Darren Scott vs. Sondag
Ruling by the Press Ombudsman
October 14, 2013
This ruling is based on a written submission of Ms Tessa Stanford, on behalf of Mr Darren Scott, and Mr Andrew Boerner on behalf of Sondag newspaper.
PRIOR TO THE ACCEPTANCE OF THE COMPLAINT
Scott complains about a story on page 6 in Sondag, headlined Plain Gemors – Eks-vriend eis nou R4.3 miljoen oor verlies, published on 2 June 2013. This story occupied more than 50% of the page.
As there was a court case going on between Scott and Mr Anthony Duke, who was also mentioned in the story, there was disagreement between the parties if this office had a mandate to entertain the complaint at all.
After some correspondence between all concerned, and having taken into account arguments from both sides, I came to the following decision in this regard (all in italics):
Dear all
Below is my decision in the matter between Mr Darren Scott and Sondag newspaper. The story was headlined Plain Gemors – Eks-vriend eis nou R4.3 miljoen oor verlies, published on 2 June 2013.
There are currently legal proceedings before the Cape Town High Court between Scott and Mr Anthony Duke, which was reported in the story.
Sondag asked this office to reject the complaint on the basis of Section 1.6 of the Complaints Procedures that states: “Where at any stage of the proceedings it emerges that proceedings before a court are pending on a matter related to the material complained about…the Ombudsman…shall forthwith stop the proceedings and set aside the acceptance of the complaint by the Public Advocate.”
Scott’s firm asked this office to accept the complaint on the following grounds:
Scott’s attorney concluded: “Our client does not wish that the Council decide on matters which are in dispute in court proceedings. Our client wants the Council to use their power and authority to decide whether or not the newspaper contravened the Press Code…”
That is exactly right, which means that the interpretation of Section 1.6 is at the heart of this matter. This section is worded in rather general terms, and calls for some interpretation.
Scott’s attorneys offered a meaningful interpretation of this section. Two issues are at stake here:
In other words, the intention of Section 1.6 is for this office to not make decisions that may interfere with “a decision reserved for a court in a judicial proceeding” (the words of Scott’s attorneys). At the same time, though, this interpretation should not clash with the rest of the Code and with its spirit (which is underlined by a deep concern for sound, ethical journalism).
It also may be that parts of the complaint fall under Section 1.6 of the Complaints Procedures, and other parts don’t.
I therefore asked Scott’s attorneys for more clarity as to why they are persuaded that Section 1.6 does not apply in this case. They supplied me with court documents (which is exactly what I needed) in order to try to convince me that the largest part of the story in dispute falls outside of court proceedings.
So, based on my interpretation of Section 1.6 of the Complaints Procedures I firstly need to establish which parts of the story are about matters pending in court, and which aren’t. If there are complaints about the latter, I need to take them on.
I shall do this analysis sentence by sentence, or groups of them – comparing them with the court papers which are in my possession:
This part was about Scott’s racist behaviour that allegedly led to two media companies going bankrupt as result of his actions. The story reported that Duke had accused Scott of wasting R1.25-million in this process.
Even though these sentences represented Duke’s views, they are directly linked to the reasons that he is putting before the court as (at least part of) the reason why the companies went bankrupt. This matter is reflected in the first part of the summons (though the amount in the summons is R1.125-million and not R1.25-million, as reported).
This sentence said that Duke alleged that Scott had fraudulently taken sound equipment of R120 000.
There is no documentation at my disposal to substantiate that this matter would be part of court proceedings.
Even though these sentences reflected Duke’s views, they also tie up with the first part of the story, which is part of court documents.
The complainant admits that these sentences were about court proceedings that were pending.
These sentences had to do with Scott having lost his job and the companies having allegedly gone bankrupt because of that. Scott contests this accusation in court papers.
The whole of this part was comment by Duke about Scott’s alleged ill behaviour.
The rest of the story was about matters that were before the court.
Conclusion:
The only parts of the story that I can entertain (read: which is not likely to influence court proceedings) are:
I believe that the sentences in the second last bullet were not protected by Section 1.6 of the Complaints Procedures because they were of a general nature which covered matters that had little or nothing to do with his alleged racist behaviour (which was the main reason for the companies going bankrupt, according to Duke’s summons).
I am therefore asking Sondag to read the complaint in this light, and to respond accordingly.
In addition: I need to get clarity on the last sentence of the story, namely that Scott did not want to discuss the matter in public. This is part of the complaint. The newspaper needs to provide evidence that it did speak to Scott (email, fax, telephone record – whatever is appropriate).
