Zelma Oberholzer vs Volksblad


Mon, May 18, 2020

Finding Complaint 4446

Date of Publication:  25/6/19

Headline: Genoeg is genoeg, sê boer ná vuishou by grensdraad

Page: 1

Online: Yes

Author: Alet van der Walt

Particulars

This finding is based on a written complaint by Ms Zelma Oberholzer, a response from the editor of Volksblad, Mr Gert Coetzee, further communications with both, and references to cases involving privacy of information in a public domain.

Complaint 

Ms Zelma Oberholzer complains that an article in Volksblad, under the headline Genoeg is genoeg, sê boer ná vuishou by grensdraad transgressed the Press Code in that it was badly researched and one-sided. It also transgressed it by using a photograph of her with her husband when she had no part in the story. The photograph was her wedding picture and was apparently taken off Facebook.

She does not mention the sections of the Press Code transgressed but from her complaint they would be:

The media shall:

  1. take care to report news truthfully, accurately and fairly;

3.1 exercise care and consideration in matters involving the private lives of individuals. The right to privacy may be overridden by public interest; and

10.2 Pictures and video / audio content shall not misrepresent or mislead nor be manipulated to do so.

  1. Text

1.1 The original text is in Afrikaans. I have translated it here

1.2 The introduction says : “A farmer from Ficksburg, Frik Fouche,” says he has now had enough of the harassment (teistering) by his neighbour, a former participant in the TV series, ’n Boer soek ’n vrou.”

1.3 It explains that Mr Fouche’s neighbour, Mr Ludwig Oberholzer had “constant quarrels” (gedurige vetes) with other inhabitants of the Ficksburg area and Fouche had now ‘had enough’.”

1.4 It then quotes Mr Oberholzer, who participated in the programme “Boer soek ’n vrou” in 2009, saying that it is Mr Fouche who is the trouble-maker. “What do you want me to say? The man’s own wife shot him.”

1.5 The article explains that Fouche was “in the news” in 2014 when his wife, Karen, mistook him for a burglar late one night as he tried to take off the security door of the farmhouse with a blowtorch (‘blaasvlam’). Apparently he had lost his keys.

1.6 Mr Fouche, described as a pilot (vlieënier), explained Mr Oberholzer had asked him if he could exercise his horses on Mr Fouche’s runway. When the latter demurred, Mr Oberholzer became annoyed with him (“toe is hy suur vir my”).

Recently, as he chatted to Mr Oberholzer’s brother across the fence, Mr Oberholzer turned up and hit him in the face with his fist “out of the blue”.

Mr Fouche said he’d been in a car accident two years ago and injured his neck. Doctors had warned him that if he injured his neck again, he may not be able to walk.

And then he came and hit me in the face.”

1.7 Mr Fouche said it was the first time in his life that he had laid a charge against anyone, but this man was harassing them (“teister ons”).

He hit out wildly and had also sworn at another neighbour so that the sea could not wash him down.” (“Hy slaan wild en wakker aan mense en het selfs my buurman gevloek dat die see hom nie kan afwas nie.”)

1.8 Mr Fouche said he had farmed there since 1992 and was not someone who looked for trouble with his neighbours. But Mr Oberholzer “looked for trouble with everyone” (“hy soek met almal skoor”).

1.9 The article reports that a police spokesperson had confirmed that a charge of assault had been laid against Mr Oberholzer.

Pictures

1.10 The article carries two pictures;

The first is of Mr Fouche showing a swollen and bruised face, with a caption that reads: “Frik Fouche says his neighbour hit him in the face and is harassing him”.

1.11 The second is a wedding picture showing Mr Oberholzer and his wife, Zelma with the caption: “Ludwig and Zelma Oberholzer on their wedding day.”

  1. The arguments

Ms Zelma Oberholzer

2.1 Ms Oberholzer complains that the piece was badly researched and one-sided, “as she (the reporter) only wrote one side of the story based on very bad facts”.

2.2 However, her main complaint concerns the picture of her that was used in the article.

It was of her wedding day. It was on the front page but she had “nothing to do with the story or situation.”

2.3 She says: “I think it’s a very basic human right to have respect for other people’s privacy, and the fact that I had nothing to do with the incident makes it ridiculous for them to use a photo of me.”

