Appeal Decision: GroundUp vs Joseph Winer

In the matter between

GROUNDUP                                                                                                         APPLICANT

AND

1. On 15 March 2019 GroundUp (“appellant”) published an article with the headline: “Quack claims about oxygen treatment are dangerous.” The sub-headline read: “Hyperbaric oxygen therapy is used to cure ‘bends’ and treat several other conditions. But quacks are misleading the public about its use.” While the article states that Hyperbaric Oxygen Therapy (HBOT) is used to cure the so-called ‘bends’, i.e. decompression sickness in underwater divers, there are certain practitioners of the so-called mild hyperbaric oxygen therapy (mHBOT) who are “fraudulently cashing in on the science that supports medically-approved HBOT.” They claim that mHBOT can cure some conditions which it cannot. The article, quoting experts on HBOT, states that mHBOT is practised under dangerous conditions. The article speaks in general terms with reference to the practitioners of mHBOT, adding that the respondent claims it can cure a number of indications including cancer, stroke, Parkinson’s disease and many others. The article then mentions a company known as SpecialKids which advertises mHBOT through the respondent. It then refers to the case of someone in Australia, a practitioner of mHBOT, who was to stand trial following the death of a patient he was treating with mHBOT.
2. Respondent lodged a complaint with the Office of the Press Ombud against the article. The complaint had several legs. Respondent complained that the article was inaccurate, and false; that by mentioning the respondent specifically amongst other similar practitioners, the article showed bias. Respondent also complained: “Oxygenate is named and a statement about their claim is mentioned, but no effort seems to have been made to get their comment or response to the allegations …”, that is, a contravention of clause 1.8 of the Press Code is alleged.  In their letter of 29 March 2019, respondent’s attorneys put this complaint as follows: “Prior to publishing the said article, you failed and/or refused to consult our client as to the correctness of the purported ‘facts’, and/or permit client right to reply.”
3. The appellant’s defence was that the article was accurate and fair; the information having been taken from the respondent’s own website. It also said that the article was based on the opinion of experts; that is, it was a scientific reporting.
4. In her Ruling dated 29 November 2019, the Ombud dismissed the complaint relating to inaccurate reporting. Regarding what the Ombud said was the right of reply, she said the following: “Because of the arguments about science, I am not suggesting that Oxygenate be given a right of reply. However, in terms of the Press Code, GroundUp should not have mentioned the company without approaching it for comment. Thus GroundUp should apologise for mentioning Oxygenate specifically in this article….” Although the Ombud does not specifically say so, this formulation is that of a clause 1.8 breach, and the appellant, correctly, understood it so.
5. The appellant noted an appeal against the above Ruling, and leave was granted. There was no cross-appeal by the respondent against the dismissal of the complaint about the inaccuracy of the article or that it was false; nor was a cross-appeal noted against the finding that the article was a scientific reporting. As indicated above, the complaint was dismissed on the ground that the article was a scientific reporting; secondly, that it had taken the data from the respondent’s own website. The appeal before us is therefore only against the finding of a breach of article 1.8. The Ombud’s finding of the breach of the Code is based on the fact that the appellant named the respondent in the article. But the appellant argues that there is no clause in the Code that says that you may not name a person if the person was not given the right to comment. To some extent this statement is correct, except that it needs to be qualified, as to which, see later. Secondly, the appellant argues that, because it had taken the data from the respondent’s own website, there was no need for the respondent to comment; this, argues the appellant, would amount to asking a person to, as it were, comment on their own comment. The appellant’s statement that there is no provision prohibiting the naming of a person must, however, be qualified as follows: Once it is found, as the Ombud has, that the article is a scientific reporting (and thus requiring no comment) there is indeed no provision in the Code prohibiting the naming of the person. One cannot in such a scenario find a breach of clause 1.8 as this clause would only be applicable to a scenario where a person had had a right to comment. Mr Groenewald, the Acting Public Advocate assisting the respondent, proposed that we dismissed the appeal, and held the appellant to the sanction. But there is a problem with this suggestion: how do you dismiss the appeal when there is a finding by the Ombud that the article was a scientific reporting and thus requiring no prior comment? When the finding itself implies that the appellant did no wrong by not asking for comment prior to publication? To get round this difficulty, Mr Groenewald sought to persuade us to make a finding that the article was neither a scientific reportage, nor an opinion piece; he urged us to make a finding that the publication was a news article. But acceding to this request would have amounted to us overturning the Ombud’s finding that the article was a scientific reporting. We pointed out to him that there was no cross-appeal by the respondent against the Ombud’s above finding, and therefore that our hands were tied. Appreciating the difficulty occasioned by the absence of a cross-appeal before us, Mr Groenewald then proposed that we stood the matter down so that the respondent could go back and lodge a cross-appeal (against the Ombud’s finding that the article was a scientific reporting). That request could, of course, not be acceded to as the period for the lodging of a cross-appeal had long elapsed; condoning the late filing of a cross-appeal lodged so many months out of time would create a bad precedent.
6. For the reasons given above, the appeal must succeed. The appellant had also raised other grounds of appeal. It submitted that there were certain irregularities committed by the Ombud. Mr Geffen, for the appellant, said that the Ombud conducted certain investigations ex parte. In this respect, he referred to clause 3.3 of the Complaints Procedures, which reads: “If the Ombud finds that the matter cannot be decided on the papers, but some aspects of a complaint need to be clarified and sees no need for a formal hearing, the Ombud may convene an informal hearing with the two parties.” He argued that if the Ombud needed any clarification but saw no need for a formal hearing, she should have held an informal hearing, with the parties being in the presence of each other. He was of the view that the Ombud should not have for example spoken telephonically to the parties separately, as it happened in this case. Otherwise, he argued, if the Ombud seeks clarification, she should do so by emails, copying both parties each time. The point he makes is that at all times the one party must be privy to whatever is being discussed between the Ombud and the other party. He also argued that the Ombud should not put on the mantle of an investigative journalist when acting in the capacity of an Ombud; the two roles were different. Furthermore, he pointed out that his communications with the Public Advocate, which should have remained confidential in terms of clause 5.1 of the Complaints Procedures, found their way into the Ruling of the Ombud without his prior consent. Given the fact that the appeal ought to succeed on the very first ground canvassed extensively above, it is not necessary to deal with the rest of the grounds such as the alleged irregularities.  A case may arise in future where an appeal may turn entirely on similar allegations, at which occasion the issues would be properly ventilated and adjudicated upon.
7. For the reasons given above, the following Order is made:
   7. 1 The appeal is upheld.
   7. 2 The Ombud’s Ruling that GroundUp breached the Code is hereby set aside, together with the sanction imposed.

Dated this 17th day of March 2020

Judge B M Ngoepe, Chair, Appeals Panel

Mr R Mnisi, Member, Public Representative

Mr T Makhadi, Member, Media Representative