Ruling by the Press Ombud
15 May 2017
This ruling is based on the written submissions of Mr Tony Mostert of Mostert Attorneys, on behalf of Mr Jason Rohde, and those of Nadia Honiball, deputy editor of You magazine.
Rohde is complaining about reportage in You magazine of 29 December 2016, headlined Captivating cases, as well as an online story of 27 January 2017, headlined Another Sotheby’s boss falls foul of the law.
Complaint
Rohde complains that You’s reportage was vexatious and offensive in that they stated as fact that his wife had been murdered, insinuated that he was the guilty party, and that his minor children were identified. Details are below.
The texts
Rohde has been in the news since his arrest after the death of his wife on the well-known Spier wine estate outside Stellenbosch.
In its edition of December 29, You published a picture of the Rohde family, including his three daughters – two of whom were minors. The article with the picture said Mrs Rohde’s death “was initially regarded as a tragic suicide – until a medical report stated she’d been strangled”.
In the same edition a quiz was published, with a photograph of Rohde and a caption which read, “On which wine estate was real estate boss Jason Rohde’s wife Susan murdered – Boschendal, Spier, De Salze, Nooitgedacht”.
The article published on 27 January 2017 on You Online contained the statement that Rohde’s wife “was murdered on the Spier wine estate in July last year”.
The complaint in more detail
Mostert says that the Rohde twins were 16 at the time of publication, and therefore minors.
He says the statement that Mrs Rohde’s death was “initially regarded as a tragic suicide until the medical report suggested she was strangled” left the reader with the (false) conclusion that the report conclusively found that she had been murdered – and that Rohde was the guilty one.
He adds, “The only medical report that is in the public domain is an independent report, which does not support the conclusion that Mrs. Rohde was murdered.”
The attorney also says that the quiz, as well as the online article, stated as fact that Mrs Rohde had been murdered.
You responds
The photograph
Honiball says You obtained the picture from Mrs Rohde’s Facebook page, which was accessible to the public. A similar picture also appeared on her husband’s Facebook page.
She argues, “In the circumstances we submit that the publication of the photograph could therefore not infringe [on] the privacy of the minors … as the mother of the minors waived their right to privacy in respect of the photograph.”
The deputy editor adds that a number of publications published the pictures in question before You did so. “The two minors were therefore identified before we identified them by publication of the photograph.”
Honiball also notes that the two minors turned 17 two days after the publication of the picture.
“If the fact that they were identified cause harm of any kind as contemplated in section 8 of the Press Code of Conduct, such harm was caused when they were identified earlier by a number of other publications. Our contribution, if any, to the harm suffered by the minors are therefore negligible.”
Murdered, by Rohde
Honiball replies as follows:
· Rohde had already been charged with the murder of his wife; and
· During his bail application, an affidavit by Detective-Sergeant Marlon Appollis was presented by the prosecution, stating that Appollis had attended the post-mortem by a Dr Kahn and a Dr Abrahams at the Paarl mortuary, who were both of the opinion that the deceased had been strangled to death, and that he (Appollis) was satisfied that there was a reasonable suspicion that Rohde had killed his wife.
She adds that the media have reported at length that the defence had presented a second post-mortem report which suggested that Mrs Rohde had taken her own life.
Honiball concludes, “In the context of the abovementioned facts the reasonable reader of the article would have been mindful of the principle that a person charged with a crime is presumed innocent until proven guilty. The reasonable reader would also have been aware of the fact that an opinion expressed by an expert that a person was murdered, does not constitute conclusive proof until it has been accepted as such by the court.”
The deputy editor concedes it would have been better to say “allegedly murdered” in the quiz. However, she argues that the quiz was in the same edition as the relevant article – she says the reasonable reader would therefore have been aware that the statement that Mrs Rohde had been murdered was an allegation (based on the opinion of an expert, which still needed to be proven at the forthcoming trial).
She submits that the omission of the word “allegedly” therefore did not constitute a breach of the SA Code of Ethics and Conduct.
The same goes for the statement in You Online cited in the complaint.
Rohde replies
Mostert replies on behalf of Rohde:
· Where the magazine sourced the photograph, is immaterial. He says that if You’s argument is to be followed, then nobody would be able to keep a family photograph album or show it to anybody, and argues that Honiball’s argument about privacy is devoid of any logic.
· It is also immaterial whether similar pictures were published elsewhere – if one motorist exceeds the speed limit, it does not entitle other motorists to do the same.
· The arguments about the twins having turned 17 two days after publication, and about other publications – and not You – having caused the children harm (if any), also defy any logic.
· The assumption that the reasonable reader would have understood it was not fact that Rohde was guilty of murdering his wife cannot be defended.
· The quiz grouped Mrs Rohde with murder victims, which makes a mockery of You’s argument about the omission of the word “allegedly”.
Analysis
29 December 2016
The photograph
The only way in which the sourcing of the picture would matter, would be if the family itself gave it to the magazine. Even in that case, You would also have had to obtain permission from the minors to publish it.
Section 8.1.1 of the Code says, “The Bill of Rights (Section 28.2) in the South African Constitution states: ‘A child’s best interests are of paramount importance in every matter concerning the child.’ The media, applying the spirit of this section, shall therefore exercise exceptional care and consideration when reporting about children. If there is any chance that coverage might cause harm of any kind to a child, he or she shall not be interviewed, photographed or identified without the consent of a legal guardian or of a similarly responsible adult and the child (taking into consideration the evolving capacity of the child), and a public interest is evident.”
