Ruling by the Press Ombud
2 July 2017
This ruling is based on the written submissions of Prof Billy Gundelfinger, on behalf of the family of the deceased Mr Sidney Frankel, and those of Charles Cilliers, digital editor of The Citizen newspaper, as well as on a meeting I had with the parties in Johannesburg on 28 June, 2017.
The Frankel family is complaining about a story in The Citizen of 13 April 2017, headlined Billionaire ‘paedophile’ Sidney Frankel dies.
Complaint
The Frankel family complains that the following statements were false and / or misleading as Mr Frankel had never been criminally charged – and, in fact, a certificate of nolle prosequi has been issued in respect of all the charges:
· “At the time of his death, Frankel was facing eight charges of child molestation and sexual abuse”;
· “ ‘Sidney Frankel has been abusing children for a very long time – and stands accused of molesting seven complainants who have come forward, who were entrusted to his care when they were very young children,’ Women and Men Against Child Abuse wrote in a statement in 2015 when news of the alleged abuse broke”; and
· “The criminal charges were held in stasis as they had prescribed due to them being older than 20 years.”
Gundelfinger calls this reportage reckless, unprofessional and irresponsible, and submits that it has caused the Frankel family great humiliation and embarrassment.
The text
The article, penned by Amanda Watson, said that at the time of his death Frankel was facing eight charges of child molestation and sexual abuse. The former stockbroker had reportedly recently died at his home in Johannesburg of cancer. However, legal action would still be going ahead, said Women & Men Against Child Abuse (WMACA) director Miranda Friedmann.
The journalist stated that Frankel had faced up to eight charges of child molestation and sexual abuse in what WMACA called “the worst-kept secret in Johannesburg’s business, Jewish and socialite communities”.
“Sidney Frankel has been abusing children for a very long time – and stands accused of molesting seven complainants who have come forward, who were entrusted to his care when they were very young children,” WMACA wrote in a statement in 2015 when news of the alleged abuse broke.
According to the summons before the South Gauteng High Court in Johannesburg, Frankel was accused of molesting the children at five different locations.
The arguments
Cilliers says the article made it clear that Frankel was still facing charges brought by eight people – which implied that those allegations had not yet been proven, adding that the article did not contain any new facts, and neither were any facts distorted.
He also argues that the word “charges” in the story did not bear a narrow, technical, legal meaning of having been formally charged and appearing in criminal court. He says, “Ordinary readers would understand that it refers to the civil matter. Just two paragraphs down, the article explains that ‘according to the summons … Frankel is accused of…’.”
He submits that the story did not say that the NPA was prosecuting or intending to prosecute – it merely said that Frankel was facing eight charges, which did not imply that it had to be related to the NPA.
He states, “The article makes it clear that prosecution by the state was, at the time of writing, not active because the alleged crimes exceed the normal 20-year prescription period. The word ‘stasis’ was used to convey this fact. In the civil case the failure to proceed with prosecution is, as the story conveys, being challenged. The word ‘stasis’ used in this context was therefore reasonable. I repeat that the article did not say that Mr Frankel had in fact been charged by the state or anyone else, and anyone who came to that conclusion after reading the full story must surely not have read it carefully enough.”
Cilliers explains that the journalist attempted to make legal jargon more accessible to readers by saying that the charges were “in stasis” until it could be decided whether the prescription period could be changed.
He says the Collins Dictionary defines:
· “stasis” as “a state in which something remains the same, and does not change or develop” – which, he says, encapsulated the status of the charges against Frankel; and
· “charges” as follows: “if you charge someone with doing something wrong or unpleasant, you publicly say that they have done it - eg, ‘He charged the minister with lying about the economy’.”
The digital editor adds he fails to:
· understand the basis for Gundelfinger expecting the newspaper to apologise for quoting a statement by WMACA made in 2015 – he asks, if Gundelfinger had a problem with that statement, why did he not take issue with it then?; and
· see what the story had to do with the Frankel family, as it did not mention or implicate any family member. He asks, “Why would anyone look more poorly on the Frankels as a result of our article, which was merely reporting on what was already widely reported on?”
