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CASE NUMBER: 49/2012

DATE OF HEARING: 11 OCTOBER 2012

DATE OF ISSUE OF JUDGMENT: 19 OCTOBER 2012

J COMPLAINANT

vs

HEART 104.9 FM RESPONDENT

TRIBUNAL: Prof Henning Viljoen (Deputy Chairperson)

Dr Linda Venter

Ms Zenobia Africa (Co-opted member)

The Complainant was invited but was unable to attend.

For the Respondent: Mr Vernon Adams (Programme Manager)

Complaint that the privacy, dignity and reputation of the Complainant had been impaired by the Broadcaster – personal information about the Complainant was disclosed regarding her divorce – although her name was not mentioned, the presenter described her as the ex-wife of the presenter’s only brother – Tribunal finding that Complainant was sufficiently identified and finding that dignity and reputation of Complainant had been impaired by being portrayed by presenter as someone who came into marriage with nothing but relieved her husband of everything at the divorce – the fact that the topic of discussion was of public interest did not save the Broadcaster from a finding of contravention of clause 15(1) of the Code – complaint upheld and a fine of R 5 000 imposed – J vs Heart 104.9FM, Case no: 49/2011(BCTSA).

 

SUMMARY

A complaint was received by the Complainant that her privacy, dignity and reputation had been impaired by the Broadcaster during a Morning Show when a discussion was broadcast about pre-nuptial contracts. During the show a copresenter in an emotional outburst quoted the divorce of her only brother as an example why she is in favour of pre-nuptial contracts. During the discussion personal information about the Complainant was disclosed regarding her divorce. Although her name was not mentioned, the presenter described her as the ex-wife of her brother. Evidence before the Tribunal is that the presenter is a popular person with a large Facebook following. The Tribunal found that the Complainant was sufficiently identified because some of her friends, family and colleagues phoned her after the broadcast to tell her that personal information regarding her divorce had just been disclosed in the broadcast. The Tribunal found that the dignity and reputation of the Complainant had been impaired by being portrayed by the presenter as someone who came into the marriage with nothing, but relieved her husband of everything at the divorce. The fact that the topic of discussion (prenuptial contracts) was of public interest, did not override the rights of the Complainant. The Tribunal found a contravention of clause 15(1) of the Code. The complaint was upheld and a fine of R 5 000 imposed.

__________________________________________________________________

Click here for the full judgement: http://www.bccsa.co.za/images/hearings/JUDGEMENTS2012/PDF/HEARTFM/case%20no%20-%2049-2012.pdf

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Tiry vs LotusFM struck off the BCCSA roll

Posted by radio On October - 17 - 2012 ADD COMMENTS

CASE NUMBER: 45/2012

DATE OF HEARING: 11 OCTOBER 2012

DATE OF ISSUE OF JUDGMENT: 15 OCTOBER 2012

TIRY COMPLAINANT

vs

LOTUS FM RESPONDENT

TRIBUNAL: PROF JCW VAN ROOYEN SC (CHAIRPERSON)

DR N MAKAULA

MR A MELVILLE

MR E LININGTON (CO-OPTED)

The Complainant was invited but was unable to attend.

For the Respondent: Mr. Fakir Hassen, Manager: Broadcast Compliance, Policy and Regulatory Affairs and Ms Veronica Barnard, Compliance Officer.

________________________________________________________________________

Jurisdiction – where complainant conceded in her reply that there was no contravention of the Code, the BCCSA does not have jurisdiction to decide a matter. Tiry vs LotusFm, Case No:45/2012(BCTSA).

________________________________________________________________________

SUMMARY

The Registrar and Chairperson of the BCCSA were under the impression that the Complainant was, indeed, complaining about a contravention of the Code and, accordingly, the matter was referred to a Tribunal. The Complainant’s further correspondence, which the Registrar only received after a Tribunal had heard the matter, however, made it clear that the Complainant was not of the view that the Code had indeed been transgressed. She, however, complained about the presenter’s having been insensitive. It was permissible for the BCCSA to take note of the new material, since the initial intention, as conveyed to the Complainant, was to hear the matter ten days later. The Complainant indicated that she would not attend the hearing on the 11th October. However, she added to her written argument on the afternoon after we had already heard the matter, obviously believing that the matter would only proceed on the 11th.

The BCCSA may only deal with complaints that are claimed to amount to a contravention of the Code. Of course, the Registrar is entitled to reject complaints which do not make out a prima facie case of a contravention of the Code. Since remarks which are made in regard to pending court cases could amount to a contravention of Clause 12.2 of the Code, she decided to refer the matter to me.

