Ruling by the Press Ombudsman
13 May 2015
This ruling is based on the written submissions of Ms Melissa Moore, Manager of Legal Services of the South African Music Rights Organisation (Samro), and those of Philani Nombembe, journalist at TimesLive.
Complaint
Samro is complaining about a report on TimesLive of 25 March 2015, headlined Samro to face music in court.
The complaint is mainly about the following sentences:
· “[Samro]…has been accused of silencing the voices of budding stars”;
· “Samro is no stranger to controversy. In 2009 it was embroiled in a court battle with the executor of singer Brenda Fassie’s estate over royalties”; and
· “Samro’s lawyer, Terina Singh, told [Martin] Myers that the R200 000 had been spent on Samro officials who attended the past two conferences”.
Samro complains that aspects of these statements were out of context, inaccurate, unfair, unverified, presented information that was not reasonably true, not prepared in accordance with acceptable principles of journalistic conduct, not in the public interest, and that they have therefore unnecessarily harmed its reputation.
The organisation adds that the:
· story omitted material information; and
· headline was, amongst other things, misleading, unfair, inaccurate and unreasonable.
The text
The story, written by Philani Nombembe, was about a pending court case between Martin Myers, the founder of Music Exchange, who had served summons on Samro in a bid to get it to pay about R200 000 it allegedly owed the company under a sponsorship deal reached three years ago.
He also reported that Samro (which funnels royalties to musicians) “has been accused of silencing the voices of budding stars”.
The reporter added that Samro was not a stranger to controversy, referring to a court battle with the executor of singer Brenda Fassie’s estate over royalties.
Samro’s lawyer, Terina Singh, reportedly told Myers that the R200 000 had been spent on Samro officials who attended two Music Exchange conferences.
Analysis
First sentence
The sentence in dispute read, “[Samro]…has been accused of silencing the voices of budding stars.”
Moore says the reporter failed to inform Samro of such allegations, let alone asking it to respond – having been fully aware of the allegations and having had the opportunity to do so. “These allegations lie at the heart of SAMRO’s business and reputation.”
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Nombembe replies that the story reported on an accusation, and did not state it as fact. He adds that by the time he sent his enquiry to Samro, it was already fully aware of the claims made against it. The reporter also cites a legal document, concluding that he was justified in reporting that Samro had been “accused of silencing the voices of budding stars”. He argues, “It is explicitly clear from…the Music Exchange NPC’s claim that the organisation had to reschedule the conference apparently because SAMRO would not pay the outstanding amount. And obviously, budding starts have missed out on an opportunity.” |
Moore replies that Samro does not take issue with the fact that these accusations were published – only with the way in which it was done as Nombembe had failed to adhere to acceptable journalistic principles.
“[N]ombembe has conveniently and intentionally omitted to state and acknowledge that SAMRO’s response clearly states…that ‘Music Exchange has received full financial benefit it was due from SAMRO’. This response clearly addresses the funding issue upon which Music Exchange’s claim is based. SAMRO fails to see how, in Mr Nombembe’s view, the funding issue upon which Music Exchange’s claim is based and reported on is irrelevant. It is central to this matter. This also despite the fact that SAMRO responded to his request in good faith, while the matter is sub judice.”
Moore states that Nombembe merely indicated in his e-mail that he intended to publish a story involving Samro; that he referred to the summons and to the allegations that Samro owed Music Exchange R200 000; and that he said Music Exchange had to reschedule the sponsored conference. “SAMRO’s response deals with every aspect of his request and provided Mr. Nombembe with the necessary context.”
She concludes that Nombembe made no attempt to report Samro’s responses – these being at the core of the allegations against it − because the story was designed to sensationalise, distort the context of the article and cause reputational damage to the organisation.
My considerations
From the information in the legal document provided to me by Nombembe, it is clear that an approximate amount of R200 000 had been in dispute, which was what the law suit was all about. Therefore, TimesLive was justified in publishing that information.
