Embassy and Ambassador of Russia to South Africa vs Daily Maverick

Tue, Oct 10, 2023

Ruling by the Press Ombud

Date of article: 14 May 2023

Headline of publication: “On this day, let’s remember the mothers of Ukraine who move mountains to protect their families”

Author: Liubov Abravitova (Ambassador of Ukraine to South Africa)

Mikhail Kosarev, Press Attaché of the Embassy of Russia in South Africa, lodged a complaint on behalf of the Embassy and Ambassador of Russia to South Africa against an opinion piece published by the Daily Maverick.

The opinion piece was authored by Liubov Abravitova, Ukrainian Ambassador to South Africa.

Branko Brkic, Editor-in-Chief of Daily Maverick, responded to the complaint.

The complaint

Ukraine’s ambassador to South Africa, Liubov Abravitova (“Abravitova”), wrote an opinion piece with a Mother’s Day theme. It appeared under the “Opinionista” section of Daily Maverick and was labelled as such. Abravitova’s official title is reflected right at the top of the piece.

In an article of more than 1300 words, Abravitova pays homage to mothers in Ukraine for the challenges they experience daily during the ongoing war. She refers to general challenges and trauma, but also list more specific incidents.

It is the references to those incidents that form the subject of the Russian Embassy’s complaint. The Russian Embassy objects to the following sentences:

6.1 “It’s clear that they are trapped in the apartment and there are explosions going on all around them as Russian bombs and missiles rain on the city.”

6.2 “I cannot imagine being the mom of one of our hero soldiers, our defenders who were filmed while being tortured and killed by Russians.”

6.3 “I cannot imagine being the mom of an infant raped by a paedophile who then proudly sends a video of his crime to his friends. There are multiple instances of Ukrainian children being raped, tortured and unlawfully confined, and in many cases, relatives were forced to witness the crime.”

6.4 “I cannot imagine waiting for a train with my kids to take them to safety and a moment later seeing them on the ground in pools of blood with missing limbs, which happened to Ukrainian mom Natalia and her kids during the infamous strike on the civilian train station in Kramatorsk.”

6.5 “I cannot imagine being the mom of a stolen and deported child, in an occupied territory where I cannot do anything and have no rights. Having my child stolen, deported, stripped of all human rights and put up for adoption in Russia.”

The Russian Embassy also complains that its requests for a reply have been ignored by the Daily Maverick. The complainant asserts a right of reply through the publication of a response by a representative from the Russian Embassy.

Locus standi

Brkic says: “Daily Maverick’s primary submission in this matter is that a nation state and its representative have no locus standi to submit complaints to the regulatory body of a sovereign state, such as the Press Ombud. That is particularly the case where that country is involved in an unlawful war of aggression on another that has repeatedly been condemned by the United Nations.”

The Russian representatives did not provide a specific response to this objection.

While the Press Council of South Africa is an independent co-regulatory system to which the majority of South African news media account, involvement of the South African government is purposefully excluded in the constitution of the Press Council. This is in line with the recommendations of the Press Freedom Commission headed by the late Chief Justice Pius Langa. To my mind, it is therefore not sound to say the Press Council is a “regulatory body of South Africa as a sovereign state”. It is a regulatory body for the South African news-consuming public.

The Russian Embassy in South Africa forms part of the news-consuming public.

The office of the Press Ombud and the Appeals Panel have been very liberal in accepting complaints and have avoided applying overly technical requirements where a complainant’s “locus standi” is challenged. In SA BDS Coalition vs SA Jewish Report (17 June 2021), a decision which was upheld by Judge Ngoepe, the then Ombud stated that nothing in the Press Code or complaints procedure limits complaints to entities that are legally constituted with formal legal rights and obligations. Neither is there any requirement that complaints may only be made on behalf of an organisation that can sue or be sued.

Clause 1.1. of the Complaints Procedure provides for a very wide range of complainants. It can be:

13.1 Anyone acting in their own interest;

13.2 Anyone acting on behalf of another person who cannot act in his or her own name;

13.3 Anyone acting as a member of, or in the interest of, a group or class of persons; and

13.4 An association acting in the interest of its members.

In this case, the complainant is interchangeably said to be Ilya Rogachev, Ambassador of Russia to South Africa, the Press Attaché (Mikhail Kosarev), and the Russian Embassy as an institution.

In principle, any of those individuals, in their personal capacity or official capacities, as well as the Russian Embassy as an institution, could be a complainant.

