Appeal Decision: De Vere Group and Nigel Green vs. Moneyweb

Wed, Dec 6, 2017

In the matter between

DE VERE GROUP AND NIGEL GREEN                                                        APPLICANT


MONEYWEB                                                                                                  RESPONDENT

MATTER NO: 3521/10/2017


1.         De Vere Group and Nigel Green (collectively referred to as “the applicant”) seek leave to appeal the Ruling of the Press Ombud dated 27 October 2017.  The Ombud had dismissed the applicant’s complaint against Moneyweb (“the respondent”). The complaint was against an article published by the respondent on 6 September 2017, with the headline “The world’s greatest Ponzi Scheme that never was”. The article was about a report on the outcome of an investigation that had been carried out by the Guernsey Financial Services Commission (“GFSC”) into what was alleged to be a “Ponzi scheme”.  By way of context, the article provided three hyperlinks to three previous related articles published in 2015. The third hyperlinked article formed the subject of the complaint which was lodged with the Office of the Press Ombud. It had been published on 7 May 2015, with the heading “Belvedere mastermind’s point fingers at Nigel Green.”

2.         The applicant’s complaint was that it had not been given the opportunity to respond; that is, to respond to the third hyperlink. The applicant demanded that the text be removed from the respondent’s website, and an apology for not giving the applicant the right to reply be published. It argued that the hyperlinking amounted to republication, thus necessitating a fresh invitation to respond. The gist of the respondent’s reply was that there was no republication; secondly, the applicant had not only been given the opportunity to respond to the allegations in the 7 May 2015 article, but that its response was comprehensively (unedited) carried.

3.         The Ombud, correctly, said that the only real issue was the complaint about the right of reply.  He said in the event of such a complaint, the first question would be whether or not the reportage was critical of the complainant. As he puts it, it “means that the media are not obliged to ask each and every subject of reportage for comment – only those who are likely to be harmed by reportage ...”.  This was a correct approach. Coming to the facts of the case, the Ombud held that the reportage was indeed critical, and therefore warranted a right to reply.  Taking into account the content of the hyperlink, which incorporated applicant’s comprehensive response, the Ombud held that a right of reply had been afforded; applicant’s response was richly incorporated.  The complaint was therefore dismissed.

4.         I agree with the Ombud’s approach, and the basis for his conclusion. A few observations:

4.1   There is nothing critical about the applicant in the 2017 article per se,   warranting a right to respond. In this respect, the respondent points out that it did not, as alleged by the applicant, say that the latter “played a central role in defrauding their clients through the Strategic Growth Fund”. The respondent says: “We did not report that; therefore the complaint that we denied them the right to respond falls away.”  This must be accepted as correct.

4.2   The following submission by the respondent, with which I agree, provides an answer to the complaint: “Moneyweb submits that there was no obligation on it to afford any right of reply in respect of historical material referred to by way of contextual or background information only.  The reportage contained in the 2017 article related to a factual report of the findings of the GFSC.  As such this was akin to reporting on judicial proceedings, and there was no obligation to obtain comment from either of the sets of parties affected by the finding.  The repeating of factual background, long in the public domain, does not amount to new allegations of fact and nor can reference to historical material be regarded as reportage”.

4.3   I appreciate submissions about possible precedent on the issue of hyperlinks. But no real issue has arisen warranting going into that. The hyperlink in question would lead to the entire article of 7 May 2015; there were no damning extracts selectively imported into the 6th September 2017 article. The narrow issue in the present matter was simply the issue of the right to reply. It has been adequately dealt with by the Ombud and there is no need for the matter to be referred to the Appeals Panel solely for the purpose of exploring the possibility of a precedent one way or the other; maybe the need to do so may arise in future.

5. For the applicant to succeed with its application, it must show reasonable prospects of success before the Appeals Panel. As, for the reasons given by the Ombud and those mentioned above, there are no such prospects, the application is dismissed.

Dated this 5th day of December 2017

Judge B M Ngoepe, Chair, Appeals Panel