Ruling by the Press Ombud
28 September 2016
This ruling is based on the written submissions of Gill Moodie and those of Damien Terblanche, on behalf of Independent Newspapers.
Moodie is complaining about a story in various Independent daily newspapers and on IOL of 23 and 24 August 2016, headlined Exposé: The dirty tricks campaign against Independent.
The piece was carried inter alia in the Cape Times, The Star, Cape Argus, Pretoria News, Daily News and IOL.
Moodie complains that the:
· article falsely labelled her as a “propaganda journalist”, a member of a “white boys’ club” and, by implication, a “virtual plant of the Democratic Alliance in our newsrooms”;
· thread of commentary which ran through the piece violated the tenets of truthful, accurate and fair reporting;
· media house did not seek her comment prior to publication, even though the text was presented as reportage;
· media house allowed commercial, political, personal or other non-professional considerations to influence or slant reporting; its piece also represented a conflict of interest, as it could lead audiences to doubt the media’s independence and professionalism; and
· text did not clearly distinguish between fact and opinion – “It is presented as a journalistic expose yet it is a castle made of sand, light on facts and heavy on opinion, supposition, insinuation and unbridled insults presented in the frame of alleged investigative journalism.”
The article was “[an] exposé of the collusion, misinformation, defamation and sabotage against Independent Media, its executive chairman and associated companies, and all its employees, based on research conducted by the Journalism Intern Investigative Unit of Independent Media.”
The text painted a “staggering” picture of negative reporting against Independent, Survé and Sekunjalo; it compared this picture with articles on other media houses – and accused several journalists of being part of a largely white, orchestrated propaganda scheme whose goal was the protection of white privilege at media houses.
The Journalism Intern Investigative Unit credited for the piece mentioned Moodie as one of those journalists.
The complaint in more detail
In addition to her complaint, as outlined above, Moodie says she is a professional journalist of more than twenty years’ experience and currently a commissioning editor for non-fiction at a leading South African publisher. “My integrity, professionalism and independence are at the heart of my career and these sweeping and defamatory statements are unjustified, malicious and extremely damaging,” she argues.
She calls the article “[an] opinion-fuelled defence of Independent Media’s executive chairman Iqbal Survé. It is clearly motivated by commercial, political, personal and other non-professional considerations. It is a clear conflict of interest and breaches the wall which should exist between commercial and editorial interests in a media institution and which the code seeks to entrench.”
Moodie notes that the article was authored behind the anonymous byline of the hitherto unknown Journalism Intern Investigative Unit. “As a long-standing media professional who has reported widely on all South Africa’s major media institutions this entity is unknown to me. It would be instructive – and shine a light on what I believe is a breach of clause 2.1 – if further information on the identity of the individual author/authors were revealed in the course of this process,” she adds.
She also complains that the article violated “almost all” provisions of Section 7 of the Code of Ethics and Conduct. She submits, “The views presented are clearly inspired by malice, cannot be an honestly held opinion and, even if they were, are not presented in a manner that it ‘appears clearly to be comment’.”
In conclusion, Moodie says that “[this] piece of work is a disgrace to our profession and breaches the code so flagrantly that I find it difficult to believe it was authored by professional journalists. I believe the breaches are severe enough to be considered a Tier Three: Serious Offence and to attract the full sanction that the Code provides for such a level of offence”.
Terblanche says during the period of May to early July 2016, Independent Media and Survé have experienced a barrage of severe attacks in the media. The severity of these attacks prompted the publisher to mandate a team of independent researchers (“the team”) to investigate the various claims made against the company and Survé. The team comprised of Andrea Chothia, Angelique Ellis, Nadine Willis, Rowan Abrahams, and Jane Folodi.
He submits the team found that there was an unprecedented attack against Independent Media, Survé and the Sekunjalo group, when compared to other media houses, their related companies and their chief executives – and that various ostensibly unrelated publications would publish articles about them in an apparently orchestrated manner.
Terblanche explains that the team based its findings on:
· all relevant articles published in other media over a three-year period;
o provided to the team by (anonymous) sources within the DA and certain of the other media houses; and
o from social media.
The relevant articles constituted 368 pieces of varying length.
He says the team inter alia concluded it appeared to them that:
· certain journalists worked in concert with each other; and
· all these journalists could be grouped together – not only by their race, but also by their journalistic background, experience and style.