The jurisdiction of the BCCSA is, in fact, dependent on a complaint which alleges that a contravention of the Broadcasting Code has taken place. Where a contravention of the Code is not alleged, the BCCSA cannot simply claim jurisdiction of its own volition. The Tribunal was, accordingly, not permitted in law to come to a decision on the matter.

The matter was removed from the roll of the BCCSA.

Read the full judgement here: http://www.bccsa.co.za/images/hearings/JUDGEMENTS2012/PDF/SABCRADIO/case%20no%20-%2045-2012.pdf

Source: BCCSA

 

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Right of Reply- swift offer by radio station not acceded to – complaint not upheld on this ground

Citizen Newspaper vs Talk Radio 702; Case No: 39/2012(BCTSA).

 

DATE OF HEARING: 5 SEPTEMBER 2012

JUDGMENT RELEASE DATE: 27 SEPTEMBER 2012

 

CITIZEN NEWSPAPER COMPLAINANT

vs

TALK RADIO 702 RESPONDENT

 

TRIBUNAL: PROF JCW VAN ROOYEN SC (CHAIRPERSON)
DR LYNDA GILFILLAN

MS ZALI MBOMBO

MR ALAN MELVILLE

The Complainant represented by Mr Michael Coetzee, News Editor of The Citizen Newspaper.
For the Respondent: Khahliso Mochaba: Group Human Capital and Regulatory Affairs Executive, Primedia Broadcasting.

________________________________________________________________________

SUMMARY
The Registrar received a complaint against Radio 702 from the The Citizen newspaper that John Robbie, one of the radio station’s presenters, had made an unfair comment about one of its news items. The newspaper should, it was argued, have been given a right to reply by the radio station.

The Tribunal was in no doubt that the comment made by the host entitled The Citizen to a right to reply. The comment amounted to serious criticism against a newspaper in stating unequivocally that one of its headlines was misleading. Although a broadcaster’s offer to reply does not always remedy a contravention, the radio station had in fact taken swift action in offering the Complainant an opportunity to reply on air. The Complainant should have accepted this offer. The procedural rules provide that where an offer is made by a broadcaster to address a complaint, in this case with a swift offer of an opportunity to reply, the Registrar may withdraw her acceptance of the complaint. In the present case the Registrar did not do so. However, this does not mean that a complainant should not consider accepting the offer in any case, thereby remedying the breach. Such an opportunity was provided as soon as the radio station became aware of the complaint. The likelihood is that if The Citizen had replied on air, this reply would have addressed its complaint. Had The Citizen not been satisfied with the opportunity thus granted, it could then have pursued its complaint. The fact that the opportunity was not accepted has, however, created a gap in the evidence before the Tribunal.The Tribunal stated that not all offers of a right to reply would have this effect, however, in the circumstances, it would have been reasonable for The Citizen to have accepted the swift offer.

The Complaint was, accordingly, not upheld.

A note of caution was, however, added by the Tribunal:

Although regular listeners to the John Robbie Show have become accustomed to his provocative comments on the news of the day, the Radio Station should exercise diligence in attempting to reach a person subjected to serious criticism during the same programme. Of course, as frequently occurs, the presenter should also, in serious cases, add the comment that a full picture can only be achieved where the person criticised is also heard. This approach will promote the search for truth, which listeners are constitutionally entitled to hear.

__________________________________________________________________________

Read the full judgement here:http://www.bccsa.co.za/images/hearings/JUDGEMENTS2012/PDF/TALKRADIO702/case%20no%20-%2039-2012.pdf

SOURCE: BCCSA

 

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M-NET In Latest BCCSA Case

Posted by radio On September - 19 - 2012 ADD COMMENTS

Alleged mistake as to value of prize in Reality Show not a matter to be decided by the BCCSA in terms of its Code.Chetty vs M-Net, Case No: 41/2012(BCTSA)

 

CASE NUMBER: 41/2012

 

DATE OF HEARING: 11 SEPTEMBER 2012

 

JUDGMENT ISSUED: 14 SEPTEMBER 2012

 

CHETTY COMPLAINANT
vs
M-NET RESPONDENT

 

TRIBUNAL: PROF KOBUS VAN ROOYEN SC (CHAIRPERSON)
DR LYNDA GILFILLAN
MS ZALI MBOMBO
MR A MELVILLE

 

Complainant: The Complainant was unable to attend
For the Respondent: Dr Dario Milo, with him Greg Palmer from Webber Wentzel Bowens accompanied by Theo Erasmus: Channel Director, General Entertainment, M-Net.