In my view, the focus is not on the identity of the complainant, but whether the complainant can rightfully complain about the particular subject matter. In Mathys vs EWN (7 July 2021), the question was raised whether Clause 1.1. of the Complaints Procedure allows so-called “public interest” complaints as the clause provides for anyone acting as a member of, or in the interest of, a group or class of persons. It was held that complaints by people not directly implicated in an article are permissible as long as the complaint relates to an alleged breach of one of the “general clauses” in the Press Code and not clauses in the Press Code that safeguards a specific individual’s right. In concrete terms: Any person may complain that a publication published hate speech (clause 5), for example, whereas only person X or someone representing person X would be able to complain that person X’s dignity or reputation was infringed.

Based on the above, I find that there is no blanket ban on the Russian Embassy, and the mentioned individuals for that matter, to have their complaints adjudicated by the Press Ombud.

The Russian Embassy’s objections

Predictably, the Russian Embassy has a vastly different view of what the Russian Federation calls its “special military operation” than Ukraine’s ambassador:

18.1 The complainant says there are numerous reports, including by Amnesty International, that Ukraine’s armed forces deployed weaponry in residential areas. The complaint is essentially that it cannot be accepted that it is “Russian bombs and missiles” raining on Ukrainian cities.

18.2 “There is no verified evidence of Russian soldiers torturing Ukrainians”. There is, however, “numerous records” of Ukrainians torturing Russian prisoners of war, according to the complainant.

18.3 “(There is) no verified evidence” to prove a paedophile raped an infant, or that Ukrainian children have been raped, tortured and confined, the complainant says.

18.4 Similarly, “no independent investigation of the incident at the train station in Kramatorsk has ever been conducted”. “Westen-based organisations have long ago discredited themselves through their extremely biased stance. We believe those are Ukrainian militants who are responsible for the strike on the train station in Kramatorsk…”

18.5 The embassy says Russia is not moving anybody out of Ukraine by force. It is “rather millions of refugees (that) are escaping Ukrainian shelling and bombing…”

Brkic refers this office to two resolutions adopted by the United Nations’ General Assembly condemning the Russian Federation. The contents thereof are well-known.

Says Brkic:

“The complaint ignores the substantial body of evidence detailing human rights abuses and war crimes committed by Russian forces in Ukraine, not even to mention the UN resolutions and findings that have been made regarding the conflict. The Russian embassy attempts to circumvent this by relying on selective sources (some of which do not support the points they seek to make) and by stating that there is no “verified evidence” of such claims. Besides that, there is little more than their say-so.”

Clause 7 (Protected Comment)

The Russian Embassy submits that clause 7.2. of the Press Code was breached. The clause reads:

“Comment or criticism is protected even if it is extreme, unjust, unbalanced, exaggerated and prejudiced, as long as it is without malice, is on a matter of public interest, has taken fair account of all material facts that are either true or reasonably true, and is presented in a manner that it appears clearly to be comment.”

This clause has been the subject of a few recent complaints where the Appeals Panel provided guidance on the scope of and interpretation of this clause. I highlight the following:
1. An opinion piece may also contain statements of fact. (Appeal: Goss Marlon vs News24, 11 June 2021)
2. Clause 7.2. is a defence to allegations of breaches of the remainder of the Code. (Appeal: Patriotic Alliance vs News24, 5 June 2023)

A “breach” of clause 7.2. only means that it cannot be used as a shield against allegations of breaches of the Press Code. While failing to bring a piece of comment into “a safe harbour” of clause 7, as described by the majority in Goss Marlon, would usually lead to a finding of a contravention of one or more of the Press Code clauses, it is not in itself an infringement of the Press Code. In Goss Marlon, the breach was found to be of clause 5.1. that requires the media to avoid discriminatory or denigratory references to, amongst others, people’s religion. In Patriotic Alliance, the breach was found to be clause 6.

As clause 7.2. is a defence, it is customary in complaints of this nature to first enquire whether the text complained of is within the “safe harbour” of clause 7.2.

In my view, it is.

I have already set out that the opinion piece as a whole was clearly marked as such and the capacity in which the author penned the article, identified. The public interest of the subject matter is not in dispute. Neither is there any suggestion of malice in the sense that would destroy the “safe harbour” of protected comment.

The few objective facts about the war in Ukraine are so notorious that it barely needs repetition: There is a war being conducted in Ukraine between that country and the Russian Federation. The Russian Federation has been condemned by many countries for its conduct and at the same time has allies who do not agree with this view. Other countries say they adopt a neutral stance and do not support or condemn Russia or Ukraine. A proposed International Criminal Tribunal for the Russian Federation has been proposed, which legitimacy is questioned by Russia and allies.

