South Africa: Press Ombud finds there cannot be a blanket ban on references to alleged involvement of foreign nationals in crime reporting
Forum: Press Council / Press Ombud
Date of Finding: 6 January 2025
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Summary
The Press Ombud found that there cannot be a blanket ban on references to the alleged involvement of foreign nationals in crime reporting and that each instance must be weighed up and assessed on its own merits. However, the media is bound by the Press Code and must still exercise due care and consideration to avoid careless and gratuitous references to the alleged involvement of foreign nationals in criminal activities.
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Background
A written complaint was submitted to the Press Ombud by Mr Muchengeti Hwacha on behalf of the Asylum Seeker, Refugee and Migrant Coalition (“ASRM Coalition”) in response to an article published by BloemNews. The ASMR Coalition alleged that the article violated clause 5.1 of the Press Code by referencing the nationality of an individual arrested for his involvement in illicit cigarettes worth over a million rand being confiscated in Bloemfontein.
Facts
An article was published by BloemNews which stated that the South African Police Service (“SAPS”) arrested a foreign national after it received information about a warehouse in the Bloemfontein Central Business District that was allegedly used to store illicit cigarettes.
ASRM Coalition’s arguments
The ASRM Coalition alleged that the article violated clause 5.1 of the Press Code which states that the media should avoid the use of discriminatory or denigratory references to people’s “race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth or other status, and not refer to such status in a prejudicial or pejorative context”. The media shall only refer to the above factors when it is “strictly relevant to the matter reported, and if it is in the public interest”.
In support of its complaint, the ASRM Coalition objected to crime reporting that specifies the nationality of alleged offenders “in circumstances where such a description is irrelevant and has the potential of propagating harmful stereotypes about non-citizens”.
The ASRM Coalition further noted that such reportage goes against the right to dignity as enshrined in section 10 of the Constitution and that the Constitutional Court in Labri-Odam v MEC for Education (North-West) held that differentiating on the basis of nationality has the potential to impair the fundamental dignity of individuals.
BloemNews’ arguments
BloemNews argued that the article was based on an official statement by the SAPS that referred to the arrested person as a “foreign national” and that such language cannot be prejudicial if it is taken directly from a SAPS statement.
The news agency also argued that there were various sources confirming the link between the involvement of foreign nationals in illicit tobacco smuggling, and that mentioning that the arrested person was a foreign national was relevant in light of the involvement of foreign nationals in such activities.
Findings
The Press Ombud agreed that:
“In general terms, ill-considered or gratuitous references to the nationality of non-South African citizens can indeed play a destructive role in generating hostility among South Africans towards non-citizens.”
And that:
“Xenophobia has certainly become a problem of increasing concern in South Africa.”
However, the Press Ombud disagreed that a once-off reference to a “foreign national” would either denigrate or stereotype non-citizens. As a result, the Press Ombud found that there were insufficient grounds to conclude that the article breached Clause 5.1 of the Press Code.
In terms of the public interest qualification for the publishing of an individual’s nationality, the Press Ombud found that this requirement is best met by the publishing of reliable information about the involvement of foreign nationals in crime, which should be assessed on a case-by-case basis.
In conclusion, the Press Ombud held that:
“it is necessary to emphasise that there cannot be a blanket ban on references to the alleged involvement of foreign nationals in crime reporting. Each instance must be weighed up and assessed on its own merits. And, when doing to, the media must exercise due care and consideration to avoid careless and gratuitous references to the alleged involvement of foreign nationals in criminal activities. Failing to do so would not only be reckless and even dangerous, but in disregard of the Press Code”.
In terms of the argument regarding the infringement of the right to dignity of foreign nationals, the Press Ombud found that “the Press Council is not a court of law and does not engage in interpreting the law” but is rather “confined to upholding and enforcing the Press Code”. Therefore, complaints with constitutional rights implications may be better adjudicated by a court with jurisdiction over such matters.
- The Ombud’s decision is accessible here.
Please note: The information contained in this note is for general guidance on matters of interest, and does not constitute legal advice. For any enquiries, please contact us at [email protected].