After I have received the newspaper’s reply, I shall ask the complainant for a response before taking the matter any further.
COMPLAINT
From the above, it should be clear that if I have erred in this matter, I did so on the side of caution.
The following matters in a story in Sondag are now in dispute:
· Scott fraudulently took sound equipment worth R120 000 from the company; he wrote out a cheque to himself; and he removed the equipment from the site; and
· Matters of a personal nature (details below).
The complaint includes that the newspaper did not adequately seek Scott’s response prior to publication.
Scott concludes that the story was one-sided, defamatory and an attack on his dignity and reputation – and that it was not in the public interest.
(Although I did not specifically ask Sondag to reply to this specific issue, Scott’s complaint is permeated by these allegations – in fact, they do not constitute a separate part of the complaint, but is rather a consequence of the preceding matters. If he did not specifically mention it, I would in any case have considered the relevant Section in the Press Code – 4.2).
ANALYSIS
The story, written by Johan Eybers, was about civil action that Duke took against Scott after the latter’s racist remarks regarding a black colleague at radio station Jacaranda.
Sound equipment
The story said that Scott fraudulently took sound equipment worth R120 000 from the company; that he wrote out a cheque to himself; and that he removed this equipment from the site.
Scott says that the sale of the sound equipment was an above board transaction that occurred in December 2011 – before the process for the application for the liquidation of the companies was initiated (in April of the next year). “The companies were in need of cash-flow at the time and all the members, except Duke who failed to respond, agreed to the sale (90% of the members therefore agreed). There was nothing underhand about the sale. The market value was paid by cheque into the companies’ account.”
Sondag responds that Scott did not attach the resolution passed by the board authorizing the sale of the sound equipment in order to prove that the equipment was sold before liquidation proceedings began; he also did not indicate to which companies the money was paid and whether or not a cheque was made out to him “as this is not specifically denied”.
Scott replies that Eybers should have obtained the information before the story was published – the onus was on the journalist to provide such proof, not on him. He nevertheless attached proof of payment for the sound equipment, dated 12 December 2011. This document stated that the beneficiary is Valucorp 454 CC (of which Scott was a member); he attached another email which notified all interested parties, including Duke, that the application for the liquidation of the CC had been launched (dated 25 April 212, some months after the equipment was sold).
Please note that Scott supplied me with credible documentation to substantiate the above.
Scott is correct – the onus was indeed on the newspaper to verify this allegation by Duke. In the absence of such verification, and based on the documentation provided by Scott, I cannot but conclude that this specific allegation was unfounded and that it was unfair of the newspaper to publish it. (Please note that I am not saying that this allegation, or any of the other allegations for that matter, was untrue – that is not for this office to decide. I am merely stating that, given the lack of verification that the newspaper had at the time, it should have refrained from publishing such a damning statement.)
Section 2.4 of the Press Code is clear about the verification of statements. The fact that the statement in dispute was presented as an allegation by a source did not diminish the newspaper’s duty to adhere to this specific part of the Code.
It is a well-known statement in law that the repetition of defamation is also defamation. Applied to the Press Code, this means that the repetition of a statement that unfairly damages somebody’s reputation and dignity is also causing unfair damage to that person’s reputation and dignity.
I shall return to this matter shortly.
Matters personal
The story quoted Duke as saying that:
· when the company was declared insolvent in December 2011, Scott called Duke a c***t who did not have the “balls” to face him personally;
· Scott threw his cell phone away because he could not handle the negative comments due to his racist words;
· it was a nightmare to work with Scott;
· when the latter was drunk, he used to phone Jacaranda’s management and picked fights with them – while they were responsible for more than 9% of the station’s income;
· he had to handle matters at the station when Scott was once absent due to his drinking and a fight with his wife;
· Scott ended up in hospital after his partying; and
· Scott warned him in March 2011 about an article that was due to be published in a well-known family magazine in which his alleged marital problems, adultary, drunkenness and use of cocaine would have been revealed (Scott reportedly said that the magazine was sympathetic towards his problems with alcohol and depression).
