to authorise the transaction concerned, that decision stands unless and until it is set aside,” she says.

4.3.7 Similarly, the factual submissions which were accepted by the competition authorities, and on which the decision to authorise the transaction was based, stand.

4.3.8 The editor concludes: “The facts on which [the reportage] is based are demonstrable and have been accepted in legal proceedings on the basis of evidence on oath. While those findings are subject to review, the findings stand until they are set aside. The Office of the Press Ombudsman does not have facts before it, nor a basis to contradict those findings of fact, in particular regarding the sphere of operations of Milco.”

4.3.9 Citing some international organisations, Lorgat argues: “We thus reiterate that Milco is in violation of international agreements on human rights by trading / operating from occupied territories.”

4.3.10 He quotes elaborately from this website mentioned above and submits that it confirms his view on this matter.

Analysis

4.3.11 The bone of contention here is the question whether Milco SA operates in the occupied territories or not – the publication says it does not; the complainants say it does. Each party puts forward some sort of evidence to substantiate its case.

4.3.12 The following statement by Krost hits bull’s-eye: “The Office of the Press Ombudsman does not have facts before it, nor a basis to contradict those findings of fact, in particular regarding the sphere of operations of Milco.”

4.3.13 Surely, this office has no mandate to rule on who is right and who is wrong on this issue. On this matter I am therefore not in a position to make a finding.

4.4 Biased; not seeking Giwusa’s views

4.4.1 Lorgat says Feinberg did not seek Giwusa’s views, which she should have “as they were the original publishers of the cartoon”. He argues that the editor was not truly interested to know who drew the image and for what purposes, as anyone interested would have started with the union leaders who were tagged in the post.

4.4.2 He adds that, if the intention was to talk about unions and the strikes, at least the journalist should have had the decency to talk with them. He concludes, “By playing to the papers’ supporters and not seeking independent scholastic opinions on racism, the paper violated the spirit of [Section] 2.4 of the Press Code”. This section requires the media to clearly distinguish between editorial material and “advertising and sponsored content”.

4.4.3 Krost points out that the article itself records that the SA BDS Coalition disputes the view – therefore, the views of the coalition were sought and included in the article.

4.4.4 She says the argument that she should have sought the views of Giwusa because the cartoon was first conceptualised and drawn by the union, is “risible and demonstrably untenable” – the article was about the decision of SA BDS coalition to publish the cartoon and caption. She says it does not matter who else may have published the cartoon or who may have drawn it – the fact is that BDS chose to publish it, disseminate it, and align itself with it.

4.4.5 For that reason, she says she asked SA BDS Coalition for comment, and not Giwusa.

4.4.6 Lorgat replies he is unclear whether the article was an opinion piece, news, feature or some other category. (I interpret this to mean that, initially, he was unsure, as down below he motivates his interpretation that the text was a news piece and not an editorial).

4.4.7 “Either way, the newspaper failed to inform its readers. They did not expand their information base by telling them more about the strike and the parties involved, in particular the union GIWUSA. If they had indeed interviewed the union, it would have provided context about the strike and their use of cartoons, if that was their interest. As indicated in our complaint that this was intended as a lead story, and was run on the front page of the edition in question.”

4.4.8 He adds the rush to publish was a rush to judge the BDS.

4.4.9 He quotes Feinberg’s questions to BDS activists to prove his point. (See those questions directly below, under Sub-section 4.4.14)

4.4.10 He argues that, even the hand-picked commentators / experts were at pains to conclude that the cartoon was anti-Semitic – Shain says, “… while it isn’t an obvious representation of a Jewish capitalist…”; and Saks: “The cartoon itself doesn’t have stereotypical antisemitic features…”

4.4.11 He reiterates that, because Feinberg should have asked Giwusa for its views on the Clover workers’ strike, as well as “the cartoon and other issues of wider solidarity”.

4.4.12 “We believe the criticism of the BDS and the union is aimed at stopping criticism of the racist policies of the Israeli regime,” he concludes.

Analysis

4.4.13 On October 20, Feinberg emailed the SA BDS Coalition. In this correspondence, she says she saw the cartoon on the latter’s Facebook page, informing them that she would be writing about it for the SA Jewish Report newspaper.

4.4.14 This is what she wrote:

 I wanted to ask you for comment.

