Ruling by the Press Ombud
14 June 2017
This ruling is based on the written submissions of the Nelson Mandela Bay Municipality’s chief of staff, Mr Kristoff Adelbert, and those of Nwabisa Makunga, deputy editor of The Herald newspaper.
Adelbert is complaining about a story in the Herald of 9 May 2017, headlined MEC gets legal advice on Mettler appointment.
Complaint
Adelbert complains that an off-the-record telephone conversation between him and the journalist was recorded without his knowledge or permission, and that the article was published using quotes from this conversation.
The text
The story, written by politics reporter Johnnie Isaac, was about an allegation that the State Attorney had been asked by MEC Fikile Xasa to look into the legality of the appointment of Mr Johann Mettler as city manager in Nelson Mandela Bay.
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Adelbert says on May 4 journalist Johnnie Isaacs sent a query to Mr Sibongile Dimbaza, spokesperson of the mayor of Nelson Mandela Bay, in respect of the appointment of the new Municipal Manager. Dimbaza forwarded the query to him, upon which he phoned Isaacs to have an informal discussion about “our feelings on the matter” and to understand the context of his query. Regarding this conversation, he says: · Isaacs indicated that, given their discussion, he would speak to Rochelle de Kock, politics editor, probably to assess whether it was still necessary for official comment to be provided or whether the story was still relevant; and · he explained that he would provide Isaacs with official comment in writing – indicating that the telephone conversation was not on the record. Then, on May 8, Isaacs sent him the following Whatsapp message: “We decided to go ahead with publishing that story, I was recording you as we were chatting, I'm using your soundbites as quotes.” He says he objected to this, and sent him his “actual” comment via Whatsapp; he also phoned Isaacs to confirm that he would amend accordingly, “in full understanding that it was not at all fair to use quotes from a recording, which I did not give permission for, of a conversation that was not on the record.” He says Isaacs then replied saying, “Rochelle refused to change those quotes, despite me trying to explain to her. She said, if you have problems you’ll deal with her.” Later that evening he sent a Whatsapp message to De Kock, forwarded to Isaacs, Nwabisa Makunga, deputy editor, and Brett Horner, editor, saying: “Hi Rochelle, Your decision to include quotes from an informal conversation I had with Johnnie Isaacs, that was recorded without my knowledge and permission, is unacceptable and unprofessional.” Adelbert argues that, when asked to provide official comment, the delivery, tone and quantity of information is almost always different from that of a flowing, informal conversation; he adds the very fact that he had offered official, written comment suggested that the telephone call was off the record. |
The complaint in more detail
The Herald responds
Makunga says Isaac spoke to the spokesman for MEC Xasa, who confirmed that they had indeed referred the matter to the state attorney for legal advice. The journalist then e-mailed questions to the spokesman of the mayor of the Nelson Mandela Bay Municipality, Sibongile Dimbaza, for comment and to ascertain whether they were aware of the new developments.
Adelbert then phoned Isaac, saying that he was handling the enquiry. (He adds that Adelbert often answered media queries on behalf of the mayor – so, as far as Isaac was concerned, this was normal.)
The deputy editor says that Isaac did not have his notebook with him at the time and opted to voice record the conversation for the purposes of accuracy when reporting. “This is standard journalism practice and thus, Mr Isaac was not obliged to inform Mr Adelbert that he was being recorded,” he argues.
Makunga denies that Adelbert requested or indicated that he was speaking off the record, and argues that, given his position in the municipality and his experience in dealing with the media, he should have known that a discussion he initiated with a reporter in response to a media query was on the record, unless explicitly stated otherwise.
In this regard he refers to Adelbert’s words towards the end of the conversation: “Do you want all of that in writing?” – to which Isaac responded, “I think I can hear you, I think I'm fine…” Isaac added that he would speak to De Kock, who would decide whether or not to go ahead with the story.
He argues that Adelbert’s question was merely means to ensure that the reporter fully understood what he had just been told – had Adelbert believed the conversation was off the record, he argues, he would not have offered to put the comments he had just made in writing.
The deputy editor concludes that Isaac clearly believed the recoded conversation was on the record, and adds that the journalist acted with transparency and with no malicious intent.
He also rejects the argument that, because Adelbert did not know he was being recorded, it stood to reason that the conversation was off the record.
Makunga says Adelbert’s request to change the quotes was not because they were inaccurate, but because he preferred to come across in a different way, adding that the newspaper is under no obligation to accommodate subsequent requests to change quotes from interviewees, in particular when the interview was conducted on the record, as this was.
Analysis
Off the record
I have listened to the recording, and I have no evidence that Adelbert had at any time requested the telephone interview to be off the record. On the contrary, he asked Isaac whether he wanted “all of that in writing” – suggesting that he merely wanted to be sure that the reporter quoted him correctly.
The logical conclusion is that Adelbert’s offer to provide his comments in writing did not per implication suggest that his verbal comments were not for the record.
Therefore, I do not blame De Kock for insisting to use the comments; instead, I commend her for her decision.
I have witnessed on occasion a prominent public official asking journalists to keep his comments off the record – but he did so at the end of his speech while, in the meantime, his comments had already gone viral. An interviewee only has legs to stand on if he or she asks a reporter to speak off the record at the beginning of a conversation, and the journalist agrees to it – it would put newspapers in an impossible position if subjects insist on chopping and changing comments for which they should take responsibility.
I have no evidence to this effect in Adelbert’s case.
Recording
There is no problem whatsoever if a journalist records a conversation which is on the record (as I take this one to be), even if the interviewee does not know about it. Recording a conversation is just another way of documenting information – and the best way at that. At most it would be good manners to indicate that one is recording a conversation, but there is no obligation on a journalist to do so. In principle, there is no difference between recording a conversation and taking notes of it.
In fact, the interviewee should be grateful for such a recording, as it would ensure that he or she is correctly quoted.
Finding
The complaint is 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