 

SUMMARY

Clause 28.2 of the Subscription Broadcasting Code addresses (as does clause 12 of the Broadcasting Code for free-to-air broadcasters) only programmes which feature matters of public importance. They do not address matters as mundane as a reality programme. Although section 39 of the Constitution permits the Tribunal to adapt
the law to bring it in accordance with the Bill of Rights, it would be impermissible for this Tribunal to, for example, lift the phrase “public importance” from the Code and then apply it to the programme complained about. Such an interpretation would basically change the meaning of clause 28.2 and is clearly not authorised by section 39.
The Advertising Standards Authority applies a Code which has a wider ambit than the BCCSA Code, and relates to promotional material. The present programme falls within the jurisdiction of the BCCSA since it is, in the main, an entertainment programme. If indeed an error has been made in the programme then that is not an area within which the BCCSA Codes permit the BCCSA to act. The possible error is, within the ambit of the BCCSA Codes, not of a type that it is called upon to adjudicate. The level of entry for the BCCSA, according to the Codes which it applies, lies at a higher level.

It does not concern itself with mundane matters such as errors in a reality show. Its focus is on news, comment on matters of public interest, the right to reply in such matters, the protection of privacy, reputation and dignity, information to the public in regard to the nature of programmes and films, the protection of children and, generally, the exclusion of XX and X18 material which relate to pornography and excessive violence and, ultimately, hate speech based on race, ethnicity, religion and gender.

The complaint was, accordingly, not upheld.

 

JUDGMENT

Prof JCW van Rooyen SC

 

[1] The Registrar of the BCCSA received a complaint by Dr Chetty regarding the broadcast of the results of a Masterchef reality competition which was underwritten by M-Net and also broadcast by M-Net in the programme complained about. I referred the matter to a Tribunal.

 

[2] The complaint reads as follows:

“In December 2011, M-Net began flighting advertisements for its new reality tv series, viz Masterchef South Africa. This was based on the popular international shows. They advertised the series as that with the highest prize money of any reality show in the country. They announced prizes in excess of R8 million, which included a restaurant valued at R7 million. The advertisements clearly gave the impression that a fully furnished restaurant was being given away. This mention of the prize money was also printed on its DSTV website.

To any reasonable person, there was no ambiguity in the way this was presented across. This obviously boosted peoples interest in the series and M-NET declared the series has having the fourth highest viewership of all of the DSTV programmes. Furthermore Naspers which is the parent body of Multichoice announced there was a huge increase in the subscriptions to dstv. However I was alarmed to learn today (27/07/2012) that no restaurant was given away at the close of the competition on 24/07/2012. What the winner received was in fact a contract to run the restaurant for 2 years, with only an undisclosed share of the profits. Furthermore, he would only make 5 appearances per month at the restuarant and not be based fulltime there. The restaurant would not change hands from the owners Tsogo Sun. The actual total prize money was in fact under a million rands.

The manner in which M-Net and DSTV conducted themselves is nothing short of scandalous. The lies and deception from M-Net has left a bitter taste in my mouth. This broadcasting company should face censure over their unethical conduct to boost ratings. This in my mind constitutes fraud and borders on criminality. I am writing to you in the hope that you would investigate this complaint and take action against M-NET.
All I am asking as a viewer is fair and honest broadcasting. Please investigate this complaint and advise accordingly. I value the role that the BCSSA plays in ensuring that these broadcasting corporates adhere to a proper code of conduct.

 

The prizes to have been awarded were uploaded onto YOUTUBE and can be viewed at the link below.

 

I would like to bring to your attention that the screening of the 1st episode of Masterchef SA began on 20/03/2012. Since the very first screening the show has been labelled as that with the highest prize money of any reality tv show. They repeatedly broadcasted the prizes on offer until the last episode on 24 July 2012.The prizes are broadcast as a total in value of over 8 million. I have a copy of the last broadcast where it mentions that the winner will get his very own restaurant courtesy of Tsogo Sun. In small writing there is mention of terms and conditions. Running a restaurant for 5 times a month is vastly different from getting your very own restaurant. Even on the dstv website currently, M-NET continues to advertise the prizes as a total of R8 million including “YOUR VERY OWN RESTUARANT”.

 

[3] M-Net responded as follows:

 

“Complaint concerning Masterchef programme

3. Clause 1.5.3 of Appendix 1 to the BCCSA’s Constitution provides that the Registrar of the BCCSA should only accept a complaint which does not concern an advertisement broadcast by a signatory who is also subject to the Code of the Advertising Standards Authority of South Africa (“ASA”), provided that “advertisement” bears the meaning which the ASA Code attributes to it.

4. Our client’s advertisements are subject to the jurisdiction of the ASA. Our instructions are that the broadcast that is the subject of the BCCSA complaint may be an “advertisement” as defined in the ASA Code.