Secondly, it is true that Samro told Nombembe that Music Exchange “has received the full financial benefit it was due from SAMRO”. However, that was the view of one party, and that information was still to be presented to court. Nombembe was therefore totally correct in not prematurely publishing such a statement.
TimesLive can be expected to publish that information once it has been testified in court.
I am grateful that Moore does not take issue with the fact that this accusation was published (she only takes TimesLive to task for the way in which it was done). However, based on the fact that the dispute has now ended up in court and that Nombembe should not have asked for Samro’s response prior to the case being heard – let alone publish any response – I have no reason to conclude that the reporter has failed to adhere to acceptable journalistic principles.
Second sentence
The story reported, “Samro is no stranger to controversy. In 2009 it was embroiled in a court battle with the executor of singer Brenda Fassie’s estate over royalties.”
Samro complains that this statement was, amongst other breaches of the Press Code, unfair, inaccurate and unbalanced. Moore says Samro’s response to this matter was confirmed by a forensic unit “which [had] absolved SAMRO of any wrongdoing in this regard and held that all amounts due to her Estate had in fact been paid”. She adds that the journalist did not attempt to ascertain the facts, nor did he ask Samro for its comments although he had the opportunity to do so.
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Nombembe says the word “controversy” can be defined as a “dispute, argument, or debate, especially one concerning a matter about which there is strong disagreement and especially one in public or in the press”. He argues that the word “controversy” was not used with any malice. He adds that the Fassie court battle was a matter of public record and argues that it merely provided context to the story. He did not provide further details about that court case as it was public knowledge, which is also the reason he did not ask Samro for comment on this matter. The reporter also states: “I specifically asked if SAMRO had any additional information to share that would add context to the story but the organisation chose not to address this. [Also] nowhere in the story do we suggest or infer that SAMRO misappropriated funds or acted fraudulently.” |
Moore disagrees – she maintains the inclusion of the Fassie litigation was done for no relevant purpose other than to attempt to create the perception that Samro has a history of legal disputes and controversy; for sensationalism; and to distort the context of the story in a biased manner.
“Mr Nombembe is obliged to investigate all facts of a matter and report on them accurately. Had he done so, he would have found that the Brenda Fassie matter ought not to have been a controversy in the first place, and he can accordingly not report it as such.”
She denies that Nombembe asked Samro if it had any additional information to share that would add context to the story, and also that the organisation chose not to address this.
My considerations
The Fassie case was taken to court. This implies that there was a time when the matter was controversial (even if Samro was innocent on this issue). No outcome of any kind can change that fact, and Nombembe was therefore justified in stating that controversy was not new to Samro.
I also accept that this matter was used for the sake of context, and conclude that there is nothing wrong with doing that.
Third sentence
This sentence stated: “Samro’s lawyer, Terina Singh, told Myers that the R200 000 had been spent on Samro officials who attended the past two conferences.”
Samro complains that this statement is factually incorrect on various counts:
· At no stage did Singh communicate with Myers as all communication was addressed through his attorney, Mr Barry Varkel; and
· Singh told Varkel that an amount of R207 683 had been expended by Samro in supporting the 2013 and 2014 Music Exchange conferences which included the costs of providing guest speakers and support at the conferences.
Moore adds that Nombembe did not verify his information, nor did he quote Singh correctly.
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The argument that all communication was addressed to Varkel does not hold water, Nombembe replies – Varkel acts on behalf of Myers, and all communication between Sing and Varkel is intended for Myers. He says he knew what the exact amount in question was, but argues that he merely rounded it off for writing purposes. He also states: “Annexed to Singh’s communication is a schedule that details how the money was spent. Some of it was spent on flight tickets for SAMRO officials who attended the previous two conferences including Sipho Dlamini, Tiyani Maluleke and Kgomotso Mosenogi. Some of it was spent accommodation, meals, car hire and parking.” |
Moore replies: “This is a very different allegation to what is set out by Mr Nombembe, himself, in the facts… ‘Spending money on officials’ is very different from spending money on transport, accommodation for officials in support of and in order for the officials to support the conference.”
