Appeal Hearing Decision: News24 vs Conrad Gallagher

Tue, Jun 7, 2022

BEFORE THE APPEALS PANEL OF THE PRESS COUNCIL OF SOUTH AFRICA

In the matter between:

NEWS24                                                                                                                APPLICANT

AND

1. This is an appeal by News24 (applicant) against the  Ruling of the Deputy Press Ombud dated 21 March 2022. The Ruling was on a complaint lodged by Mr Conrad Gallagher (respondent) in respect of an article published on 20 November 2021 by the appellant with the headline: “Cook or crook? The celebrity chef from Gqeberha, the Saudi crown prince and R500,000.00 wagyu steaks”. The Chefs Playground is cited in the papers as a co-complainant with the respondent; but it is in fact respondent’s company or entity which, in this case, has no independent interest; the papers and arguments centre around the respondent. There will therefore be no further reference to the entity.
2. The article portrayed the respondent as someone who had established top-end restaurants in various countries, including South Africa but which collapsed, leaving in his wake debts owing to his suppliers, landlords and former employees – the latter even being owed not only unpaid salaries but also tips. The names of the restaurant were mentioned. Among the respondent’s alleged creditors was a Mr Fourie, owner of the Dry Ager Deli Supplies (Pty) Limited. It stated that Mr Fourie had, at respondent’s instance, supplied some wagyu steaks to the respondent, in anticipation of an event by the Saudi crown prince, Mohammed bin Salman at his farm at the Ekland Game Farm in Makhado, Limpopo. According to Mr Fourie, the respondent ended up owing him a lot of money. An argument has since emerged between the two in terms of which the respondent says the meat supplied was not of good quality, and Mr Fourie retorting that the meat was not returned and that, had it been returned, he would apparently have credited the respondent. The story also included direct comments by a number of people the respondent had had dealings with, including his former purveyors, landlords and employees.
3. The language used in the article to describe the respondent was quite strong, as the headline indicates; for example, he was described as being “notorious for short-changing both service providers and employees”, “scamster and debt dodger”, someone with “a spate of failed and dubious business ventures” with a “catch-me-if-you-can-career”, etc. Before publishing the article, the journalist had sent a series of questions to the respondent, giving him 36 hours to respond. The respondent answered that he would do so in due course as he was travelling; however, he did not do so. Instead, the journalist’s key source, Mr Fourie, received a letter from respondent’s lawyers the next day (19 November 2021) which letter, argued the appellant, amounted to an intimidation to the source. The appellant therefore proceeded to publish the article without respondent’s reply.
4. The respondent raised a number of complaints, pointing out several articles of the Code he felt had been contravened. He argued that he had been defamed and demanded an apology. It is common cause that the respondent is otherwise a highly regarded chef, internationally; a skilled chef whose services the Saudi crown Prince used.
5. The applicant stuck to its story and, in substantiation thereof, attached a number of documents.
6. In his Ruling, the Deputy Ombud dismissed all the complaints but upheld two: namely, contraventions of section 1.1 and 1.8 of the Code. He ordered an apology and that the applicant be given a right to reply.

                 Regarding the breach of section 1.1 of the Code

7. The Ruling found that the appellant contravened section 1.1 in that it had made a gratuitous reference to the fact that the respondent was charged and acquitted on a charge of the theft of some three paintings. The complaint was largely based on the following in the article: “The brazen businessman first moved to South Africa in 2003 after a flurry of indiscretions overseas. This included his arrest, extradition and acquittal for the alleged theft of three Felim Egan paintings from the Fitzwilliam Hotel in Dublin”.
8. In his Decision granting leave to appeal, the Chair of the Appeals Panel expressed the view that it was not clear whether the appellant was also seeking leave to appeal the Deputy Ombud’s above finding, but opined that there was such application and granted leave. It now turns out that there was in fact no such application. Firstly, the appellant stated that it accepted the above finding of the Deputy Ombud. Furthermore,  it is clear from the appellant’s heads of argument that the appellant does not pursue such an appeal; the respondent is therefore correct that there is no such appeal before us. What is before us is therefore only the appeal relating to the contravention of section 1.8 of the Code.

