Dr P. Spiller vs Die Son

Complaint: Dr P Spiller

Article: Gryp nou in – Sy pleit vir haweloses

Date: 22 July 2010

Respondent: Die Son

Dr Spiller complains about a story in Die Son, published on July 24, 2009 and headlined Gryp nou in – Sy pleit vir haweloses.
According to the complaint:
  • The person in the picture, Mr Daniel Blaauw, had nothing to do with the story;
  • A journalist of Die Son, Basil Davids, entered Robertson Hospital without the necessary authorization; and
  • Davids interviewed and took a picture of a patient without the patient’s written permission.
The story is about homeless people who were reportedly dying because of TB and the winter cold. Some of these people were hospitalized (where Davids interviewed some patients). According to the story a social worker asked the public to help these vulnerable people.
We shall now take a closer look at the merits of the complaint:
The person in the picture is not involved in the story
Both parties agree that this part of the complaint has become irrelevant since Blaauw has died in the meantime – it does not make sense to apologise to a dead person.
Permission to enter
Spiller says Davids entered Robertson Hospital without permission. He specifically denies that Mr S Burger, the hospital’s secretary, authorised Davids to enter.
Die Son says Burger did give Davids permission to enter the hospital.
So what does Burger say?
Burger, who is not working at the hospital anymore, says he knew of “absolutely nothing” and that he did not speak to Davids “at all” regarding this matter. Burger says he only learnt about this matter when a nurse showed him the already published story. He adds that previously he and Davids had a good working relationship – they had agreed that Davids would first discuss a matter with him before proceeding with publication, something which Burger says Davids did not do on this occasion.
If there is any doubt here, the benefit of it should go to Spiller – Burger is not working at the hospital anymore and has little or no reason to lie in this regard.
Reasons a journalist needs proper permission to interview a patient include:
  • An interview may be stressful and therefore harmful to the patient;
  • Publication of sensitive information may lead to further stress and harm; and
  • The privacy of individuals can easily be invaded.
Davids should have taken these considerations into account.
The relevant article of the Press Code is 1.9: “News obtained by dishonest means, or the publication of which would involve a breach of confidence, should not be published unless a legitimate public interest dictates otherwise.” Davids should have asked permission – based on his “good working relationship” with Burger he would probably have received authorisation anyway.
Interviewing patients and taking pictures
Spiller also complains that the patient did not give Davids written permission to interview him or to take a picture of him, as required by law.
When defending itself against this part of the complaint, Die Son did not say that it got written permission from the patient – only that Burger gave the necessary authorization to take pictures of a patient.
The relevant part of Clause 14 of the National Health Act 61 of 2003 states that all information concerning a patient, including information relating to his or her health status, treatment or stay in a health establishment, is confidential – no person may disclose any such information unless the patient consents to that disclosure in writing (or when it is required by law or the non-disclosure of such information represents a serious threat to public health – both of which instances are not relevant to this case).
Section 15 does make provision for a health worker to, in certain circumstances, disclose personal information. However, this is clearly not what happened in this case. The newspaper did not say that Burger gave it information, only that Burger authorized entry to the hospital and to take pictures.
This means that, if Davids did not get written permission from the patient (the newspaper does not allege that he did), he indeed acted illegally. It also means that Burger would also have acted illegally if he authorised Davids to interview and to take pictures of a patient without the latter’s written permission.
Although the Press Code does not mention the word “illegal”, the Code should be interpreted against the backdrop of its own spirit as well as against that of the SA Constitution (on which it is based). Surely, unless there is a pressing public interest to the contrary, illegal actions by journalists should not be condoned.
Art 1.10 of the Press Code should also be kept in mind: “In both news and comment the press shall exercise exceptional care and consideration in matters involving the private lives and concerns of individuals…”
The person in the picture
This part of the complaint is dismissed.
Permission to enter
The journalist entered the hospital without the necessary permission; it is in breach of Art. 1.9 of the Code.
Permission to interview and to take pictures
The journalist interviewed and took pictures of a patient without the latter’s written permission. This is in breach of Art. 1.10 of the Code; it is also against the spirit of SA’s Constitution and the Press Code as a whole.
Die Son is directed to publish a summary of this Finding and Sanction, together with an appropriate apology to the Hospital’s management. Our office should be furnished with a copy of this text prior to publication.
Please note that our Complaints Procedures lay down that within seven days of receipt of this decision, anyone of the parties may apply for leave to appeal to the Chairperson of the SA Press Appeals Panel, Judge Ralph Zulman, fully setting out the grounds of appeal. He can be reached at khanyim@ombudsman.org.za.
Johan Retief
Deputy Press Ombudsman