Antisemitism expert Professor Milton Shain has confirmed the image is antisemitic, tying into classic antisemitic tropes of the Jew being obsessed with money, being greedy, exploiting the worker and having sinister control over the world. He notes that while the BDS Coalition is calling for a boycott of Clover products because of the Israeli connection, in this image the Israel and the Jew are shown to be one and the same.

I wanted to ask the following questions:

1. Did the SA BDS Coalition know that this image is antisemitic and why did it choose to post it?
2. What is the SA BDS Coalition's policy on antisemitism?

3. Omar, does the international BDS Coalition support an antisemitic image being posted by one of its affiliate organisations, and why / why not?

4. Who made the cartoon and what prompted them to make it?

5. You have many Jewish allies, and Ronnie you are Jewish. What would you say to Jews who might feel offended by the image?

6. Anything you would like to say to the SA Jewish community or add.

Please can you respond in writing or over the phone by noon tomorrow (21 Oct), South African time, as we go to print tomorrow afternoon.

4.4.15 Those were pertinent questions, and she published some pertinent responses to her enquiry. So far, so good.

4.4.16 The question is whether she also should also have asked Giwusa, the creators of the cartoon, for a response.

4.4.17 I note that, each time Givusa was mentioned in the article (there are four references to the union), it was in the context of a strike – and certainly not the cartoon. Therefore, I do not see any necessity for seeking Giwusa’s views. It really is irrelevant who created the cartoon – it is all about the institution that published it. On this issue, the complaint has no leg to stand on.

4.4.18 Lorgat raised several issues about the alleged racist conduct of Israel against the Palestinians. I have not documented his views on this matter, as it far exceeds the parameters of this complaint.

4.5 Headline misleading

4.5.1 Referring to the words “antisemitic Clover cartoon” in the headline, Lorgat complains that this presented an opinion as fact.

4.5.2 Interestingly, he adds, only Shain’s comment regarding a “last gasp” was put in inverted commas, whilst the rest of the headline was presented not as opinion, but as fact. “By doing so, the story purports to be news and thus factual, but in reality is opinion constructed upon unfounded and shaky foundations,” he submits.

4.5.3 Krost denies that the headline was misleading as it constituted a reasonable reflection of the contents of the report.

4.5.4 She argues, “Whether or not the complainants agree with the expert’s opinion is irrelevant, the issue is whether the headline reasonably reflects the content of the article which accurately reflects Prof Shain’s opinion that the cartoon is antisemitic. The heading accurately and reasonably reflects this expert view.”

4.5.5 The editor adds that the quotation marks in the headline referred to a quotation from Shain (as reported in the article). The rest of the headline, by contrast, is a summary of Shain’s opinion. The full opinion cannot be quoted in the headline because then it would not be a headline – by definition, a headline is a summary.

4.5.6 “The headline of the article is accurate and is a reasonable reflection of its content. The headline cannot be expected fully to reproduce the content as it would then not be a headline,” Krost concludes.

4.5.7 Lorgat replies the headline only put the words “last gasp” in inverted commas – “thus it is clear that the newspaper passed off the comments of the supposed expert as theirs. It was no longer an opinion – it became a “fact”.

4.5.8 What is at issue, he submits, is the labelling of the BDS movement as antisemitic. “These labels carry no quotation marks, setting the scene or reflecting the tenor of the article, which intended from the start to label the BDS as antisemitic – something Ms. Krost’s reply is silent on,” he adds.

4.5.9 He then goes on to discredit Shain’s credibility.

Analysis

4.5.10 Both parties (once again) argue the merits of the statement that the cartoon was anti-Semitic. I have ignored those arguments, as the only issue here is the question if the headline was in breach of the Press Code, or not.

4.5.11 Section 10.1 of the Press Code is relevant in this regard. It reads, “Headlines … shall give a reasonable reflection of the contents of the reports in question.”

4.5.12 Krost argues that the headline indeed reasonably reflected the content of the article. I accept that to be the case – which means I cannot find that the publication was in breach of Section 10.1 of the Code.

4.5.13 But more needs to be said – because, yet again, the headline should have made it clear that this was someone’s opinion, and not a fact. This, the publication did not do – there was no indication that the text was an editorial, or an opinion piece. This was hard news, published on the front page.

4.5.14 I accept that the reference to “last gasp” in the headline referred to a statement made by Shain, as reported in the article.

