Press Ombudsman orders TimesLIVE to give correct account of facts

Opinion pieces must take fair account of all material facts, Ombud asserts. Illustration: Lisa Nelson

Awkward. That’s the fashionable term when faced, as this commentator is, with writing a column on the outcome of a complaint to the Press Ombud lodged by the very publication that is to publish the column in question.

And awkward it is to analyse a recent ruling that concerns a complaint lodged by GroundUp and its editor, Nathan Geffen, in respect of an article published by TimesLIVE, and written by its editor, Makhudu Sefara.

But the purpose of this column is “to bring Press Ombud rulings to a wider audience and to give more public scrutiny to the rulings”. In order to achieve this purpose, this commentator cannot shy away from rulings that concern GroundUp, whether as complainant or respondent, and regardless of outcome. So with that out of the way, let’s dig in. Buckle up; it’s going to be a bumpy ride!

On 6 February 2024, Sefara published an article titled Ray Joseph and GroundUp’s unethical pursuits and the journalism of suppositions. Part chronological record, part opinion, and part hearsay, the article goes back five years to an allegation that Joseph (a freelance journalist who writes for GroundUp from time to time) had verbally abused a junior reporter at Sunday World who had contacted him for comment on a piece she was writing about the National Lotteries Commission (NLC).

At that time, Joseph had been investigating and writing on the NLC for about three years, focused on allegations of widespread corruption and incompetence.

The article, later published by Sunday World and titled “Lotteries body at odds with journo”, reported that the NLC had lodged a complaint with the South African National Editors’ Forum accusing Joseph “of writing scathing stories about them after it stopped funding an NGO of which he was once a director.”

Three months later, Geffen published an article in GroundUp titled Does Sunday World want to do journalism or be a defender of corruption?, which took issue with what he perceived to be a malicious attack on Joseph. In his impugned article, Sefara states that “[t]he story was said to have been written by Nathan Geffen”, identifies Joseph as its true author, and characterises it as “a story on Sunday World receiving adverts [from the NLC] in return for puff pieces as news when … [he] was editor”.

Sefara’s account is presented as background to what appears to be the focus of his story: that GroundUp’s “anger at being ‘banned’, such as it is, on TimesLIVE, has driven their unethical pursuit at reinstatement.”

The alleged “banning” was a decision taken by Sefara, as editor of TimesLIVE, not to carry any GroundUp stories following the latter’s alleged failure properly to explain what had led to one story – published in December 2020 – having to be withdrawn.

Sefara’s account about what happened at that time, which is set out below, was the subject of Geffen’s and GroundUp’s complaint to the Ombud:

“In December of 2020, I was asked to unpublish a story that was supplied by GroundUp which was false. I asked, why did they send a false court story? Was their reporter not in court? Naturally, I wanted to know what went wrong so this was not repeated.

The response was flippant: ‘The reporter is on holiday, we will revert in January’ is the summary. I believed this to be unreasonable. I had not asked for the reporter’s leave to be cancelled. All they had to do was to ask the reporter to take five minutes to explain, so they could explain to us. But no, TimesLIVE must just unpublish the falsity and wait until after the December 2020 holidays.”

GroundUp’s complaint alleged breaches of three clauses of the Press Code: clause 1.1, which requires the media to “take care to report news truthfully, accurately and fairly”; clause 1.3, which imposes an obligation on the media to “present only what may reasonably be true as fact”, with opinions, allegations, rumours and/or suppositions having to “be presented clearly as such”; and clause 7.2, the so-called safe harbour provision, which effectively recognises the common law defence (to defamation) of protected comment.

Two issues appear to have been at the core of the complaint: first, the characterisation of GroundUp’s response to TimesLIVE as being “flippant”; and second, the summary of the response: “The reporter is on holiday, we will revert in January.” The narrowness of the complaint is, however, not at all clear, given the breadth of issues addressed in the ruling. For example, the ruling suggests that one basis for the complaint was the allegation that the withdrawn GroundUp story was false. (This basis was not upheld.)