She adds that Nombembe’s interpretation of legal correspondence and the intended addressee is incorrect, and argues that he should have indicated in the article that Singh had communicated with Myers’s attorney.
My considerations
Whether Samro's lawyer communicated with Myers directly or via his attorney is not material to the matter at hand.
I also note that, while Moore claims the journalist’s interpretation of legal correspondence to be incorrect, she does not explain exactly what she regards as incorrect.
Omitting material information
Moore says that, in Samro’s response to Nombembe’s original query (which related only to the allegation that Samro owed Music Exchange R200 000), it was brought to the reporter’s attention that Samro had a history of supporting various developmental and educational programmes across the country – but that its funding role was managed tightly to minimize waste. “This information was intentionally omitted in order to sensationalise and distort the context of the article and cause reputational damage to SAMRO.”
In later correspondence, Moore says that TimesLive elected to distort the context by omitting to mention that − while indicating that Samro would be defending the allegations – Samro had also indicated that it was regrettable that Music Exchange had elected to place this matter before the courts, that Music Exchange had received the full financial benefit due by Samro, that the conference should be able to establish itself without expecting to receive funds from Samro, that its primary role was to maximize the payment of royalties to its members while striving to drive down the costs of running the business and that Samro had a history of supporting various developmental and educational programmes across the country of which it was proud, but that its funding role was managed very tightly to minimise waste.
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Nombembe does not respond to this part of the complaint. |
My considerations
I do not blame the journalist for leaving out the information listed by Samro, as this was not material to the story. The article was about a pending court case, and not about the ins and outs of Samro.
Headline misleading, etc.
Samro complains that the headline (Samro to face music in court) was misleading, unfair, inaccurate, unreasonable, not in the public interest, not reflective of the content of the report, and that it constituted improper reporting on matters that were before the court.
Moore says readers would have understood that Samro acted wrongfully and that it was a foregone conclusion that the court would rule against it.
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Nombembe denies all of these allegations, and adds: “The majority of our readers understand…litigation processes... After all, we stated it from the onset that we are reporting on an accusation.” |
Moore replies the words “to face the music” is an idiom commonly understood to mean that one has to accept the negative consequences of having done something wrong. “The headline, if read in isolation and if read with the article as a whole, infers and is commonly understood to mean that SAMRO has acted unlawfully/wrongfully and will
‘face the music’ for its alleged actions when it appears in court.”
She also disagrees with Nombembe’s claim that his readers are familiar with court procedures. “The media when reporting on court cases is obliged to refrain from pronouncing, speculating or inferring the guilt or innocence of any party to the litigation. Moreover they are obliged to report on such proceedings accurately, fairly and without prejudice or bias. They are also obliged to consider all facts of a matter and to report these facts accurately and fairly without excluding pertinent information in order to distort the context of the facts and follow a particular biased agenda.”
My considerations
I have done some research on the origin and the meaning of the phrase, and I have to agree with Moore’s interpretation on this issue – the words “facing the music” do mean that one has to accept the negative consequences of having done something wrong. Therefore, the headline pre-judged the court’s finding in that TimesLive had already announced Samro’s guilt.
The intended pun has not passed me by.
Finding
The complaint is dismissed in its totality, save for the headline, which is in breach of Section 10.1 of the Press Code that states: “Headlines…shall give a reasonable reflection of the contents of the report…in question.”
Seriousness of breaches
Under the headline Hierarchy of sanctions, Section 8 of our Complaints Procedures distinguishes between minor breaches (Tier 1), serious breaches (Tier 2) and serious misconduct (Tier 3).
The breach as described above is a Tier 2 offence.
Sanction
TimesLive is directed to retract the headline and to apologise to Samro for suggesting prior to a pending court case that it had to accept the negative consequences of having done something wrong.
The apology should end with the words: “Visit www.presscouncil.org.za for the full finding.”
Appeal
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.
Johan Retief
Press Ombudsman