Colin Gabriel vs. The Herald


Tue, Mar 14, 2017

Ruling by the Press Ombud

14 March 2017

This ruling is based on the written submissions of Mr Colin Gabriel and his attorney, Mr Ahmed Gani (from Gani Mayet Attorneys), and those of Nwabisa Makunga, deputy editor of The Herald newspaper.

Gabriel is complaining about several articles in The Herald ranging from 26 August 2015 to 14 December 2016. The Public Advocate allowed this complaint despite its lateness, as a court case had been underway and she advised Gabriel to wait with his complaint until the case was over.

The articles in question are:

·         Bay radio presenter arrested for stalking – Kingfisher FM employee to be charged with sexual assault after phone’ threats’ (front-page lead, 26 August 2015);

·         Alleged stalker released on bail – details of explicit phone calls emerge as probe into radio presenter widened (front-page lead, 27 August 2015);

·         Banner shock for woman in sex case (23 October 2015);

·         Student to push ahead with sexual assault case (25 November 2015);

·         Ex-DJ’s case postponed, and Former presenter’s case postponed (27 November 2015);

·         Case lays sex parameters (12 January 2016);

·         Lawyer for radio man accused of rape threats wants to stop case going to trial (8 June 2016);

·         Sexual assault case to go ahead (10 June 2016); and

·         Sex case against radio presenter dropped by state (front page, 14 December 2016)

Complaint                                            

In general, Gabriel complains that the reporting was inaccurate, unfair, unjustified, malicious and damaging towards his reputation.

The gist of his complaint is that the reportage was misleading in that he falsely had been called an alleged stalker and had allegedly threatened to rape a female student; and that the newspaper did not ask him or his attorney for comment.

He also complains that several other statements were false and / or misleading (details below).

The texts

The articles were about Gabriel allegedly sexually stalking a female student, who laid a charge against him. This led to his arrest, but the charge was eventually withdrawn.

The complaint in more detail

In addition to his main complaint (as cited above), Gabriel also complains that the following statements were false and / or misleading:

·         The student met him when he was promoting a charity event – but the article omitted to state that she was a participant in the competition (and that she finished in the last place);

·         The police officials walked into the offices and asked for him – but instead, they confronted him while standing outside Kings Court Mall;

·         Police officers who arrested him went undercover and posed as customers;

·         Attempts were made to get him to stop calling the student – this was false as nobody contacted him to make him aware of any allegations against him;

·         He took the police to his home after his arrest;

·         The police confiscated several communication devices at his home;

·         Police said that they believed he might have harassed other women and appealed to them to come forward. Furthermore, his name was never released to the public, which begs the question as to how the community would know who stood accused of harassment;

·         A claim that he would like to mount the student like a horse and have forceful sex with her – insinuating that the student made this allegation, while she had not referred to it in any of her statements, neither was this information contained in the crime lab report;

·         He showed little emotion in court when his bail conditions were discussed – the reporters were not psychologists qualified to assess emotion (instead, that experience was traumatic for him);

·         He had allegedly organized a protest in which the student’s  name was plastered across a banner, branding her a liar – he was aware of the protest, but did not organise it; and

·         At the protest march, he stood aside, smiling, as a group chanted that the charges against him should be dropped.

To these complaints, Gabriel adds that a journalist who wrote some of the stories posted a “like” on social media in reaction to negative comments regarding him – which, he says, demonstrates her bias towards him. He also says that the father of the student who took him to court was the managing director of Iron Man South Africa and has business ties with The Herald which, he claims, represented a conflict of interest.

The Herald

In general, Makunga says Gabriel’s complaint is disingenuous – previous complaints claimed that certain statements made in the newspaper had not appeared on the charge sheet against him. “Once it was proved that they were he changed his tune saying these statements were not in the [student’s] statement. He now forwards volumes of information to the ombudsman with the exception of the charge sheet. One can only assume that this is because he does not like the information contained in the charge sheet.”

Main complaint

Makunga says the information about stalking was provided to The Herald by a source with intimate knowledge of the case, saying that Gabriel was charged as he had “stalked” the young woman, making  constant calls at all hours of the day and night.

He says that, according to the charge sheet, Gabriel ? by phoning her constantly ? was alleged to have inspired the belief in the woman that she would be sexually assaulted. The Oxford Dictionary defines a stalker as someone who harasses or persecutes someone with unwanted and obsessive attention, he says, adding that the use of the word “stalking” was therefore justifiable.  

The deputy editor notes there is no provision in the Code of Ethics and Conduct stating that an attorney should be contacted to comment on what is said in the court room.