The unit called these reporters “journalists of a particular generation”. Terblanche states the team “classified” Moodie as part of this group, based on the number of articles she wrote (ten in total), on the type of criticism she levied, as well as on her journalistic background.
He says in one instance Moodie was so quick to levy criticism (in this instance against the Cape Argus Newspaper) that the she was forced to publish an apology and retraction under the threat of litigation.
Terblanche submits that the piece under complaint constituted an opinion expressed by the team, based on the facts derived from their research – which was fully set out in the article. He argues that the opinions expressed constituted deductions based on the facts listed and comment expressed in respect of the deductions.
He says that I should determine whether the:
· text could be classified as comment;
· content was fair;
· allegations commented on were true (I am sure he meant “reasonably true”); and
· comments were in the public interest.
Terblanche argues, “It is submitted that, where the article expresses comment on the facts, the test is therefore not how the reasonable person would have interpreted the facts, but whether a commentator could reasonably have held the opinions expressed. When facts are listed upon which comment is based, it is not required that the views of others be sought. Getting comment or response from another party is only required in cases of factual reportage.”
Terblanche denies that the:
· article was motivated by the publisher’s commercial, personal and non-professional interests or that it allowed these interests to influence the slant of the reporting – he says the team was an independent group of persons who had been commissioned by the company to conduct research and then to express opinions regarding the research;
· team was motivated by malice; and
· text failed to distinguish between fact and opinion – the article clearly stated where it referred to data and when it expressed opinions or deductions made on the facts/data.
He asks this office to dismiss the complaint and adds that, “[should] the Ombudsman find that the article breached the Code, the offence was [committed] on the bona fide belief that the article constituted protected comment and that the seriousness of the offence accordingly does not merit a tier three sanction”.
Moodie replies to Independent’s response
Moodie rejects the “main thrust” of Independent Newspapers’ response, that the article in question was an opinion piece and, therefore, constituted protected comment. She says the article was published on the news pages of the various titles as an investigative news story, “[with] absolutely nothing to mark it out as an opinion piece or as anything other than traditional reportage”.
She calls this argument a “cynical attempt” to avoid the other apparent, blatant contraventions of the Code, particularly as it relates to the failure of the publications to obtain her comment prior to publication.
Moodie adds that the representation of the authors as “independent researchers” also appears to be a deliberate and disingenuous attempt to mislead this tribunal and process.
She concludes, “For a publisher to commission editorial work and to cause it to be published outside of the channels of ordinary editorial processes would seem to me to be an astounding practice and a clear breach of Section 2.1 [of the Code of Ethics and Conduct].”
Let me try to unravel the main issues one by one, after which I shall attempt to put them together.
‘Comments’ vs. ‘conclusions’
In adjudicating this matter, I need to make a distinction between “comments” and “conclusions” – a subtle (because those concepts are akin), but a vital one.
In normal parlance, comment is the activity of airing one’s views about a certain matter. For example, one can comment on Mr Donald Trump’s or Ms Hillary Clinton’s performance during their live TV debate. Any remark, whether positive or negative, will constitute “comment”.
The same goes for the writing of an editorial or an opinion piece, in which the author gives an opinion on, or comments upon, certain matters.
Such a comment would be purely subjective – an opinion based on one’s own beliefs, casual observations and experiences. That is why the Code of Ethics and Conduct (Section 7.2) states that comment is protected “[even] if it is extreme, unjust, unbalanced, exaggerated and prejudiced” (on certain conditions, yes).
Comments, in this sense, are subjectivity personified.
Then we have conclusions. To a certain extent one leaves the normally comfortable realm of subjectivity behind, or at least tries to do so, when one reaches conclusions – especially when one has undertaken an investigation and is analyzing the results thereof.
Granted, even conclusions have an element of subjectivity. The point is, though, that such an activity should undertake a shift away from subjectivity and at least try to move towards some kind of objectivity (granted, a goal which can never be fully reached).
In short: It is only after data have been collected and analysed that one can reach conclusions, based on (at least) an attempt to look at matters from all perspectives.
In the case at hand, Independent Newspapers has launched an investigation – it has obtained some data, which have led to certain conclusions. The glaring problem with the investigative team’s conclusions, though, is that the members clearly did not analyse the data from all perspectives.