4.6 Not supplemented

4.6.1 Lorgat complains that Feinberg violated Section 1.9 of the Press Code, which deals with a news report based on limited information, supplementing it once new information becomes available.

Analysis

4.6.2 The complainant does not point out which “new information” he refers to. It follows that I could not find for him on this issue.

5.  Finding

5.1 Publishing ‘anti-Semitic’ cartoon

The publication was in breach of the following sections of the Press Code:

• 1.3: “… Where a report is … founded in opinion … it shall be presented in such a manner as to indicate this clearly”;
• 2.4: “The media shall keep editorial material clearly distinct from advertising and sponsored events;
• 6.1: “Members are justified in strongly advocating their own views on controversial topics, provided that they treat their constituencies fairly by making fact and opinion clearly distinguishable…”; and
• 7.2: Comment or criticism is protected even if it is extreme, unjust, unbalanced, exaggerated and prejudiced, as long as it … is presented in a manner that it appears clearly to be comment.”

5.2 Milco

There is no finding on this part of the complaint.

5.3 Biased; not seeking Giwusa’s views

This part of the complaint is dismissed.

5.4 The headline

The publication was in breach of the same sections of the Press Code referred to under Sub-heading 5.1 above.

5.5 Not supplemented

This part of the complaint is dismissed.

6.  Sanction

6.1 South African Jewish Report is directed to apologise to the SA BDS Coalition for portraying both in the headline and in the story, as fact, that the cartoon was anti-Semitic – and, in this process, labelling them as anti-Semites or being anti-Semitic.

6.  The newspaper is directed to publish the apology, as outlined directly above:

0.  in the form of a teaser on the front page of its printed version, with a headline containing the words “apology” or “apologises” and the name of the SA BDS, with a continuation on an inside page reference to the complainants; and

1.  online (at the top of that page), and to link the two articles.

6.3 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.

6.4 Please note that the apology should only go to SA BDS Coalition, and not to either Lorgat (who complained on its behalf) or Giwusa (that was mentioned in the article in connection with a strike, but never in connection with the cartoon).

7.  Appeal

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].

Johan Retief

Acting Press Ombud

Appeal Decision: South African Jewish Report vs Lorgat Hassen

8 March 2021

In the matter of

SOUTH AFRICAN JEWISH REPORT APPLICANT

AND

LORGAT HASSEN RESPONDENT

MATTER NO: 8403

DECISION ON AN APPLICATION FOR LEAVE TO APPEAL

1. South African Jewish Report (“applicant) seeks leave to appeal a Ruling by the Press Ombud dated 28 January 2021. It was a Ruling on a complaint lodged by Mr Hassen Lorgat (“respondent”) of the Palestine Solidarity Alliance on behalf of the South African Boycott Division and Sanction (BDS) Coalition and a labour union GIWUSA.
2. The Competition Commission and the Department of Trade and Industry gave approval for the taking over of Clover by the Israeli Central Bottling Company which was in turn owned by another Israeli company known as Milco. SA BDS and GIWUSA were opposed to the takeover. There was a long strike by members of GIWUSA and, in response to the approval of the takeover, GIWUSA came up with a cartoon which accompanied a Facebook text of SA BDS. The cartoon depicted the head of an apparently huge person stuffing his mouth with banknotes with the picture of a small person sitting next thereto with an empty plate. The message was obvious. To briefly contextualize the dispute: SA BDS runs a campaign against the occupation by Israel of areas that SA BDS believes belong to the Palestinians; as a result, it runs amongst others a campaign to boycott Israeli produce from such areas. In their view Milco operated in occupied territories. GIWUSA too also opposed the proposed take-over which it felt would not be in the interest of the workers; hence the cartoon. The rest of the cartoon was filled with a Clover product.
3. In response to the cartoon, the applicant published an article on 22 October 2020 with the headline “Anti-Semitic Clover cartoon is BDS’s sour ‘last grapes’”. The accompanying article said amongst others that the cartoon was posted to encourage South Africans to boycott Clover Industries. It also disputed the fact that Milco operated in occupied territories. After the publication of the article, the respondent and GIWUSA lodged a complaint against the applicant about the headline and the article. They argued that both the headline and the article accused them of being anti-Semitic, and alleged that several articles of the Code were breached. In his Ruling, the Ombud accurately summarized the complaints as follows:

“1.1 The SA BDS and Giwusa complain that the:

1.1.1 article wrongly labelled them as anti-Semites, following the publication of an ‘anti-Semitic’ cartoon on the former’s Facebook;

1.1.2 statement that Milco SA, Clover’s holding company, did not operate in the occupied territories was false and unverified;

1.1.3 journalist showed her bias by not seeking Giwusa’s views;

1.1.4 headline was misleading; and

1.1.5 publication has not supplemented the article once new information became available.