Other complaints

Makunga adds: 

·         Reliable sources with intimate knowledge of the case told the journalist where Gabriel had been arrested as well as where some of his goods had been confiscated;

·         The statement about the police having been “undercover” referred to the fact that they were in civilian clothing;

·         In line with the Code of Ethics and Conduct, the newspaper refrained from providing more information about the charity event so as not to identify him;

·         The call for further victims to come forward was an official one from the police (the request was attributed to spokesman Alwin Labans) and the story provided the detective’s name and telephone number;

·         The reporter did not claim to have known Gabriel’s feelings – he simply commented on his appearance and demeanour, which is an acceptable part of news reporting;

·         The story did not state as fact that Gabriel had organised the protest march;

·         The statement that Gabriel was standing aside and smiled can be corroborated by journalists from other media houses who also witnessed the protest;

·         The comment by the journalist on Facebook had no bearing on her reporting; the suggestion that the reporter should not have engaged in a social media post about this story amounts to a gross violation of her freedom of expression, professionally and personally;

·         Gabriel himself states that, as his name was not released, no one would know who stood accused of harassment; it is confusing that he claims his dignity was impaired yet also claims that the community could not know it was him; and

·         There was no business or personal relationship between The Herald and the student; he invites Gabriel to provide proof of such a relationship. Even if there had been such a relationship, he says it would have had no bearing on editorial decisions.

In conclusion Makunga says, “The facts reported were true or substantially true and the articles were based on fair comment and accurate reporting of court proceedings [and the articles were] prepared in accordance with acceptable principles of journalistic conduct and in the public interest.”

Gabriel, through Gani

Gani inter alia refers to The Promotion of Equality and Prevention of Unfair Discrimination Act, 2000, which prohibits the publication of words that could reasonably be construed to demonstrate a clear intention to be hurtful, harmful, incite harm or promote hatred, and The Protection of Information Act, 1982, which provides for the classification of state documents and prohibition on publishing some of them.

Main complaint

Gani says the newspaper sensationalised Gabriel’s actions to the point of creating an impression of him as a serial sexual predator. The use of the word “stalking” in the headline had the impact of sentencing the suspect before trial, he argues.

While The Herald quotes verbatim from the charge sheet (“mount you like a horse” and “have forceful sex”), the attorney attests that such statements were absent from the student’s police statement (which, he says, forms the basis of the charge). “Therefore the Herald failed to report fairly and accurately,” he argues.

In failing to get comment from Gabriel, the newspaper neglected its duty to verify the accuracy of the stories, he adds. This also goes for the story about the protest march, where The Herald accepted the victim’s version that Gabriel had organized the protest – but without obtaining comment from him.

Other complaints

Gani says that, by its own admission, The Herald states that it obtained its information from a source that was not allowed to talk to the media, but who was involved in the case. “This fact should have alerted the journalist to a possible misrepresentation of the facts and should have cautioned against printing such misrepresentations,” he argues.

The attorney also notes one article stated that plain-clothed police officials walked into the “office” – however, two sentences later it was stated that undercover police detectives had to pose “as customers” to intercept the presenter. “This is a clear and apparent distortion and exaggeration of the facts,” he attests.

Analysis

It is not in dispute that Gabriel was arrested (on 25 August 2015) on a charge of sexual assault in terms of the Sexual Assault Offences Act, 32 of 2007, and that the prosecutor withdrew the case on 13 December 2016.

Main complaint

Arguments about the charge sheet flew to and fro in the parties’ correspondence to this office (ranging from Gabriel providing me with a multitude of information yet failing to include the charge sheet, to claims that the student’s police statements excluded certain words and phrases used in the charge sheet).

From a journalistic perspective, both the charge sheet and the student’s statements are important and relevant documents in their own right. It is not for the newspaper to critique a charge sheet (by comparing it to what was contained in the statements to the police) – it is an official document which could be reported as is.

Nothing ? certainly not the absence of certain matters from police statements ? stops the newspaper from reporting the contents of the charge sheet. It remains important to note what the charge sheet says.

It mentions that the charge was one of “sexual assault”, and explains (unedited):

“In that for the period of 26 July 2015 till 24 August 2016 and at or near Port Elizabeth…the said accused did unlawfully and intentionally inspire the belief in the complainant to wit [name withheld by me] that the said complainant would be sexually violated, by: phoning her constantly telling her how he is having sex with her, making sex sounds, telling her how is climaxing sexually because of her, he wants to push his private part hard and deep in her private part, be wants to bent her over and have sex with her from behind, he constantly thinks about her and she makes him sexually aroused, he would like to force open her legs and have forceful sex with her, would like to mount her like a horse, he wants her hands behind her back so that she cannot stop him from doing what ever he wants to do.”


I now need to comment on the word “stalker”.

Combining definitions from several authoritative dictionaries, this word denotes a person who harasses another person over a period of time, often sexually, in an aggressive, often threatening and illegal manner.

The mere fact that the student laid a charge against Gabriel shows that (to her) his attentions were unwanted and threatening.

Given the dictionary definitions as well as the content of the charge sheet, I submit it was reasonable for the newspaper to have used the words “alleged stalker”, even though the word itself does not occur on the charge sheet.

