Ruling by the Press Ombudsman and a Panel of Adjudicators
26 May 2015
This ruling is based on the written submissions of Mr Ronnie Kasrils and those of Phylicia Oppelt, editor of the Sunday Times, and Susan Smuts, legal editor of the newspaper.
In addition, a hearing was held on 14 May 2015 in Johannesburg. Kasrils represented himself and was assisted by the Public Advocate, Latiefa Mobara; Mr Dario Milo, Ms Okyerebea Ampofo-Anti and Smuts (amongst others) appeared for the newspaper.
The members of the Panel of Adjudicators who assisted the ombudsman were Fanie Groenewald (press representative) and Brian Gibson (public representative).
Complaint
Kasrils complained about the compliance of The Times with a sanction imposed by the Ombudsman, and about the compliance in respect of the Sunday Times with a sanction imposed by the Press Appeals Panel regarding an apology on posters.
In more detail, Kasrils asked the panel to rule whether the:
· apology printed in The Times on Monday, 30 March 2015, had been in a position proportionate to the offensive story;
· Sunday Times had failed to publish a report on the Appeals Panel ruling concerning the poster issue;
· Sunday Times had failed to display the apology posters in the Eastern Cape (taking into account its offer to issue adverts instead);
· posters were unequally displayed in Johannesburg as perceived by Kasrils and a number of associates who had submitted statements to this effect;
· Sunday Times had in fact stopped publishing posters in Cape Town before the original story was published on 7 September, 2014 (as an associate had claimed to have seen the offending poster in Cape Town on 7 September, 2014); and
· Sunday Times, contrary to its claim that posters were no longer published in Durban, had in fact published an apology poster in Durban on Sunday, 29 March 2015, as evidenced by a friend of Kasrils, but denied by the Sunday Times.
Background
The origin of this matter was a ruling by the Ombudsman in favour of Kasrils following a complaint that the Sunday Times had breached the Press Code in respect of the:
· headline on an article published on 7 September 2104 (Spy tapes ‘illegal’ and expose Kasrils), which was ruled to be in breach of Section 10.1. of the Press Code; and
· article on page 4 in The Times the next day (I discussed NPA investigations – Kasrils), which was ruled to be in breach of Sections 2.1 and 2.3 of the Press Code.
The Ombudsman ordered that:
· Sunday Times should:
o apologise to Kasrils for stating as fact in the headlines that the “spy tapes” have “exposed” him (as the mastermind behind the manipulation of the NPA), thereby inaccurately, unfairly and unnecessarily harming his reputation;
o retract the mastermind-statement;
o publish this apology and retraction on its front page, above the fold;
o provide him with this text prior to publication;
o end the text with the words: “Visit www.presscouncil.org.za for the full finding”; and
o publish the apology on the newspaper’s website, if the original article appeared there as well.
· The Times should:
o apologise to Kasrils for stating, as fact, the allegations that the “spy tapes” have identified him as the mastermind behind the manipulation of the NPA, thereby inaccurately, unfairly and unnecessarily harming his reputation;
o retract the mastermind-statement;
o publish this apology and retraction on page 4, above the fold;
o provide him with this text prior to publication;
o end the text with the words: “Visit www.presscouncil.org.za for the full finding”; and
o Publish the apology on the newspaper’s website, if the original article appeared there.
On 15 December 2015, an application by the Sunday Times and The Times for leave to appeal against the severity of the sanction was dismissed by the Chair of the Press Council Appeals Panel. He granted Kasrils the right to cross-appeal before an Appeals Panel the decision of the Ombudsman not to order that the Sunday Times should also carry the apology on street posters in a similar fashion to the street poster (Spy Tapes expose Kasrils), which had appeared at the time of the original article.
On 24 March 2015 the Appeals Panel set aside the Ombudsman’s decision not to order the publication of the apology in the posters. In addition to the original sanction imposed by the Ombudsman, it ordered the Sunday Times to publish posters apologising to Kasrils with its next available edition. The posters should include the words “spy Tapes” and “apology” or “apologise”, as well as the words “to Kasrils”.
The same number of posters as those of the offending posters had to be printed in the normal Sunday Times poster format – carrying the masthead of the newspaper, distributed on the same basis as the original posters, and displayed with equal prominence.
The Sunday Times duly published an apology on the front page of the 29 March 2015 edition under the headline: Spy tapes: apology to Ronnie Kasrils (along with street posters, Spy tapes: We apologise to Kasrils) and The Times published its apology on page three on 30 March 2015 under the headline: Matter of fact.
On 29 March 2015, Kasrils lodged a complaint with the Public Advocate of the Press Council that the Sunday Times had not complied fully with the order relating to the publishing of posters. These concerns were conveyed to the Sunday Times, which according to its later evidence, discovered that the apology posters had not in fact been published in the Eastern Cape.
The Sunday Times then approached the Chairman of the Appeals Panel for guidance on how to deal with this “error”. The Chairman declared himself to be functus officio and referred the matter to the Director of the Press Council, who in turn referred it back to the Ombudsman as a formal complaint regarding compliance with the rulings of the Ombudsman and the Appeals Panel.