Outside of this framework, there is a plethora of asserted “facts” and “alternative facts” that can hardly be described as facts in a traditional sense. Any reasonable reader knows that every “fact” asserted by Ukraine is disputed by Russia and vice versa.

It is against this backdrop that I cannot find that any of the sentences under scrutiny constituted reportage of facts for the reasonable reader.

The Appeals Panel, in Patriotic Alliance, endorsed the view that there is “no clear line” between statements of fact and comments, but that an expression lies somewhere on a “fact/opinion continuum”. But, the Appeals Panel said, a line has to be drawn somewhere and it should be clear enough that the expression is comment.

The fact/opinion continuum is particularly acute in highly controversial matters such as the Israel/Palestine conflict and the war in Ukraine where the news-consuming public is aware of the disputed nature of almost every single assertion from all sides.

It is also significant that the complainant is not challenging the alleged statement of facts with conclusive facts. It claims Ukraine is also responsible for some bombings. It says there is “no verified evidence” of Russian soldiers torturing Ukrainians, while at the same time relying on the account of a US mercenary to state as fact that Russian prisoners of war are tortured. The rationale for challenging Abravitova’s statements about Ukrainian children is that she is “simply parroting the Ukrainian ex-Ombudswoman L. Denisova’s claims” and the latter was “fired exactly for those lies”.

The nature of the complainant’s challenge to the author’s alleged statements of fact is indicative of the applicability of the fact/opinion continuum.

In my view, it is clear enough for the reasonable reader that the author is not engaging in reporting facts. She is providing her perspective on the ongoing war. Neither Abrivatova nor the Daily Maverick presented the piece as an objective, factual recount.

Barring one, every sentence placed in dispute starts with the words, “I cannot imagine…”. It is clear that the sentences are the perspective of the author. The only sentence deviating from this formula is the one stating, “it’s clear that they are trapped in an apartment and there are explosions going on all around them as Russian bombs and missiles rain on the city”. I do not understand the Russian Embassy to seriously suggest that there are not Russian bombs and missiles raining on Ukraine. It is merely stating its view that there are also Ukrainian bombs and missiles raining on the country.

There is no basis for me to find that the author of the piece did not take fair account of all material facts that are either true or reasonably true.

In conclusion, I find that the opinion piece by the Ukrainian ambassador fell under the umbrella of protected comment under clause 7.

What clauses would be breached?

Even if I am wrong in the above-mentioned finding, there is another reason why the complaint should be dismissed. As already set out, clause 7.2. is merely a “safe harbour” against findings of breaches of other clauses of the Press Code.

I cannot find any breaches.

Clause 1 of the Press Code deals only with the reporting of news and not comment – especially if the comment piece is not penned by a journalist, but by an ambassador of a country.

Clause 2 of the Press Code similarly deals with news reportage that should not be influenced by external factors and not opinion pieces.

Clause 3 of the Press Code is a usual suspect for breaches. It requires the media to exercise care and consideration in matters involving privacy, dignity, and reputation. This clause will be examined below.

Clause 4 deals with data protection, which is not relevant to the current complaint.

Clause 5 could have been relevant if there was an allegation of discriminatory or denigratory references or hate speech, but this is not alleged in the current complaint.

Clause 6 deals with advocacy, which will be discussed below.

Clause 8 is not applicable as there is no chance that the coverage might cause harm to a child and no children were identified in the comment piece.

Clause 9 is not a viable option, as there was nothing exceptionally graphic or disturbing in the opinion piece’s representation of suffering, violence, and brutality. There is no way of sugar coating the consequences of armed conflict. The piece in question most certainly did not sanction, promote or glamorise violence or unlawful conduct. To the contrary.

Dignity and reputation

This Office has in the past acknowledged that not only natural persons, but also juristic entities, may complain about an infringement of their dignity and reputation. (See, for example, Avantgarde Development (Pty) Ltd vs Sunday Times and TimesLive, Complaint 9553).

But a complaint by a sovereign state of infringement of its reputation would be unprecedented. At common law, which is emulated in the Press Code, the government is precluded from claiming damages for defamation. (Die Spoorbond and Another v South African Railways and Harbours 1946 AD 999).

Even if a sovereign state could be said to have a reputation, which is highly doubtful, actions ascribed to the military forces of Russia and some unidentified “soldiers” and an unidentified “paedophile”, can hardly engage such reputation of a country as a whole.

I am also inclined to agree, on this score, with the publication’s objection to the locus standi of the complainant. It is not the Russian Embassy in South Africa or the Russian Ambassador or Press Attaché to South Africa whose reputation is on the line and in line with the decision of EWN v Mathys, such a right can only be asserted by the individual whose dignity or reputation is at stake. As already stated, it is unclear whose reputation would allegedly be affected.