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Gundelfinger replies it was not clear from the article that Frankel was contesting a civil claim – on the contrary, the inference was that he had been facing criminal charges. He questions Cilliers’s argument that the ordinary reader would have understood the charges to refer to a civil claim – arguing that the use of the words “complainants”, “facing up to eight charges of child molestation and sexual abuse” and the reference to “criminal charges” would rather have led readers to believe that the charges against Frankel were of a criminal nature. The attorney says, “If [the journalist] was [experienced] she should know the difference between criminal and civil proceedings, application proceedings and proceedings by way of action, would know that the term “in stasis” is not a term ordinarily used and would not have written her article in such a fashion but would have made it clear that the action pending involving the ‘complainants’ was an action for damages in which the various plaintiffs seek monetary compensation (R5million each) as general damages based on what they allege Frankel had done to them.” |
Cilliers responds that he was not relying on whether or not there was a civil matter, and calls this matter “irrelevant” and a “distraction”. He submits, “The ‘charges’ are charges, whether they were being pursued by the NPA or not. We made it clear that we do not feel that the NPA alone is the only judge of whether or not someone may or may not have done something wrong.”
He says he never said the charges were of a civil nature – they could very well have been of a criminal nature, and a private prosecution would nevertheless have been of a criminal nature, adding that Frankel was subject to civil cases as well as ongoing attempts to reopen the alleged cases of abuse as criminal matters.
Therefore, he argues, the debate should not be whether the matter was civil or criminal – fact is that charges were levelled against Frankel, and the newspaper did not dream that up.
Cilliers adds that the entire basis of this complaint initially rested on an assumption that the article somehow damaged Frankel’s relatives. “I noted that, in his response, the professor did not touch on this again in any way,” he remarks.
In conclusion, he says that singling out The Citizen for some sort of special treatment for reporting on something that was reported on widely seems odd and almost inconceivable.
Analysis
Facing eight charges
The sentence in dispute reads, “At the time of his death, Frankel was facing eight charges of child molestation and sexual abuse.”
It is important to state, at the outset, that there is no such thing as civil charges, only civil claims. If someone has been “charged”, it involves per definition a criminal matter.
The first hurdle was to understand how, on the one hand, Gundelfinger could say that Frankel has “never faced criminal charges”, but on the other that a certificate of nolle prosequi had been issued “in respect of all charges” (not “claims”).
Which “charges” have been withdrawn if Frankel never faced them? Did the certificate of nolle prosequi not imply that charges had indeed been laid – for how can one decide not to prosecute if no charge were laid in the first place? A decision to “discharge” a non-existent charge?
Gundelfinger explained that the eight complainants wanted to apply to the Constitutional Court to find unconstitutional the provision in law that charges of a sexual nature could not be laid if the alleged deed took place more than twenty years previously – but in order to file such an application, they had to lay charges against Frankel, knowing full well that the Police could not entertain the charges.
I therefore accept that those charges were never put to Frankel.
In this regard, it is important to understand what a certificate of nolle prosequi is, and what it is not. It means that the state had decided not to prosecute, which in effect amounts to a dismissal of charges. However, such a dismissal is not the same as an acquittal (which would prevent further court proceedings), as it leaves open the possibility of future legal action.
In layman’s terms, this means that a charge has been put on ice. (It is for a court of law to decide whether this means that the charges against Frankel could be re-instated if the law changes,)
So then, the following statements are undisputed:
· Several people have laid civil claims against Frankel;
· Those claims are still pending (after his death, against his estate);
· They have also laid criminal charges against him; and
· The state could not entertain those charges, as the alleged actions took place more than twenty years ago.
However, because of the fact that the charges against Frankel were not pursued, they were never put to him – and therefore, it cannot be correct to say that he had “faced charges”. One does not “face” a charge which has been dismissed.
The sentence in dispute should therefore have read, “At the time of his death, Frankel was facing eight civil claims regarding child molestation and sexual abuse.”
Women and Men Against Child Abuse
The disputed sentence read, “ ‘Sidney Frankel has been abusing children for a very long time – and stands accused of molesting seven complainants who have come forward, who were entrusted to his care when they were very young children,’ Women and Men Against Child Abuse wrote in a statement in 2015 when news of the alleged abuse broke.”
The issue is the statement, of fact, that Frankel “has been abusing children for a very long time”.
This part of the complaint is more complicated than may meet the eye; it flashes back different colours of the rainbow, depending from which angle one looks at this “diamond”.