1.2 Lorgat asks for a harsh reprimand, a retraction of the headline from both the print and online version, and for an apology to Giwusa and the BDS….”

4. As the Ombud correctly puts it, anti-Semitism “is widely accepted to mean hostility to, prejudice, or discrimination against Jews”. The ultimate question was always going to be whether the applicant’s article with or without the headline, correctly labelled the cartoon as anti-Semitic, or whether the headline alone did so. The Ombud was of the view that the cartoon should not be viewed in isolation but with reference to the context of the respondent’s Facebook as well as the applicant’s article.

But the applicant’s description of the cartoon does not go anywhere near connecting the cartoon to either Jews or Israel. Turning to the respondent’s Facebook text, the high watermark of the applicant’s case are the words in the caption which read “Greedy bosses connected to apartheid Israel”. The focus is indeed on “greedy bosses”.

But they may not necessarily be Jews; they may be anybody else. The description “connected to Israel” is also non-specific; a non-Jew may be connected to Israel. The problem is that the applicant presented it as a fact that the cartoon and the text were anti-Semitic, not as an opinion. It must be patently obvious that the cartoon alone does not necessarily denote Jewish people or Israel. Well, respondent’s Facebook does not take the matter any further, nor does the reading of applicant’s article. That must be the end of the matter.

5. Submissions by the applicant in its application do not take the matter any further. The contents of the respondent’s Facebook text, as well as those of the applicant’s article, speak for themselves; so too the cartoon.

6. In coining its grounds of appeal, the applicant embarked on a hair splitting exercise. It argued that the Ruling found breach of certain clauses that had not been relied upon by the respondent. Related to this argument, is the one that the applicant was not given the opportunity to respond to those charges, which, it claims, constituted a new case. The respondents contest the two arguments. They have no merit. The office of the Ombud receives complaints from complaints most of who are not lawyers and who sometimes do not even quote individual or relevant sections of the Code, yet convey the substance of the complaint in a clear manner.

They need not cite precise sections of the Code in correlation to their complaints; all they need to do is to present a clear complaint. Would one dismiss a case for lack of citation of a specific section of the Code, or a wrong citation, despite the facts relied upon being clear? At any rate in the present case, who, reading the complaint, can be in doubt as to what the complaint is, namely, that both the headline to its article and the article itself wrongly accused the complainants of being anti-Semitic?

This was the charge the applicant was aware of at all times, and this was the charge to which it devoted time and energy to contest, and, let it be added, vehemently so. Substantive and comprehensive submissions were made in support of, and against, the charge by the parties, followed by a thorough analysis and consideration by the Ombud.

At no stage did the Ombud wonder out of the facts placed before him, nor is any finding of breach based on any such (extraneous) facts. At all material times the applicant knew not only the substance of the complaint, but its nature and ambit. Ample opportunity was given to the applicant to make representations which, as already mentioned, did so comprehensively.

The two grounds of appeal have no substance. The third ground has already been disposed of above, namely, that the applicant did state as a fact that the complainants were anti-Semitic. What is stated as a fact cannot be turned into an opinion, or anything else, by views expressed by so-called experts’, even less so if they are not category in their views, and worse still contradicted by others – all of which was the case in the present matter. The Ombud’s view that the charge was stated as a fact was therefore correct.

7. For the reasons given above as well as those by the Ombud, I am of the view that the applicant has no reasonable prospects of success on appeal. Regarding an appeal against the sanction imposed by the Ombud, there are also no reasonable prospects that the Appeals Panel would consider it to be so severe as to warrant interference. The accusation of anti-Semitism is a serious one, and may not be taken lightly. The application for leave to appeal is therefore dismissed.

Dated this 8th day of March 2021

Judge B M Ngoepe, Chair, Appeals Panel

Issued by Latiefa Mobara: Executive Director of the Press Council of SA, 27 May 2022