There is no prospect in finding a breach of clause 3 in favour of the complainant or the Russian Federation.

Advocacy

The last remaining prospect of a “breach” would be clause 6 of the Press Code, which reads:

“The media may strongly advocate their own views on controversial topics, provided that they clearly distinguish between fact and opinion, and not misrepresent or suppress or distort relevant facts.”

The embassy complains of “anti-Russia propaganda” and says “the very image of ‘evil Russia’ only exists as long as it is constructed by myriads of fakes, produced by Russophobic forces in the West and their backers – the likes of Daily Maverick – and disseminated through their channels”.

In my view, clause 6 deals specifically with the advocacy by a publication of that publication’s views. The clause cannot be applied to advocacy by individuals with a transparent agenda in an opinion piece – whether it is an environmental activist advocating for the banning of fossil fuels, a politician campaigning in an election or an ambassador whose country is at war with another.

This was the breach found by the Appeals Panel in Patriotic Alliance. But in that matter, the piece in question was one authored by the editor-in-chief of the publication. The fundamental difference in this matter is that it is not the Daily Maverick, its editor, or a Daily Maverick journalist who wrote the piece. The piece was not endorsed by the Daily Maverick or anyone representing the Daily Maverick and therefore does not, in my opinion, amount to advocacy by the publication.

Right of reply

Closely related to the issue of “advocacy” by a publication is the complainant’s insistence of a “right of reply” by the Russian ambassador “to address the issues” raised in the complaint.

As a general remark, the Press Attaché complains about “the coverage of Russia-related issues by South African media”, of which the article in question is said to be only one example. “We note with deep regret that a number of outlets relying on Western news agencies for Russia reports convey a distorted view of what is really going on between Russia on the one side, Ukraine and the collective West on the other.”

The complainant says Daily Maverick is in breach of the Press Code by ignoring calls by the embassy to also publish the views of the Russian ambassador.

The preamble to the Press Code requires the media to “reflect a multiplicity of voices in our coverage of events”.

In principle, the media should provide as balanced a view possible when covering the news of the day. However, balanced and fair reporting is not to be confused with neutrality. The Press Code does not demand neutrality of the media. This is clear from the inclusion of clause 6 that pertinently allows the media the scope to “strongly advocate their own views on controversial topics”.

The concept of neutrality is also problematic in the context of publishing a multiplicity of opinions. The reality is that not all voices on all topics are equally important and deserve equal exposure.

Editorial discretion is one of the defining features of the professional news media that distinguishes it from social media, for example. The news media can never be expected to parrot whatever someone has to say about a particular topic. The public benefit in professional journalism is that the content published is curated, subjected to pre-publication scrutiny and subject to stringent ethical codes.

Editorial discretion is a salutary principle as old as the profession itself. When letters to the editor were prominent features in newspapers, the editor did not publish the first letters received – unedited – until space ran out. The editor applied her or his mind to all letters received and exercised a discretion as to which letters to publish and in what format and length. This remains the practice.

There is no general right to be heard. A “right to reply” is a right only applicable to a subject of critical reportage. The reason for such right is fairness towards a subject of critical reportage and not an unqualified right to be heard.

It follows that a right to reply is only engaged where the publication was ethically obliged, in terms of clause 1.8 of the Press Code, to obtain such response prior to publication in the first place. It is a codification of the audi alteram partem principle: no person should be judged without a fair hearing.

Furthermore, a right of reply is a personal right. It is a right to set the record straight where it affected the individual (or juristic entity) and that person was not granted a fair opportunity prior to publication. Interpreting a right to reply to mean someone can demand to be heard because he or she holds a different opinion to another expressed opinion would make unjustified inroads into editorial discretion.

Daily Maverick has a right to decide whose opinion pieces it publishes and whose requests to ignore as long as it is not in breach of the Press Code.

Even if Daily Maverick’s editorial decision to publish an opinion piece by the Ukrainian ambassador and not the Russian ambassador might amount to a form of advocacy envisaged in clause 6 of the Press Code (which I am not convinced is the case), there still is no breach of that clause. Having regard to the statements the Russian ambassador wishes to make in such a piece, it does not amount to a “suppression of relevant facts” by declining to publish it.

Conclusion

For the reasons given above, the complaint is dismissed.

Appeal

The Complaints Procedure lays 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 Khanyim@ombudsman.org.za.

Herman Scholtz

Press Ombud

9 October 2023