On the use of the word “flippant”, the Ombud held that “[a] reasonable reader reading the particular paragraph would not, in … [his] view, be confused that it is Sefara’s view or opinion that GroundUp was ‘flippant’.” So far, so good. But then, in addressing the alleged factual basis of the opinion, the ruling goes somewhat awry, with the Ombud finding that the “summary” of the GroundUp response Sefara received from one of his new editors was “substantially true”.

But Sefara’s account of what happened bears little resemblance to what actually appears to have happened. In his initial email to TimesLIVE on 22 December 2020, which is quoted in the ruling, Geffen stated:

“Huge apologies. We made a mess of this story. There is no way to correct it. It simply has to be retracted.

“There is no court order. There was a notice of motion but no evidence that the court granted the order. I’m afraid we were misled by one of the sources, but the fault is very much ours.

“Sorry, in the new year, when we return to work, we’ll look into why our systems broke down and this story got through.”

Sefara says that he asked his “news editors to request GroundUp for an immediate explanation”, and was told by one of them that “the explanation could only come after the holidays because the reporter who got the story wrong was already away on holiday.” (When a follow-up to GroundUp was eventually made, on 18 January 2021, Geffen provided an explanation the very same day. As the Ombud notes, Sefara makes no mention of this fact.)

To take advantage of the safe harbour provided by clause 7.2, an opinion must have “taken fair account of all material facts that are either true or reasonably true”. But none of the detail of Geffen’s email was even mentioned in the impugned piece. Instead, the reader was simply left with the impression that GroundUp did no more than kick for touch, giving a “trust me bro” response as a basis for pulling the piece. Sefara’s opinion on the response being “flippant” was thus based on a mischaracterisation of the facts.

The ruling upheld GroundUp’s complaint in respect of one clause of the Press Code. The Ombud finds that the piece as a whole, which he correctly characterises as opinion, does not take fair account of all material facts, as required by clause 7.2, and accordingly, cannot rely on that safe harbour clause:

“The fact that GroundUp did revert – albeit after a follow-up from TimesLive – with a detailed explanation, is a very material fact in the context of the opinion piece. A reasonable reader is left with the impression that, to this day, there has been no explanation from GroundUp. GroundUp is avoiding providing an explanation but is instead trying to circumvent Sefara’s authority as editor through other means to ‘lift the ban’, so to speak.”

“In the context of Sefara’s opinion piece, it matters a very great deal whether GroundUp offered an explanation or not. It informs readers to agree or disagree with the views expressed by Sefara.”

“Stating to readers that no explanation was provided,” the Ombud holds, “is a factual assertion within the opinion piece which stands to be adjudged as factual reporting regulated by clause 1. … The publication made an incorrect factual assertion. It is in breach of clause 1.1. of the Press Code.” And to remedy this “Tier 2 (serious) breach”, the Ombud orders TimesLIVE to update the article online, “briefly set out GroundUp’s explanation”, and record that the update was made pursuant to an Ombud ruling.

Interestingly, the ombud didn’t ask for an apology in respect of the established breach of clause 7.2. In previous decisions, such breaches have often been met with demands for apologies. That said, Ombud decisions have been inconsistent on this issue.

With this in mind, I would have expected the ombud to explain why an apology was not ordered, if one had indeed been requested. And if an apology was not requested, the ombud should have said so.

TimeLIVE has asked for leave to appeal the ruling. This article will be updated with the outcome.

The Ombud Watcher columns are written by a lawyer with expertise on the Press Code. GroundUp’s editor takes responsibility for its content. (Incidentally, an apology was not sought by the GroundUp editor when the complaint was lodged.)

More about National Lotteries Commission

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• Goldrush-backed consortium announced as next lottery operator 28 May 2025
• Lottery sales will stop on Sunday unless court order is changed, says NLC 28 May 2025

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