5. The Registrar’s attention is also drawn to the fact that the complainant has complained in similar terms to the ASA, and our client is poised to respond to that complaint.

6. We would be grateful for an indication that a response from our client to the BCCSA is in the circumstances unnecessary.”

 

[4] Firstly as to jurisdiction: although the Masterchef programme included promotional material relating to the Masterchef reality competition complained about, the latter is, essentially, a prize giving ceremony rather than an advertisement and, accordingly, the BCCSA has jurisdiction to decide the matter. A further argument put forward by Mr Milo was that there was no misrepresentation in the programme since, effectively, the winner did receive substantial ownership rights and benefits, albeit not actual lifelong ownership of the restaurant itself. Mr Milo argued that the reasonable viewer would have been likely to understand this kind of ownership, given the conventional relationship of a chef to a restaurant.

 

[5] Since the programme does not amount to news and is, in fact, nothing more than entertainment, the rules relating to news, which are strict concerning truth, do not apply in this instance. The only other clause in the Subscription Broadcasting Code which could possibly be applicable to the broadcast is clause 28.2, which provides as follows:

Licensees may broadcast comment on and criticism of any actions or events of public importance. Comment must be an honest expression of opinion and must be presented in such manner that it appears clearly to be comment, and must be made on facts truly stated or fairly indicated and referred to.

 

[6] Clause 28.2 governs opinions on matters of public importance. The first question is whether the clause is applicable to the programme complained about. Does the programme deal with a matter of “public importance”, which obviously, in law, means “public interest.” We have made it clear in at least three judgments1 that the term “public interest” has a limited meaning. It does not, as has often been pointed out, amount to what is interesting to the public. If that were the case, all reality shows would fall within clause 28.2.

 

[7] In Financial Mail (Pty) Ltd and Others v Sage Holdings Ltd and Another 1993 (2) SA 451 (A) Corbett CJ said at 464C-D:
“(1) There is a wide difference between what is interesting to the public and what it is in the public interest to make known . . .

(2) The media have a private interest of their own in publishing what appeals to the public and may increase their circulation or the numbers of their viewers or listeners; and they are peculiarly vulnerable to the error of confusing the public interest with their own interest…”

 

[8] The programme that we have to judge in no way deals with a matter of public importance. It does not expose matters such as alleged abuse and or evil in society. On that ground alone, we should reject the complaint. There is no provision in the Subscription Broadcasting Code nor, for that matter, in the Free-to-Air Code, which addresses this category of mistakes. Of course, both Codes address misinformation relating to news, classification and age restrictions, but the matter complained of in the present instance does not fall within any of these categories.

 

[9] The next question is whether this Tribunal is permitted to broaden clause 28 so that it also includes errors of the type which the Complainant alleges were broadcast. This question is especially pertinent since we are of the view that the formulation “he gets his very own restaurant” could be interpreted by many viewers as “full ownership” for as long as it pleases the winner to exercise such ownership. Of course, this is what ownership usually means to the ordinary reasonable member of society. Lawyers would know that the term has different nuances to it – and these nuances were fully stated in the contract with the winner. It was clear that he would obtain the sole right to the reputation that he builds in the restaurant, and that he would determine the menus. Moreover, there were different options that the winner might exercise, one of which being that he could, effectively, run the restaurant for two years.

We would, however, only be permitted in law to express a final opinion on what the perception of the reasonable viewer would have been if clause 28.2 prohibits such a mistake. If not, we might be interfering with a decision which the Advertising Standards Authority still has to make. Of course, the ASA would not be making a finding on this broadcast before us, since it does not amount to an advertisement. However, we were informed that the ASA will be adjudicating the same advertisement within a context where it has jurisdiction.

 

[10] As has been pointed out by the Constitutional Court, South Africa is a constitutional democracy, and legality is a founding value of this democracy. Legality requires that judicial bodies and organs of state must function within the powers vested in them by legislation or common law.