2.4 She says she in the sales business and “puts me as a professional in a very bad light with my clients.”

Mr Gert Coetzee for Volksblad

2.5 On the complaint that the article was “one-sided”, Mr Coetzee said both parties were “given the opportunity to respond and both were quoted (inasmuch as they used the opportunity to respond) in a balanced manner.”

2.6 The complainant does not stipulate what the “bad facts” are but he says the newspaper will gladly print another side “but only clearly attributed to a named source and balanced with response from the other side”.

2.7 On the use of Ms Oberholzer’s wedding picture: Mr Coetzee acknowledges that Ms Oberholzer is not at all involved in the story (nor even with the ‘Boer soek ’n vrou’ competition “which the uninformed reader can also deduce.”)

2.8 The picture is “factually correct” in that it is the correct wedding picture and was already published in the “public domain”, being Facebook. However, he admits that the use of material from Facebook is sometimes “problematic” and that the “legal grounds remain unclear lacking a set precedent.”

2.9 He has offered to publish an apology and has sent the Ombudsman a draft for approval. This reads (translated from Afrikaans):

CORRECTION: Regarding “The story “Genoeg is genoeg, sê boer ná vuishou by grensdraad” (25 June). Volksblad points out that Mrs Zelma Oberholzer who appears in a wedding picture with her husband Ludwig next to the story, is in no way involved. She was also not involved in Boer soek ’n Vrou. If this impression has been created, that was in no way the intention. For this reason, Volksblad offers this correction and apologises to Mrs Oberholzer for any possible embarrassment.”

Further arguments

2.10 In response, Ms Oberholzer says there were “more than enough” photos of her husband in the public domain as he was on “Boer soek ’n vrou”. There was no need to use her wedding photo. “That specific photo is enlarged and in my room and now I cannot look at it.”

2.11 She suggests this has affected her job and income prospects: “My job and my income is based on my relationship and the respect my clients have for me. …Would you appoint someone to work for your company that was on the front page of a paper next to that ridiculous article?”

2.12 She also says the article lacks integrity: “If someone calls the paper today and say they have  a story, “Alet” has been stealing money from her job. The paper calls Alet and says ‘no comment’ , the paper places the article anyway with one side of the story, and a picture of Alet and her kids. Is that right? What if there is a case and Alet is proven innocent, how does the paper correct its lack of investigation..”

2.13 She says she wants the newspaper to “acknowledge the fact they are not correct and I want consequences.”

  1. Analysis

3.1 It is clear from her submissions that Ms Oberholzer was deeply upset, particularly at the use of her wedding picture in the newspaper.

3.2 She feels its use was gratuitous and had compromised her personal and professional standing.

3.3 The hurt she clearly felt epitomises the warning in the preamble to the Press Code that the media should avoid causing “unnecessary harm.”

3.4 There are two parts to Ms Oberholzer’s complaint: the first is about truth and accuracy, and whether the report was fair. The second is about the use of her wedding photograph taken from Facebook.

3.5 On whether the report was fair and accurate: the article was about a conflict between two farmers that resulted in one of them being hit by the other and a charge of assault laid.

3.6 The newspaper approached both parties. In response, Mr Oberholzer recounted an incident where Mr Fouche’s wife had shot at him  mistaking him for a burglar as he apparently tried to dismantle a security gate with a blowtorch as he had lost his keys.

It is unclear why he did not simply phone his wife or knock at the door – but that is admittedly not the focus of the story.

3.7 The newspaper also had some visual evidence of the alleged assault which they published – the picture of Mr Fouche’s bruised and cut face. His one eye is also swollen shut.

3.8 Thirdly, it obtained confirmation from a senior police office, named in the story as Captain Phumelelo Dhlamini, that a charge of assault against Mr Oberholzer has been laid.

3.9 It did what could be reasonably expected of a newspaper to confirm that a physical dispute between the two men had taken place.

3.10 However, the use of the picture is another matter.

3.11 Mr Oberholzer, unlike his wife, is a public figure of some sort. He took part in the “Boer soek ’n vrou” competition in 2009; also he was the person allegedly involved in the fight.

3.12 A brief search on the programme’s website yielded some pictures of Mr Oberholzer (although not quite “more than enough” as Ms Oberholzer says).

3.13 However, the point is not so much the availability of pictures but whether it was fair to use the picture of their wedding which included her.