This language is strong – consider, for example, the words “paramount importance”, “in every matter concerning the child”, “exceptional care and consideration”, “any chance”, “harm of any kind”.
The Code uses the phrase “exercise care and consideration” a few times; it is only when referring to children, though, that the word “exceptional” is added.
I also take into account the context in which You published the picture of the children – not only had their father been arrested on suspicion of killing their mother, but the magazine also did not do anything to stress that no murder had been established, let alone that their father did it.
If the publication of this picture did not add to the children’s trauma, I would be most surprised.
You’s argument that the picture was on Mrs Rohde’s Facebook page and therefore accessible to the public, and that Mrs Rohde had waived the children’s right to privacy is poor – the fact that a picture is accessible does not by default mean that it may be published. If it does, then Section 8.1.1 is not worth the paper it is written on.
The argument that a number of other publications published the pictures in question before You did so, is irrelevant (as correctly argued by Mostert).
Then there is the argument that the two minors turned 17 two days after the publication of the picture. The fact of the matter is that they were minors (under 18 years of age) – whether they were 17, 16 or whatever. If they turned 18 (and not 17) two days after publication I could have considered leniency – but that was not the case.
With regard to Section 8.1.1 stating that consent should also be obtained from the child (taking into consideration the evolving capacity of the child), I submit that the children were old enough to make a responsible decision in this regard.
In conclusion, I cannot agree with You’s assertion that its “contribution, if any, to the harm suffered by the minors are … negligible”. On the contrary. And if there was any public interest in the publication of a picture of the minors I am yet to be enlightened about it.
Murdered, by Rohde
Two texts are in the spotlight here – one in the article, the other in the quiz.
The article stated that Mrs Rohde’s death “was initially regarded as a tragic suicide – until a medical report stated she’d been strangled”.
Rohde complains this left the reader with the (false) conclusion that the report conclusively found that his wife had been murdered and that he was the guilty one – while the only medical report in the public domain is an independent report, which does not support this conclusion.
I cannot agree with Rohde on this issue – it is true that his wife was initially thought to have taken her own life, and that the doctors who performed the first autopsy were regarded as having been of the opinion that she had been strangled (whether or not that report is in the public domain is of no consequence).
I also take into account that the magazines did publish the results of a second post-mortem as well.
The sentence under consideration does not mention Rohde. As it stands, it is factual – and the context is that he had indeed been arrested on a charge of murdering his wife.
The second text, in the quiz, asked, “On which wine estate was real estate boss Jason Rohde’s wife Susan murdered – Boschendal, Spier, De Salze, Nooitgedacht”.
This time the shoe is on the other foot.
In this instance it does not matter whether Rohde had already been charged with the murder of his wife, or what Appollis’s impression was with regards to the reason for Mrs Rohde’s death – the fact remains that no court of law had found that she had been murdered.
The magazines had no right, therefore, to state as fact that Mrs Rohde’s death was murder. It is futile to rely on the assumption that reasonable readers would have understood that it was not yet certain that she had been murdered. Is You arguing that they could second-guess the court and hope for the best?
27 January 2017
This article stated, as fact, that Mrs Rohde “was murdered on the Spier wine estate in July last year”.
The same argument regarding the quiz applies in this instance – the magazines erroneously stated as fact that she had been murdered.
Finding
29 December 2016
The photograph
Neither Mr Rohde nor his minor children gave You permission to publish a picture of the twins. Also, there is no evidence that the magazine exercised “exceptional care and consideration” regarding any chance that the publication of the picture might have caused the minors some harm.
The publication of the picture was in breach of Section 8.1.1 of the Code which says, “The Bill of Rights (Section 28.2) in the South African Constitution states: ‘A child’s best interests are of paramount importance in every matter concerning the child.’ The media, applying the spirit of this section, shall therefore exercise exceptional care and consideration when reporting about children. If there is any chance that coverage might cause harm of any kind to a child, he or she shall not be interviewed, photographed or identified without the consent of a legal guardian or of a similarly responsible adult and the child (taking into consideration the evolving capacity of the child), and a public interest is evident.”
Murdered, by Rohde
The article: This part of the complaint is dismissed.
The quiz: The statement of fact that Mrs Rohde had been murdered was in breach of Section 1.1 of the Code which says, “The media shall take care to report news truthfully, accurately and fairly.”
27 January 2017
The statement of fact that Ms Rohde had been murdered, was in breach of Section 1.1 of the Code.
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 regarding the publication of the picture is a Tier 3 offence; the statement of the allegation as fact that Mrs Rohde was murdered is a Tier 2 offence.
Sanction
You is directed to apologise:
· without reservation, to Rohde and his twins for publishing the picture without their permission, and for not exercising “exceptional care and consideration” regarding any chance that the publication of the picture might have caused the minors some harm; and
· to Rohde for stating as fact, twice, that his wife had been murdered before a court of law has made a decision in this regard.
The text should:
· be published:
o on the same page as that used for the offending picture and / or article;
o online as well;
The headlines should contain the words “apology” or “apologises”, and “Rohde”.
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