 

[11] It is true that section 39(2) of the Constitution of the Republic of South Africa 1996 obliges a court and other tribunals such as the BCCSA, when interpreting legislation,3 to promote the spirit, purport and objects of the Bill of Rights. A Court and this Tribunal should, of course, bear in mind that Parliament is the major engine in law reform and that a court or tribunal should take care not to usurp that function.4 In Director of Public Prosecutions, Cape of Good Hope v Robinson5 Yacoob J said the following in regard to the scope within which s 39(2) is permitted to be applied:

 

[54] Fourthly, the High Court misconceived the extent of its power to construe a legislative provision consistently with the Constitution. A Court’s power to do so is not unqualified; a Court cannot give a meaning to the provision which it regards as consistent with the Constitution without more. The provision concerned must be reasonably capable of the preferred construction without undue strain to the language of the provision.6 The words ‘liable to be surrendered’, in their context, are incapable of bearing the meaning contended for.” (emphasis added)

 

[12] In light of what Yacoob J states above, it is clear that this Tribunal would have to lift the words “public importance” from clause 28 if it were to broaden the scope of the clause to include all mistakes made by a broadcaster. That would amount to a fundamental change to a clause which obviously does not deal with mundane matters such as the results of a reality show. It should also be borne in mind that the BCCSA is granted powers to intervene in matters concerning freedom of speech, a fundamental right which has been described as lying at the heart of democracy. To extend our powers to cover the present dispute, and thereby to intervene, would be perilous for that very democracy. It is true that the Constitutional Court has held that no fundamental right is more important than any other right,7 and that when a matter is considered, all fundamental rights must, at the start, be regarded as having equal value. Thereafter, balancing of these rights, in the light of the particular circumstances of each case, takes place. Nevertheless, there is no basis upon which we are permitted by section 39 to fundamentally change clause 28.2 to cover the set of facts before us.

 

[13] A final consideration on the matter: clause 29 of the Subscription Code provides as follows: “This Code is subject to interpretation in the light of changing circumstances.” Firstly, it is significant that when ICASA accepted the New Code for Free-to-Air broadcasters in 2009, a clause of this nature was no longer included.

 

Secondly, the clause would seem to be reminiscent of dictatorial structures such as the seventeenth-century (and earlier) English Star Chamber which was permitted to widen (often dictatorially) its powers according to the  facts of a case, and thus amend or fill in omissions in the Common law. Within a Constitutional Democracy there is, fortunately, no power for a Court or, for that matter the BCCSA Tribunal, to fill in gaps in the Law or Code which it applies. In fact, it is my view that there is no “gap” in clause 28.2 and that it was clearly intended to not intervene in matters which are not of public importance.

 

Nullum crimen sine lege and nulla poena sine lege are fundamental principles in our democracy, which is based on the fundamental right to legality in section 1 of the Constitution of the Republic of South Africa.9 Clause 29 can only have an effect in so far as it accords with section 39 of the Constitution. It is probable, in any case, that this only means that the facts of each case must be decided upon in the light of prevailing circumstances in the country at the time.

 

In any case, such a provision is unnecessary since Courts and Tribunals always judge matters in the light of prevailing circumstances. We are ultimately bound by the wording of the Code and are permitted to deviate from the wording only when section 39 of the Constitution places a duty on us to do so. As indicated above, this is not such a case.

 

[14] The Advertising Standards Authority applies a Code which has a wider ambit than the BCCSA Code, and relates to promotional material. The present programme falls within the jurisdiction of the BCCSA since it is, in the main, an entertainment programme. If indeed an error has been made in the programme then that is not an area within which the BCCSA Codes permit the BCCSA to act. The possible error is, within the ambit of the BCCSA Codes, not of a type that it is called upon to adjudicate. The level of entry for the BCCSA, according to the Codes which it applies, lies at a higher level.

 

It does not concern itself with mundane matters such as errors in a reality show. Its focus is on news, comment on matters of public interest, the right to reply in such matters, information to the public in regard to the nature of programmes and films, the protection of children, matters pertaining to reputation, dignity and privacy and, generally, the exclusion of XX and X18 material, which relate to pornography and excessive violence; ultimately, it also relates to hate speech based on race, ethnicity, religion and gender.

 

We accordingly find that clause 28.2 is not applicable to the present matter since the broadcast did not relate to a matter of public importance in the sense of public interest, which has a limited legal meaning.

 

The Complaint is not upheld.

 

Source: BCCSA

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Latest BCCSA judgement

Posted by radio On August - 29 - 2012 ADD COMMENTS

SABC3 – NEWS – INTRODUCTION ALLEGED TO HAVE BEEN INACCURATE 

 

News item stating that the Films and Publications Board had urged listeners to delete copies of a painting which had been classified with a 16N. Complaint that the reference to “delete” was not correct and that the painting was not, according to the Board, to be deleted. However, this is what the CEO of the Board in fact said at a news conference.

 

The CEO was also not wrong insofar as she referred to the deleting of mobile phone
images and internet content. Access is in fact prohibited by law for children under 16. The Board, however, used milder language (“urge”) in conveying this message to the public. The style was obviously directed at rather obtaining the co-operation of the public than holding the sword of the law above them. Complaint not upheld.