Following an exchange of emails and a decision by the Ombudsman to convene a formal hearing, Oppelt wrote to the Ombudsman on 17 April 2015. In summary she:
· challenged the jurisdiction of the Ombudsman, arguing that he had no authority to hear a complaint on compliance with a sanction;
· argued that the Sunday Times had acted in good faith and “substantively complied” with the Appeals Panel’s ruling regarding the apology posters. She said that the:
o newspaper had not published street posters in Durban and Cape Town at the time of the offending article and therefore did not have to publish apology posters in these cities;
o failure to publish apology posters in the Eastern Cape was an error because, although the newspaper had published street posters in the Eastern Cape at the time of the offending article, the publisher had since stopped doing so. The editorial team was not aware of this decision and therefore not aware that the apology poster had not been published as directed. She offered to publish “apology advertisements” in two local newspapers to correct this error.
o newspaper had complied with the ruling of the Ombudsman (and the Appeals Panel), including clearance of the text with the Ombudsman.
· rejected Kasrils’ assertion that the Ombudsman has ruled that the outcome of the Appeals Panel hearing should be published in the Sunday Times; and
· asked the Ombudsman to withdraw his decision to convene a hearing and to allow the parties to negotiate the rectification of the error in the Eastern Cape.
The hearing
The hearing started with a formal challenge by the Sunday Times to the panel’s authority to hear the matter.
Having adjourned to consider the lengthy and legally complex submission by Milo, the panel advised the parties that it reserved its ruling on this matter. It ruled that the hearing would in the meantime continue to consider the merits of the complaint, without prejudice against the position the Sunday Times held about the panel’s jurisdiction. The Sunday Times agreed to this.
Jurisdiction
In his submission Milo stated that the Ombudsman had sought to rely on Clause 8.2 of the Complaints Procedures as a basis for exercising jurisdiction over this matter and argued that 8.2 did not give the Ombudsman this power.
The panel pointed out that the Ombudsman’s reference to Section 8.2 was in fact in correspondence with the Sunday Times when the newspaper had threatened not to appear before the panel (thus about “failure to appear for adjudication hearings” and not about compliance with a sanction).
In the panel’s view, Section 7 of the Complaints Procedure gives the Ombudsman the necessary authority to adjudicate the matter, namely:
· 7.2: If a finding is made against a member of PMSA or a publication that has voluntarily become subject to the jurisdiction of the Ombudsman, the Ombudsman, the Adjudication Panel, or the Appeals Panel, as the case may be, may …
· 7.2.4: Make any supplementary or ancillary orders or issue directives that are considered necessary for carrying into effect the orders or directives made in terms of this clause and, more particularly, issue directives as to the publication of the findings of the Ombudsman, the Adjudication Panel, or the Appeals Panel.
The panel was also not convinced by Milo’s further submission that Section 1.6.2 of the Complaints Procedures limits the Public Advocate’s authority to accept a complaint about breaches of the Press Code; and not about compliance of a sanction made by the Ombudsman or an Appeals Panel.
Accordingly, the panel finds that is has the necessary jurisdiction to conduct a hearing and issue a ruling on Kasrils’ complaint.
Finding
Following lengthy submissions, counter-submissions and admissions by both parties, the panel dismissed the complaints that the:
· apology printed in The Times on Monday, 30 March 2015, was not in a position proportionate to the offensive story. The panel accepted that the newspaper had complied with the ruling of the Ombudsman. However, it noted that although the Ombudsman had given no directions about the headline of the apology, the Sunday Times published it under Spy tapes: apology to Ronnie Kasrils, while The Times preferred to use the headline Matter of fact;
· Sunday Times failed to publish a report on the Appeals Panel ruling concerning the poster issue because this had been a non-binding suggestion by the Ombudsman in subsequent correspondence;
· posters were unequally displayed in the Johannesburg. Both the panel and Kasrils accepted that the random placement by third party distributors of relatively few posters (less than 2 000) across Gauteng could account for Kasrils and his associates seeing so few “apology posters” during their travels on Sunday 29 March 2015; and
· Sunday Times had not published apology posters in Cape Town and Durban because, based on documented evidence, no offending posters had been published in these cities. While written statements to the contrary had been submitted by Mr Kasrils’ associates, the panel was persuaded by the sworn affidavit submitted by the production manager of Times Media (Pty) Limited. However, the panel points out that it was regrettable that the Sunday Times had not sought clarity from the Appeals Panel after its ruling that the apology posters were to be “distributed on the same basis as the original posters”. Kasrils would probably not have objected had they pointed out at that stage that they had not published the original posters in Cape Town and Durban they were therefore not publishing the apology posters there; and furthermore, that they had no record of exactly where the original posters had been distributed in Gauteng, and would therefore be distributing it randomly as per usual practice.
The panel upheld the complaint regarding the Sunday Times's acknowledged failure to display the apology posters in the Eastern Cape but accepted that this was a legitimate error and that the newspaper had made a good faith offer to correct the error by publishing an advertisement in two local newspapers.
Sanction
Sunday Times is directed, as offered, to publish the apology (headline and content) that was published in the Sunday Times on 29 March 2015 as a quarter page advertisement in both the Daily Dispatch and the Eastern Province Herald at the earliest possible date.
The final layout of the advertisement must be signed off by the Ombudsman in consultation with Mr Kasrils.
Panel of Adjudicators
Brian Gibson (public representative and chairman)
Fanie Groenewald (press representative)
Johan Retief (ombudsman)