Following the bullets above, Scott replies that:
· it was untrue that he could not face Duke – on the contrary, he tried to get hold of him on numerous occasions and says that it was the other way around (Duke snubbed him). He says that he as records of his SMSs to Duke to prove his point;
· he did not throw his cell phone away (if Duke was not in contact with him, how then did he know this?);
· he was always respected in the workplace as someone who was easy to work for and with;
· he SMSed two people on different occasions (neither were from Jacaranda). The first person wrongly assumed that he was drunk, and has since apologized to him for the false allegation; the second one spread the (false) rumour that he was inebriated;
· he never was late or absent from work without giving ample warning and good reason to all concerned, and says that this statement was entirely untrue and defamatory to him as well as to his family. He adds that Duke was never involved in any way in his personal affairs and states that he at all times remained professional and kept his personal affairs private;
· he was admitted to hospital for acute bronchitis and chest pain, and not because of drug or alcohol abuse – and again, Duke was not privy to his personal affairs which means that, once again, he was relying on hearsay; and
· the article was not about cocaine addiction (which he denies), but rather about the normal strains put on his marriage from a demanding work schedule (which is why he turned to the aid of a psychologist) who helped him to cope with his temporary depression. He denies that he ever discussed the article with Duke as the latter was never a friend or confidant of his.
The newspaper ignores all of the above, save for requesting a proof of these SMSs (that Scott allegedly sent to Duke).
Scott replies: “The request for phone records is…irrelevant…What is denied…is that [Duke] had tried to get hold of [him] months prior to December 2011.”
Again, Scott is correct – his SMSs (or the lack thereof) is not the issue here. What is at stake, is the question how justified Sondag was in publishing all of the above allegations against Scott. Please note that the nature of some of these allegations are extremely serious (read: fraud, adultary, cocaine addiction, problems with alcohol, etc.) and certainly potentially damaging to him.
And yet, the publication did not provide any justification for its reportage – in fact, it did not even attempt to do so in order to try and back up its story (probably because it could not do so in the first place).
I need to point out that the Preamble to the Press Code specifically states that journalists commit themselves to the highest standards of excellence, which inter alia means “avoiding unnecessary harm” – which clearly did not happen in this case.
Not adequately seeking Scott’s response
Scott complains that the newspaper did not adequately seek his response prior to publication. He says that the reported contacted him once (when he was working in Mozambique), upon which he told him that he did not wish to discuss the litigation involving Duke in the press. However, her says that the journalist did not mention that Duke’s allegations were of a personal and defamatory nature. Scott argues that the reporter should not have reasonably expected him to deal with these matters telephonically.
Sondag says that Eybers phoned Scott two days prior to publication, stating that he would be running a story regarding the ongoing dispute between him and Duke. “The reporter stated that the source made certain allegations about [his] personal life and their business relationship which had gone sour.” Eybers claims that Scott became “extremely agitated” and said that he was not prepared to discuss the matter before putting down the phone in his ear. (This conversation lasted 1 minute and 19 seconds.)
The newspaper concludes that Scott decided not to engage with Eybers, “therefore he cannot now allege to be a victim of his own inaction”.
Scott calls Sondag’s explanation of the reporter’s endeavours of obtaining comment from him (after hours on a Friday, less than two days before publication) “very weak”. He adds that the newspaper could have contacted his attorneys for comment (he notes from the publication’s response to the complaint that it was aware the Scott had attorneys on record).
In later correspondence he says that he was busy with a radio interview when Eybers phoned him, and told him as much. He states that the reporter merely stated that Sondag was going to publish an article about the dispute between him and Duke and that the latter had made several allegations against him. He then informed the journalist that he was busy and that the dispute would be decided by a court – his response to Eybers clearly indicated that he was not informed as to the content of Duke’s allegations. He argues that, had he known the extent of the defamatory allegations, he would have responded other than merely saying that the matter was for the courts to decide.
Scott notes that Eybers spoke to Duke on 16 May – more than two weeks before he phoned him, and asks: “Why was the ‘attempt at obtaining’ comment from [him] asked more than 2…weeks after the interview with [Duke] was conducted? Why did [Eybers] wait until after the close of business on the Friday before that Sunday’s publication to contact [him]? It is clear that [Sondag] had an agenda and intended to ambush [him], back him into a corner and intentionally failed to disclose fully what would be published.”
From this Scott concludes that he was misled and, even if he would have been in a position to offer informed comment, the time given for such a response was not reasonable (as required by Section 2.5 of the Press Code). He adds that the argument that he “elected not to engage” was unfounded, if not disingenuous – he argues that he was not properly informed and was therefore not given a reasonable opportunity to comment.
I am not in a position to determine exactly what transpired during the conversation between Eybers and Scott. However, common sense dictates that any reasonable person would have responded if he or she knew the extent of the allegations that Duke had levelled against Scott in this instance. I submit that it was more reasonable to accept that Scott did not know the particulars of the allegations, including those that were not relevant to the court case – which is why I am giving him the benefit of the doubt on this issue. I also note the relative short duration of the phone call, in which it would probably have been impossible to mention all Duke’s allegations against him.