 

CASE NO – 38-2012 – 

DATE OF HEARING: 27 JUNE 2012

DATE OF ISSUE OF JUDGMENT: 31 JULY 2012

 

MOTSOANE COMPLAINANT
vs
SABC3 RESPONDENT

 

TRIBUNAL:

PROF KOBUS VAN ROOYEN SC (CHAIRPERSON)
PROF HP VILJOEN (DEPUTY CHAIRPERSON)
MS G HARPER
DR N MAKAULA
MR A MELVILLE

 

FOR THE COMPLAINANT: The Complainant was invited but did not attend.

 

RESPONDENT: Mr Fakir Hassen: Manager: Broadcast Compliance, Policy and Regulatory Affairs.
_________________________________________________________________________________

News – item judged as a whole – conveyed the legally correct state of affairs–– Motsoane vs SABC3, Case: 38/2012.(BCTSA)
_________________________________________________________________________

 

 

JUDGMENT


JCW van Rooyen SC
[1] A complaint was received in regard to a SABC3 news item which, in the introduction, stated that the Films and Publications Board had urged the public to delete a painting depicting nudity, which had been classified 16N (the “N” indicating that nudity was the reason for the classification.) Since two persons had damaged the original painting, the order related to copies of the painting. Obviously, if the painting were to be repaired, the order would also apply in regard to the original.

 

[2] The complaint read as follows: “I write to complain about inaccurate reporting by SABC 3 news which was aired on 01 June 2012 at 19:00 (specifically around 19:05) on the decision made by the Film and Publication board’s Classification committee to suggest that all South African Citizens in possession of uncensored ‘The Spear’ painting images must delete it. This is very misleading and changes what the chief operations officer, MmapulaMakola, who was aired in same news saying that the painting has artistic merits but access must be limited to those above the age of 16 years and sensitive viewers must be warned of the nudity content.The SABC sends a message that people must remove the image instead and this creates a picture that SABC is biased, on this whole saga, and making its own judgement on the matter. We all know SABC has signed a code of conduct with BCCSA and it has contravened that code by unfair, inaccurate and misleading reporting. Looking forward to a correction in this matter.”

 

[3] The Broadcaster responded as follows:
“BCCSA COMPLAINT: THABO MOTSOANE-SABC3 – ALLEGED MISLEADING INFORMATION – 19:00 NEWS – 01.06.12

 

Our comments are as follows.
1. In the introduction to the story, we paraphrased what the CEO of the Film and Publications Board, Yoliswa Makhasi said in calling on South Africans in possession of the image to delete it. This was a call she made on behalf of her organisation, urging people to comply with its ruling.
2. The call was made to all people, and especially to youth under the age of 16, because the Board had ruled the material to be unsuitable for them.
3. It is a common practice in broadcast journalism to paraphrase certain quotes and then use other interviews to tell a story, given the time constraints of a news bulletin item on television.
4. The allegation that the SABC was partisan in its approach to the story is incorrect, as here were several interviews in this news item which accurately provided the balance to the issue. We submit that there has been no contravention of the Code in this matter.”
Evaluation

 

[4] If the sole content of the news item was that the painting had to be deleted, the item would, of course, have been incorrect and the Broadcasting Code contravened. This is, however, not what was said in the introductory sentence of the newscast complained about. The newsreader explicitly stated that the Films and Publications Board had urged the public to delete the painting which was classified as 16N. The news report was indeed correct insofar as it, effectively, quoted the CEO at the news conference. Although the news conference was not broadcast, we viewed the material provided to us by the SABC and there was indeed a reference to “delete”. However the context was clear, both when the CEO spoke at the news conference and when the newsreader, quoting her, referred to “delete”. Both the CEO and the newsreader combined the reference to “delete” with the age restriction of 16N and both used the word “urged”. The effect was clear: parents and children under 16 were “urged” to delete images of the painting from cell phones and the internet where children under 16 had access to these media. The CEO used a milder term than the law in fact prescribes: and that is that access to children under sixteen years is prohibited. However, it was clear from the tone of the Board at the news conference that they did not wish to create the impression that they were interfering with the private lives of families.

 

[5] The balance of the news item, where interviews were conducted with several persons, made it clear that the painting was not banned and that the restriction lay in the non-accessibility of the copies of the painting to children under 16 in terms of the decision made by the Board.

 

The complaint is, accordingly, not upheld.