I therefore find the deputy editor’s argument that a source used the word in dispute quite redundant.

I also note that the word “stalking” was used in two of the headlines – and in neither was this stated as fact. The one said that he was “arrested” for stalking (which does not pronounce a judgment on his guilt), and the other called him an “alleged” stalker.

Secondly, in court reporting it is normal journalistic practice not to get comment from the parties.

Other complaints

My considerations about the following matters are as follows:

·         The fact that the student was participating in the competition was not material to the story and the omission of that issue cannot be construed as a breach of the Code;

·         It is reasonable to believe the police were concerned that Gabriel might have harassed other women, therefore appealing to them to come forward; besides, this statement was properly attributed;

·         The journalist was justified to state his observation that Gabriel showed little emotion in court during his bail application – this is standard journalistic practice, and reporters do not have to be qualified psychologists to report on the visibility of emotion;

·         Journalists have the right to voice their opinions on social media. However, reporters should be careful not to compromise themselves on stories reported by them. If journalists do compromise themselves with personal opinions (speaking on their own behalves and not for the newspaper), it becomes a matter between the editor of that publication and the reporter; and

·         I have no evidence of any conflict of interest.

The police officer who arrested Gabriel, Sergeant Sonika van der Merwe, said in her statement: “I visited the workplace of Mr Gabriel and found him standing outside.” Based on this document, which is as official as the charge sheet, it was inaccurate to state that police officers “walked into [Gabriel’s] offices and asked for him”.

However, I do not believe much turns on this – the fact remains that Gabriel was arrested, whether inside or outside the building.

Adding to this, Van der Merwe stated that she arrested him and confiscated some material – she did not specify where this happened – at the scene of the arrest, or at his home. I am therefore not in a position to find for or against the complaint that he took the police to his home after his arrest and that they confiscated items at his residence (all I have, are conflicting statements by Gabriel on the one hand and by the newspaper’s sources on the other). The same goes for the allegation that the police officers who arrested him went undercover and posed as customers.

I am also not in a position to make any finding on alleged attempts to prevent Gabriel from calling the student, as I have no evidence to support a finding either way.

The protest march

I am dealing with the article about the protest march separately, as this was not about the court case.

The complaint is that the story alleged that he had organized a protest march in which the student’s name was plastered across a banner, branding her a liar, and that, at the march he stood aside, smiling, as a group chanted that the charges against him should be dropped.

The story said that the alleged perpetrator in a sexual assault case (Gabriel, but without mentioning his name) allegedly organized a protest in which the alleged victim’s name had been “plastered across a banner, branding her a liar”.

The allegation that Gabriel had organized the march was published as such, not as fact. This was justified, on condition that the newspaper also asked his opinion on this matter.

The story reported that he did not want to comment – and I have no reason to believe that the journalist did not attempt to get his comment.

I also find the reporting that Gabriel stood aside and smiled quite reasonable, and again I have no reason to find for the complainant in this regard.

Finding

Main complaint

The complaint about the use of the word “stalker” is dismissed.

The complaint about not having asked Gabriel or a representative for comment regarding the court case is dismissed.

Other complaints

The following issues are dismissed:

·         The omission to state that the student was participating in the competition;

·         Reporting that the police said they believed Gabriel might have harassed other women, and therefore appealed to them to come forward;

·         The journalist’s observation that Gabriel showed little emotion in court;

·         The journalists comment on Facebook; and

·         A conflict of interest.

Issues about which I am not in a position to make a finding:

·         Whether Gabriel took the police to his home, where they confiscated some items;

·         Whether the police officers who arrested him went undercover and posed as customers;

·         Alleged attempts to prevent Gabriel from calling the student, as I have not evidence to support a finding either way.

The statement in the story headlined Bay radio presenter arrested for stalking ? that police officers walked into Gabriel’s offices and asked for him ? was inaccurate and in breach of Section 1.1 of the SA Code of Ethics and Conduct which states, “The media shall take care to report news … accurately…”

The protest march

This part of the complaint is dismissed.

Seriousness of breaches

Under the headline Hierarchy of sanctions, Section 8 of the Complaints Procedures distinguishes between minor breaches (Tier 1), serious breaches (Tier 2) and serious misconduct (Tier 3).                                                                                        

The breach of the Code of Ethics and Conduct as indicated above is a Tier 1 offence.

Sanction

The Herald is cautioned for inaccurately stating that police officers walked into Gabriel’s offices and asked for him, and is asked to correct this statement.

The text should:

·         be published:

o   early in the newspaper;

o   online as well, if the offending articles were carried on its website;

  • refer to the complaint that was lodged with this office;
  • end with the sentence, “Visit www.presscouncil.org.za for the full finding”; and
  • be approved by me.

The headline should properly reflect the content of the text (read: the caution).

The newspaper is free to report the parts of the complaint that were dismissed.

Appeal

The Complaints Procedures lay 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.

Johan Retief

Press Ombud