Regarding the breach of article 1.8 of the Code: Failure to give right of reply

9. The Deputy Ombud held that the respondent was not given adequate time to respond. It is common cause that the respondent was given some 36 hours and that he said he was travelling and would respond in due course; it is also common cause that he did not do so. This was on 18 November 2021. When he did not do so, the appellant went ahead without his response and published the article on 20 November 2020.  The appellant contends that the respondent was given a reasonable time to respond but did not do so until after a month. The second point raised by the appellant was that the publication had to be made because there was some intimidation of its source; by this the appellant was referring to a letter by respondent’s attorneys on 19 November 2020. The argument of intimidation cannot stand. Firstly, the respondent points out that the letter was not related to the questions that had been sent to the respondent; instead, the letter dealt with a historical dispute between the parties. As respondent’s counsel put it, the letter was part of an ongoing engagement between the respondent and the appellant’s source. Secondly, the contents of the letter cannot be seen as amounting to intimidation. The only point therefore remaining before us is whether or not the 36 hours given constituted a reasonable period. In this respect, the following factors must be taken into consideration.

9.1 The respondent is clearly a seasoned international business person. If he felt that the time given was not reasonable, he could have said so, and asked for an extension; but he did not do that; instead he simply said he would respond in due course.

9.2 The questions related to respondent’s businesses and therefore to matters within his personal knowledge. This must have conveyed to the appellant that the respondent was in a position to reply as he had promised, especially as he had not asked for an extension. He knew that the intention was to publish the story after 36 hours.

9.3 In his papers in support of his case that the period given was too short, the respondent does not indicate, let alone with any motivation, as to what would have in the circumstances been a reasonable period. Had he done so, we would have been in a position to contrast the period he suggested with the 36 hours given to him by the appellant. During argument, it was conceded on behalf of the respondent that there was no evidence that he engaged with the questions posed or made any attempt to respond to them in any meaningful manner. It is difficult to see how an argument that the 36 hours is unreasonable can be sustained if there is no evidence that the respondent attempted to respond but was unable to do so. The mere fact that he was travelling is insufficient, given that most of the questions related to matters within the personal knowledge of the respondent. This raises a serious question whether he had any genuine intention of responding, as he put it, “in due course”.

10. It was also argued that either before or after the expiry of the 36 hours, the appellant should have returned to the respondent to tell him that the appellant was otherwise going to go ahead and publish. Firstly, this argument would fall away anyway once it is established that the period given was reasonable. Secondly, it would render the deadline meaningless. The clear intention of stipulating the 36 hours within which to respond was to alert the respondent that he had until that period to respond. The subject of a critical rapportage cannot determine his or her own deadline to manipulate the timing of publication, otherwise embarrassing articles would never see the light of day. The argument that the respondent needed time to consult with his records does not assist his case; if anything, it makes it worse: if he genuinely wanted time for that, he should have asked for an extension, something he did not do or give any explanation why he did not. The issue of whether the subject of critical reportage  was given reasonable time to respond will depend upon, amongst other factors, the context, the nature of the reportage, the nature and complexity of the questions posed, and whether any meaningful and genuine attempts were made by the person to whom questions are posed to engage with them and reply. It will also be relevant for the party contending that the period provided for a response is unreasonable to stipulate what  a reasonable period would be. The objective of clause 1.8 of the Code is not to delay the publication but rather to provide the subject of critical reportage a fair opportunity to reply. Whether a reasonable period has been given for a response will depend on the facts and circumstances of the case. In this instance we are of the view that the 36 hours given to the respondent to reply was reasonable.

11. We therefore disagree with the Deputy Ombud that reasonable time was not given and therefore that there was a contravention of section 1.8 of the Code. In the circumstances, the following Order is made:

          11.1 The Deputy Ombud’s finding that the appellant contravened the provisions of section 1.1 of the Press Code, and the sanction of                 apology imposed, are confirmed.

          11.2 The Deputy Ombud’s finding that the appellant contravened the provisions of section 1.8 of the Press Code is hereby set aside.

          11.3 The appellant is ordered to issue an apology to the respondent;

         11.3.1 The apology to be submitted to the Executive Director within seven days                   of this Decision;

          11.3.2 the headline should contain the word “apology”; and refer to the   complaint in this matter and must end with the sentence “Visit               www.presscouncil.org.za for the full finding”;

          11.3.3 the apology must be published with the logo of the Press Council;

          11.3.4 the apology to be approved by the Executive Director and be published by a date set by the Executive Director.

Dated this 7^th day of June 2022

Judge B M Ngoepe, Chair, Appeals Panel

Prof K Govender, Public Representative

Ms Judy Sandison, Media Representative

For the appellant: Mr G Claassen

For the respondent:

Adv G Bester

Instructed by Attorney Jerome Levitz