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Latest BCCSA Cases

Posted by radio On July - 5 - 2012 64 COMMENTS

1.  CASE NO – 30-2011 – MULTICHOICE – CII RADIO – HATE SPEECH

CASE NUMBER: 30/2012

DATE OF HEARING: 14 JUNE 2012

BABOO 1ST COMPLAINANT

vs

MULTICHOICE CII RADIO RESPONDENT

TRIBUNAL: PROF KOBUS VAN ROOYEN SC (CHAIRPERSON)

DR LYNDA GILFILLAN

MR ALAN MELVILLE

MS ZALI MBOMBO

Respondent: Mr Bruce Mkhize, Regulatory Compliance Manager, Regulatory Affairs.

 

Complaint that a word denoting non-believers and people who are ignorant of the Qu’ran, in particular, is derogatory and constitutes hate speech. The Tribunal held that the term cannot be construed as hate speech as there was no advocacy of hatred based on religion, and no incitement to cause harm, the two requirements for the finding of a hate speech contravention. Furthermore, this was a bona fide religious broadcast in which a discussion on a matter pertaining to religion occurred, and so there was no contravention of the Code, and the complaint was not upheld. Baboo vs Multichoice CII Radio.

Read the full judgement here:

http://www.bccsa.co.za/images/hearings/JUDGEMENTS2012/PDF/MULTICHOICE/case%20no%20-%2030-2012.1.pdf

 

2.      CASE NO – 31-2012 – 94.7 HIGHVELD STEREO – NEWS – CHILDREN

 

CASE NUMBER: 31/2012

DATE OF HEARING: 14 JUNE 2012

STEVENS COMPLAINANT

vs

94.7 HIGHVELD STEREO RESPONDENT

TRIBUNAL: PROF JCW VAN ROOYEN SC (CHAIRPERSON)

DR L GILFILLAN

MR A MELVILLE

MS Z MBOMBO

For the Complainant: The Complainant was invited but did not attend.

For the Respondent: Khahliso Mochaba: Group Human Capital and Regulatory Affairs Executive, Primedia Broadcasting.

The complaint concerned a news item concerning the ten-minute-long mobile phone footage of an incident where seven boys aged between 14 and 18 years raped a mentally-challenged girl aged 17. Part of the footage contained the rapists’ dialogue, and the voice of the girl was also audible. The news item conveyed that the footage had gone “viral” in Soweto. Although the Tribunal noted that the broadcaster had warned sensitive viewers of the content of the news item, the Tribunal held that clues as to the identity of the girl had, indirectly, been given, which is in conflict with the Code. The Tribunal also stated the following as a future guideline to broadcasters: The footage, which includes the audio soundtrack, probably amounts to child pornography, which in terms of the Films and Publications Act 1996 may not be possessed or distributed. Distribution would include distribution of the footage in its entirety, as well as the visuals and/or the audio soundtrack individually, by way of the electronic media, which includes mobile phones. Since this aspect was not pursued during the hearing of this matter, the Tribunal will not spend further time on the question as to whether the Respondent was promoting the distribution of the mobile phone footage, which would amount to a contravention of clause 3(b) of the Broadcasting Code. However, it is worthwhile to at least mention this possibility, as a guideline to broadcasters which fall within our jurisdiction. Of course, the mere coverage of a crime does not amount to such a promotion. However, where children are protected by criminal law, the mere mention of the availability of child pornography on mobile phones in a specific case, might amount to the promotion of a crime. Since the indirect identification of victims of sex crimes has never been the subject of a judgment of this Commission, the Tribunal decided not to consider a heavier sanction (e.g. a fine), and to restrict the sanction to a reprimand. However, such a contravention will, in future, probably lead to a stricter approach. The Complaint is upheld and the Respondent reprimanded for a contravention of clause 11(7) of the Code.  Stevens vs 94.7 Highveld Stereo.

Read the full judgment here:

http://www.bccsa.co.za/images/hearings/JUDGEMENTS2012/PDF/94.7HIGHVELDSTEREO/case%20no%20%2031%20-%202012.pdf

 

 3.      CASE NO – 25-2012 – JACARANDA 94.2FM – RIAN VAN HEERDEN – DEFAMATION

 

CASE NUMBER: 25/2012

DATE OF HEARING: 5 JUNE 2012

W BOTHA 1st COMPLAINANT

HOËRSKOOL ALBERTON 2ND COMPLAINANT

vs

JACARANDA 94.2 FM RESPONDENT

TRIBUNAL: PROF KOBUS VAN ROOYEN SC (CHAIRPERSON)

PROF VICTORIA BRONSTEIN

DR NANA MAKAULA

MR BRIAN MAKEKETA

For the Complainants: The Complainants were invited but did not attend.

For the Respondent: Mr JD Crawford, Legal Representative, accompanied by Mr

Neil Johnson: Jacaranda Programme Manager.