Let me explain: The team started off by gathering statistical information (the number of articles written; how many were negative; comparing them to others; etc.). So far, so good. Once that was done, the unit set out to analyse the situation, trying to find reasons for those statistics. Great again.
But that is also where they have gone astray.
A good, solid, scientific approach would have been to search for reasons for the negative reporting both by looking “outside” (which it has done, of course), and by looking “inside” (which is sadly glaring in its total absence). Instead, the team based its conclusions on assumptions – namely, that the critics are all at fault and that there was nothing wrong on the media house’s side.
Hence, it became all too easy to find words and expressions such as “propaganda”, “white boys’ club”, the “DA in newsrooms”, “malicious”, “racist”, and whatever other adjectives and adverbs they could find. Such a way out is typical of people who base their conclusions on assumptions.
I am not suggesting that the media house was at fault – I am pointing out, though, that the unit should at least have done introspection as well. If they found nothing untoward within the media house, then so be it – but this should have been done, and it should have been described in the article.
By finding all the fault outside, without an attempt at looking to the inside, the unit has eroded its own credibility.
Because the team (note its name: “Journalism Intern Investigative Unit of Independent Media”) investigated the matter and tried to reach conclusions based on its analysis (even with the shortcoming as described above), the text cannot be classified as comment and therefore be protected by Section 7 of the Code of Ethics and Conduct. Its conclusions, based on its investigation, was indeed news.
But more needs to be said. I also note that Independent Newspapers did not provide a shred of evidence to substantiate its allegations against Moodie – except, of course, the fact that she has committed the ultimate crime by having been critical of the media house.
If the investigative team did exercise “care and consideration” as to her reputation, as required by Section 3.3 of the Code of Ethics and Conduct, they certainly did nothing to demonstrate that. Instead, they attacked her integrity, professionalism and independence – which, was extremely damaging to her professional reputation.
Allowing considerations to influence reporting
Moodie complains that Independent Newspapers has breached Section 2.1 of the Code.
It reads, “The media shall not allow commercial, political, personal or other non-professional considerations to influence or slant reporting. Conflicts of interest must be avoided, as well as arrangements or practices that could lead audiences to doubt the media’s independence and professionalism.”
While I believe that the team’s “investigation” was unscientific, I am not willing to ascribe it to “commercial, political, personal or other non-professional considerations”. I have learnt long ago that it is not appropriate to accuse journalists of such motives when one can ascribe their efforts merely to poor journalism.
I also do not think there was any conflict of interest regarding the reason for launching the investigation – the barrage of negative reporting certainly called for an investigation.
Asking for comment
The text was a news report, and therefore Section 1.8 of the Code required Independent Newspapers to ask Moodie for comment on the very serious and damaging allegations made against her. That, I submit, would only have been fair, as those allegations went to the heart of her integrity, professionalism and independence.
The provisions in that section for not obtaining comment are not applicable in this case.
The text was in breach of the following sections of the Code of Ethics and Conduct:
· 1.1: “The media shall take care to report news truthfully, accurately and fairly”;
· 1.8: “The media shall seek the views of the subject of critical reportage in advance of publication …”; and
· 3.3: “The media shall exercise care and consideration in matters involving … reputation.”
The complaints that Independent Newspapers has allowed commercial, political, personal or other non-professional considerations to influence or slant its reporting, and that a conflict of interest was evident, are both 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 are all Tier 2 offences.
Independent Newspapers is directed to apologise to Moodie, without any reservation, for:
· unfairly, and without any proper substantiation or proof, labelling her as a propaganda journalist, a member of a white boys’ club, a virtual plant of the DA in its newsrooms, a racist, and for making allegations against her of malice, aspirations to maintain white control and collusion, as well as its accusations against her regarding misinformation and sabotage against the media house, its executive chairman and associated companies and all its employees;
· for the extreme harm unnecessarily caused to her reputation by this reportage; and
· not asking her to comment on these damaging allegations.
The apology should be published in the Cape Times, The Star, Cape Argus, Pretoria News, Daily News and IOL, and in any other title in the Independent stable which might have used the text as well.
The text should:
· be published on the same page as that used for the offending article;
The headlines should contain the words “apology” or “apologises”, and “Moodie”.
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 Appeals Panel, Judge Bernard Ngoepe, fully setting out the grounds of appeal. He can be contacted at Khanyim@ombudsman.org.za.