But there is more (to substantiate this argument): It is indeed strange that Eybers (an “experienced journalist”, according to Sondag) waited for more than two weeks to ask Scott for comment, and when he eventually did so, only managed to contact him a day before his deadline – and after hours, at that.
To add injury to insult, Eybers elected not to contact Scott’s attorneys.
My sense of justice and fairness dictates that the journalist should have done the latter, or explained to Scott in detail what the allegations were all about, before publishing these accusations. What was the hurry to publish?
This leads me to also believe that the last sentence of the story, namely that Scott had said that he did not want to discuss the matter in the media, was misleading – clearly, to him “the matter” referred to his court case, while in fact there were many allegations in the story that did not affect this case at all.
One-sided attack on Scott’s dignity, reputation
Scott correspondence is permeated by his complaint that the story was one-sided, defamatory and an attack on his dignity and reputation – and that it was not in the public interest.
The matter was in the public interest, as Scott was a well-known public figure at the time. However, I also have little doubt that the story was indeed one-sided and resulted in an unfair attack on Scott’s dignity and reputation.
General comment
This matter is of immense importance, not only to Scott and Sondag, but also to the press in general – as in a way it goes to the heart of what ethical journalism should be all about.
This is why:
· Sondag published the opinion of one source only, (which all journalists should know is a highly dangerous thing to do);
· This specific source was engaged in a court battle with the person that he had made remarks about. The publication should therefore have been sensitive as to this source’s possible motives, which should have made it doubly cautious to publish the serious allegations that it did;
· Taking the above into consideration, the mere use of the word “alleged” is not nearly enough to soften the blows that the story unfairly dealt Scott; and
· The newspaper’s lack of asking Scott the relevant questions served to aggravate the above.
I often wonder if reporters, after having considered all journalistic principles and practices, also take into account how they would have felt/reacted if a publication went overboard as has happened in this case. Maybe, if the shoe is for once on the other foot, journalists would begin to understand the potentially (unnecessary) destructiveness of their power.
The extremely serious nature of the unfounded allegations against Scott, resulting in potentially causing him huge unnecessary harm, and the extent to which this transgressed the Press Code will be reflected in the sanction below. My only concern is that the sanction, while hopefully going a long way to limit the unnecessary and unjustified damage caused to him, can never really restore all of this harm.
Let me reiterate that, when I come to a finding and a sanction, I do not only take into account the prominence that a story enjoyed – I also (and especially) consider the seriousness thereof. If someone feels that my sanction is too strict, it should be interpreted in that light.
FINDING
Sound equipment
It was unfair to publish this potentially damaging statement without the necessary verification, or without stating that it could not be verified. This is in breach of the following Sections of the Press Code:
· 2.1: “The press shall take care to report news…fairly”; and
· 2.4: “Where there is reason to doubt the accuracy of a report and it is practicable to verify the accuracy thereof, it shall be verified. Where it has not been practicable to verify the accuracy of a report, this shall be stated in such report.”
Matters personal
The publication of the allegations in dispute is in breach of Section 2.1 and 2.4 of the Press Code, for the same reasons as mentioned above.
Not adequately seeking Scott’s response
Sondag’s inadequate attempt to obtain meaningful comment from Scott is in breach of Section 2.5 of the Press Code that states: “A publication shall seek the views of the subject of critical reportage in advance of publication… Reasonable time should be afforded the subject for a response…”
The statement that Scott did not want to discuss “the matter” in the media was misleading and in breach of Section 2.2 of the Code: “News shall be presented in context and in a balanced manner, without any intentional or negligent departure from the facts whether by distortion…or misrepresentation…”
One-sided attack on Scott’s dignity, reputation
The part of the story that is the focus of this ruling is in breach of the following Sections of the Press Code:
· 2.1: “The press shall take care to report news…fairly”; and
· 4.2: “The press shall exercise care and consideration in matters involving dignity and reputation…”
The complaint that the story was not in the public interest is dismissed.