 

The complaint before the Tribunal was that a presenter from the respondent had, during a broadcast, referred to an Alberton School rugby team as “gomgatte”, which amounts to calling them “country bumpkins” or loutish. The Tribunal held: That the accusation was directed at a schoolboy who had head-butted an opponent during a rugby game and was sent off by the referee. When the referee attempted to obtain the schoolboy’s name after the match, the latter head-butted the referee. This schoolboy, according to the broadcast, was from a school outside the Alberton area. That the reference by the presenter indicating that one might have expected such conduct from a schoolboy in Alberton, served to debunk any possible stereotype that this kind of conduct is specific to Alberton. That, in effect, the statement was not defamatory, but served to show that hooligans may be found anywhere. The complaint was, accordingly, not upheld.  Botha and Hoërskool Alberton vs Jacaranda 94.2FM.

Read the full judgment here:

http://www.bccsa.co.za/images/hearings/JUDGEMENTS2012/PDF/JACARANDAFM/case%20no%20-%2025-2012.pdf

 

 

 

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Metro FM Involved in Latest BCCSA Case

Posted by radio On June - 24 - 2012 Comments Off on Metro FM Involved in Latest BCCSA Case

BCCSA LATEST JUDGEMENT

Date of hearing: 24 May 2012

Sixholo (Complainant) VS SABC Metro (Respondent)

 

Hate speech based on gender – repetition of degrading joke amounting to advocacy of hatred – Sixholo v SABC2 Case No: 22/2012 BCTSA

The summary of the case reads:

 

The repetition of a joke on Metro FM which degraded women was held to have amounted to hate speech as a result of the repetition thereof as a promo. The SABC was reprimanded for the contravention

 

The complaint to the BCCSA includes the following:

 

“The complaint is based on material that was broadcast today 26 March 2012, (and other days before this) on Metro fM on the Tbo Touch show between 17:00-18:00pm. The material is a promotional clip that promotes the Tbo touch show where their regular caller, Mnr Van Niekerk, says that he will never be with a woman who has been with a Venda / Tsonga man because “sleeping with her would be like putting a stick in the Kimberly hole”. This clip is racist and promotes negative ethnicity based stereotypes regarding black Venda men. Furthermore it is degrading and demeaning to women’s dignity and offensive. As a woman I am so humiliated by this clip. Whilst I understand that Metro FM cannot be held accountable for caller’s views, I am appalled that they have been repeatedly playing that clip to promote the Tbo touch show. Please assist in getting the clip off the airways.

After full consideration of the impact of the repetition of the clip, the conclusion reached reads:

The SABC argued that, as the BCCSA ruling pointed out, the promo complained about was not intended to cause offence, but was rather meant to be understood in the same light-hearted manner expressed by the original caller. The Complainant indicated at the hearing that she was comfortable with the promo having been removed once the complaint had been lodged. The presenter also tendered his apology to her personally at the hearing for any offence that the promo may have caused her. The presenter has indicated his regret about repeating the call as a promo, and the station has also drawn from the matter a lesson concerning the impact of such actions – which lesson will be shared with all presenters to avoid a recurrence of any similar incident.

 

To read the full judgment, visit:  http://www.bccsa.co.za/index.php?option=com_content&view=article&id=730:case-no-22-2012-metro-fm-hate-speech-based-on-gender&catid=23&Itemid=2

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YFM ESCAPES HATE SPEECH CASE

Posted by radio On April - 18 - 2012 Comments Off on YFM ESCAPES HATE SPEECH CASE

 

The Registrar of the Broadcasting Complaints Commission of South Africa (BCCSA) has received a complaint regarding the use of the word “nigger” in a broadcast of an afternoon YFM programme titled ‘Prime Mode’ on 15 March 2012 between 14h00 and 15h00.

The complainant, Tshepo Motaung, contends against the use of the word “nigga” which he heard being used quite liberally on the afternoon show. Motaung’s claims rest on the issue of “hate speech based on race clause”.

The applicable clause to the case as it stands is:

Clause 4(2): Broadcasting Service licensees must not broadcast material which, judged within context, amounts to (a) propaganda for war; (b) incitement of imminent violence or (c) the advocacy of hatred that is based on race, ethnicity, religion or gender and that constitutes incitement to cause harm.

The judgment observed that “it cannot seriously be suggested that the broadcast was intended to or indeed even had the effect of advocating hatred, less still that it constituted incitement to cause harm. The use of the word “nigga” was plainly not intended to have any of these effects nor did it indeed have such effects”.

Therefore upon revising the case, the judgment did not find the broadcast station (YFM) in violation of clause 4.2 of the BCCSA code of conduct and the complaint is therefore not upheld.

To read the full adjudication, visit: www.bccsa.co.za

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