3.14 As she had nothing to do with the story, and as the story was largely negative, the use of Ms Oberholzer’s picture could have indeed misled readers.  A brief glance at the page with the headline about the fistfight, and her wedding picture next to the one of Mr Fouche, with his battered face, could have led readers to believe she was somehow involved in the fight.

3.15 Moreover, she was not even a participant in “Boer soek ’n vrou”, which may have given her less claim to privacy, The couple were married after the competition and Mr Oberholzer did not “find” her through it.

3.16 Then there is the matter of taking the picture off of her Facebook page.

Although Facebook has privacy settings it is still largely a publicly accessible network.

That said, though, Facebook users tend to choose their own “public” by “friending” certain people.

3.17 There have been other cases involving stories that emanate from Facebook posts that have been controversial.

3.18 One that came before the Ombudsman is of Zizi Kodwa vs News24. [1]

In that case, News24 ran a story about items posted on Facebook by Mr Papa Leshabane, a spokesperson for African Global Operations, formerly Bosasa, of him and Mr Kodwa together at various events, including the Soccer World Cup Final in Moscow in July 2018.

At the time, Mr Kodwa was the national spokesperson for the Office of the Presidency of the ANC, and Mr Leshabane had been prominent in the news as it was shortly after Mr Angelo Agrizzi had testified about alleged bribery and corruption between Bosasa and various politicians and government entities. [2]

Both were undoubtedly public figures.

3.19 It was also a matter of public interest: as Judge Bernard Ngoepe wrote in a ruling that upheld the Ombudsman’s finding: “The issue is not whether their relationship was corrupt; that was not the basis for the publication, nor what it says.  Nor did the article cast the applicant as being corrupt or as having consulted a crime, as he contents in his application for leave to appeal. The basis was that the applicant, being a public figure (as the respondent saw him), was openly associating with yet another public figure who was a very active director and an integral part of a company immersed in serious and publicly made allegations of corruption involving public funds….That being the case, the applicant’s right to privacy had to yield to a publication that was in the public interest.”[3]

3.20 However, the case of Ms Oberholzer is very different. She is not a public figure, and she was not even mentioned in the story.

3.21 The Press Code states the “right to privacy may be overridden by the public interest”. In this case, as she was not involved in the alleged assault – and indeed there is not even a mention of her name in the piece – her right to privacy must take precedence, particularly when the picture published was as intimate and personal as a wedding photograph.

3.22 There is also the question for journalists about how, in the words of Columbia Journalism Review writer Jonathan Peters, to “strike a balance between public records and personal privacy.” [4]

3.23 He recounts the rather strange tale of a law suit brought by strip-club dancers in Washington state to stop a civil engineer from obtaining their licenses (and thus real names), required in terms of state law.

The dancers performed under stage names, but the engineer had told the judge he wanted their personal details so he could “pray for them by name”.

3.24 But the judge denied him access to what were in effect public records on the grounds that it would deprive the dancers of their “right of privacy” and threaten their “physical safety if their private information is disclosed.”[5]

3.25 This is a good example of how, even if records are sometimes in the public – or semi-public – domain, the holders of those records are still entitled to a right to privacy unless other circumstances, such as public interest, obtain.

In the case of Ms Oberholzer, this is even more pertinent as she is neither a public figure nor even mentioned in the article.

3.26 The apology tendered by Volksblad acknowledges this and the newspaper should be commended for offering this.

Finding

Volksblad has transgressed sections 3.1 and 10.2 of the Press Code. These are Tier 2 offences

For this it should apologise.

The apology it tendered is adequate but it must contain the word “apology” in the headline and be used on the same page as the original story.  The final version should be approved by the Ombudsman. It should carry the logo of the Press Council with a link to this finding.

The picture should also be removed from the online edition of the article.

The rest of the complaint is dismissed.

Appeal

The Complaints Procedures lay down that within seven (7) 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.

Pippa Green

Press Ombudsman

May 15, 2020


[1] http://www.presscouncil.org.za/Ruling/View/zizi-kodwa-vs-news24-4443

[2] Commission of Inquiry into State Capture, evidence of Angelo Agrizzi, Day 40, 24 January 2019.

[3] http://www.presscouncil.org.za/Ruling/View/appeal-decision-zizi-kodwa-vs-news24-4442

[4] https://archives.cjr.org/united_states_project/exotic_dancer_names_and_public_records_requests.php

[5] Ibid