If The Citizen stated it as its opinion that Frankel had been abusing children, I would have held it accountable and asked it for proof. In this case, though, the newspaper merely reported an accusation made by the organisation. (I have made several attempts to contact WMACA, wishing to confirm that the journalist quoted it correctly, but I have received no response.)
However, the media need to be careful when reporting allegations, as the repetition of defamation is also defamation. The mere fact that someone has made an allegation does not give the media a free hand to publish it.
I refer in this regard to a judgment by the Supreme Court of Appeal in Tsedu & Others vs. Lekota & Another (2009), where Nugent J A held the following: “A newspaper that publishes a defamatory statement that has been made by another is as much the publisher of the defamation as the originator is. Moreover it will be no defence for the newspaper to say that what was published was merely repetition. For while the truth of this statement (if it is published for the public benefit) provides a defence to an action of defamation, the defence will succeed only if it is shown that the defamation itself is true, not merely it is true that the statement was made.”
However, I should not give the impression that the media are not allowed, for example, to publish a statement that a politician is corrupt. That would be unthinkable in an open democracy.
The Supreme Court of Appeal provided insight into this issue in its finding on the matter of Mthembi-Mahanyele vs. Mail & Guardian Ltd and Another, Case 54 of 2003. The Court namely differentiated between defamation in a political context and defamation “generally”. Lewis JA argued that political speech weighed heavier than ordinary speech, arguing that the Constitution’s interest in free and robust political discussion necessitated such a differentiation.
But this complaint is not about political speech.
So, am I back to square one?
Not quite. I also need to take into account that a dead person cannot be defamed. The law against defamation has as its purpose the protection of someone’s interest – which a deceased does not have.
Given the above considerations, I do not have enough ground to find that The Citizen was in breach of the Code in this instance. I shall address the harm which the Frankel family might have experienced in this regard below.
‘In stasis’
“The criminal charges were held in stasis as they had prescribed due to them being older than 20 years.”
It is true, as Gundelfinger argues, that the term “in stasis” is not a term ordinarily used, and therefore was not easily understandable.
However, that in itself does not breach the Code of Ethics and Conduct.
Headline: ‘paedophile’
At the meeting, Gundelfinger added that the headline was misleading and that it has humiliated and embarrassed the family; he argued that the reasonable reader would not have understood the meaning of the inverted commas, and would have interpreted it to mean that Frankel was in fact found guilty on charges of paedophily.
I have to disagree – the use of quotation marks is an internationally accepted way of pointing out that the words used represented someone’s opinion, or to clarify that something was an allegation.
At the meeting, Cilliers changed the online headline to include the word “alleged” in front of the word “paedophile”. While I do appreciate this gesture, it was not necessary, as the two boil down to the same thing.
Causing the family humiliation, embarrassment
The Preamble to the Code states, “As journalists we commit ourselves to the highest standards, to maintain credibility and keep the trust of the public. This means always … avoiding unnecessary harm…”
Please note that the Code does not say that the media should never harm anybody; it is about not causing unnecessary harm.
I can well understand that the reportage has embarrassed and humiliated the family. The question, though, is not whether it has caused them harm, but rather whether it did so unnecessarily.
In this case, I believe that the Frankel family was caused some unnecessary harm – but not as much as was made out in the complaint.
Finding
Facing eight charges
The statement that Frankel, at the time of his death, was “facing” eight “charges” of child molestation and sexual abuse was incorrect and unfair to his family, probably causing them some unnecessary harm. This was in breach of Section 1.1 of the Code of Ethics and Conduct which says, “The media shall take care to report news truthfully, accurately and fairly.”
The rest 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 – minor errors which do not change the thrust of the story), serious breaches (Tier 2), and serious misconduct (Tier 3).
The breach of the Code of Ethics and Conduct as indicated above is a Tier 2 offence.
Sanction
The Citizen is directed to apologise to the Frankel family for stating that Mr Frankel was facing (criminal) charges at the time of his death, rather than civil claims, acknowledging that this might have caused the family some unnecessary harm.
The text should:
· be published:
o on the same page as that used for the offending article;
o online as well, as the offending article was carried on its website; and
o at the earliest opportunity after the time for an application for leave to appeal has lapsed;
The headlines should contain the words “apology” or “apologises”, and “Frankel”.
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