SANCTION
Sondag is directed to:
· unconditionally apologise to Scott for unfairly damaging his reputation and dignity, without the necessary justification to do so, singling out the hugely damaging allegations about fraud, infidelity, cocaine addiction and problems with alcohol;
· publish the text below on page 6 (this text is in Afrikaans, for obvious reasons), together with a headline that includes the word “apologise” (Afrikaans: “vra om verskoning”); and
· publish the full Press Code on page 6, including the Preamble – it should cover the whole page and not allow for any other text to be published on that page (Section 8.2 of our Complaints Procedures reads: “ ‘Space fines’ shall be applied by way of the amount of space imposed to be correspondent with the seriousness of the infraction”). The text should be accompanied by the words: “Published as directed by the Press Ombudsman”.
Beginning of text:
Sondag vra die gewese TV-aanbieder Darren Scott onvoorwaardelik om verskoning omdat ons, sonder die nodige regverdiging, sy reputasie en waardigheid aangetas het deur onder meer beskuldigings van bedrog, egbreuk, kokaïn-gebruik en drankprobeme teen hom te publiseer – en omdat ons in dié proses hom groot en onnodige skade berokken het.
Scott het ‘n klag by die Persombudsman ingedien oor ‘n storie op bladsy 6 onder die opskrif Plain Gemors – Eks-vriend eis nou R4.3 miljoen oor verlies, gepubliseer op 2 June 2013. Die artikel, geskryf deur Johan Eybers, het gehandel oor regsaksie wat mnr. Anthony Duke teen hom aanhangig gemaak het nadat Scott verskeie kere rassistiese opmerkings oor ‘n swart kollega by die radiostasie Jacaranda geuiter het.
Die Ombudsman, Johan Retief, het slegs daardie dele van die storie onder oë geneem wat nie op die hofsaak betrekking gehad het nie.
Hy het bevind dat ons, sonder die nodige regverdiging daarvoor, onregmatiglik verskeie ernstige aantygings teen Scott gepubliseer het. Hy het ook gesê dat ons nie genoeg moeite gedoen het om Scott om kommentaar te vra nie, en dat die stelling in die storie dat Scott nie die saak in die media wou bespreek nie, misleidend was.
Retief het daarop gewys dat dit nie sy taak was om te bepaal of al die aantygings teen Scott waar was of nie – hy het slegs bevind dat ons nie die verdoemende beskuldigings moes gepubliseer het sonder die nodige verifikasie of grond daarvoor nie.
“Dit is ‘n bekende stelling in die reg dat die herhaling van laster ook laster is. Toegepas op die Perskode, beteken dit dat die herhaling van ‘n bewering wat iemand se reputasie en waardigheid onbillik aantas, ook daardie persoon se reputasie en waardigheid op ‘n onbillike manier aantas,” het hy gesê.
Hy het daarop gewys dat die inleiding tot die Perskode joernaliste daartoe verbind om te strewe na die hoogste etiese standaarde, wat onder meer beteken om onnodige skade te vermy – “wat duidelik nie in hierdie geval gebeur het nie.”
Retief het gesê dat hierdie saak van groot belang is – nie net vir Scott en die koerant nie, maar ook vir die pers in die algemeen, omdat dit op ‘n manier die hart van etiese joernalistiek raak.
Dit is hoekom:
· Ons het die mening van slegs een bron geplaas (alle verslaggewers behoort te weet hoe gevaarlik dit is);
· Hierdie spesifieke bron was gewikkel in ‘n hofsaak teen Scott – ons moes daarom sy moontlike motiewe verreken en versigtiger as gewoonlik gewees het om daardie bewerings te publiseer;
· Die blote gebruik van die uitdrukking “na bewering” was nie naastenby genoeg om die onnodige skade te beperk wat ons Scott aangedoen het nie; en
· Ons versuim om Scott kans te gee om op die relevante sake te reageer het bogenoemde vererger.
He het bygevoeg: “Ek wonder dikwels of verslaggewers, nadat hulle al die jornalistieke beginsels en praktyke oorweeg het, ook in ag neem hoe hulle sou gevoel/gereageer het as ‘n publikasie só teen hulle oorboord sou gaan. Miskien, as die skoen aan die ander voet is, sal joernaliste begin om die (onnodige) vernietigende krag van hul invloed te verstaan… My enigste bekommernis in hierdie verband is dat, terwyl hierdie bevinding hopelik die onnodige en ongeregverdigde skade wat dit hom veroorsaak het sal beperk, dit nogtans nooit al hierdie skade ongedaan sal maak nie.”
Besoek www.presscouncil.org.za vir die volledige bevinding.
End of text
APPEAL
Our 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 Adjudication Panel, Judge Bernard Ngoepe, fully setting out the grounds of appeal. He can be contacted at Khanyim@ombudsman.org.za.
Johan Retief
Press Ombudsman