Ruling by the Press Ombudsman
June 22, 2013
This ruling is based on the written submissions of Mr Wisane Ngobeni (Chief Director responsible for Marketing and Communication in the Department of Communications), for Minister Dina Pule, and the Sunday Times newspaper.
Complaint
Pule complains that that the editor of the Sunday Times, Phylicia Oppelt, has acted unethically by handing over information to the DA’s Mrs Dianne Kohler-Barnard (which led to Parliament’s ethics committee investigating her), and accuses the newspaper of thereby having lost its independence in favour of the DA.
Please note: Pule mentions in her complaint that the Sunday Times has “for months” been publishing allegations against her; she also refers to stories in City Press and in Sunday World. I cannot entertain any these remarks as (a) she did not complain about these stories in Sunday Times, and (b) stories in another newspapers cannot be relevant to this office (unless somebody has complained about them).
Also, I am not interested in the merits or demerits of the allegations against Pule – my only concern in this matter is the question if the Sunday Times was in breach of the Press Code, or, to put it the other way around, it if was justified in its reportage.
The newspaper is under scrutiny here, not Pule.
Unethical behaviour?
Pule says that the editor’s actions raised serious questions about its independence and its adherence to the Press Code. “The Sunday Times is no longer just the messenger. It has become part of the story.” She adds that its conduct suggested that the interests of the newspaper and that of the DA were not independent of each other where matters involved her were concerned. “The Sunday Times’ association with the Democratic Alliance in this case has compromised the integrity of the newspaper. It has damaged the credibility of the Sunday Times and the media in general.”
She argues that there was no evidence that the information could not have been obtained by the ethics committee itself or through other legitimate means.
The minister also notes: “It is shocking that Oppelt believes it is in the public interest to…disclose information obtained through a journalist (sic) endeavor to third parties such as opposition parties and parliamentary committees.”
Pule concludes that Sunday Times was part of a clandestine activity meant to influence the outcome of the parliamentary investigation. She argues that the newspaper has compromised its integrity and harmed freedom of expression, and ultimately calls for Oppelt’s resignation.
Sunday Times says that:
· it co-operated with the ethics committee and not with a political party, after it was approached by various members (including members of the DA, the ANC and the IFP) – “the approach from committee members made it clear that they did not have the information that we had access to”; and
· it shared the information as the committee was constituted largely on account of its stories and because the findings of the ethics committee would be directly relevant to the stories it had published.
Elsewhere, Oppelt also wrote: “Given the unique set of facts, and concerned that the committee might reach a finding based on partial or incomplete evidence, we felt obliged to co-operate in the investigation. We made a decision…on the basis of confidentiality. It is not our general practice to co-operate with outside investigations. Ms Pule’s actions are a matter of great public interest and that is where the focus should remain.”
In an article in Sunday Times (2 June 2013) Oppelt reiterated these arguments, and added that the newspaper did not compromise its sources – “they gave us permission to share the information” with the committee. She also argues that the Sunday Times was not the first newspaper to have co-operated with a government institution.
The newspaper denies that its conduct has influenced its reporting.
Before I go any further, I need to address the relevant section in the Press Code. Art. 3.1 says: “The press shall not allow commercial, political, personal or other non-professional considerations to influence or slant reporting. Conflict of interest must be avoided, as well as arrangements or practices that could lead audiences to doubt the press’s independence and professionalism.”
The second sentence is of particular importance to this complaint. The issue now is how to interpret this sentence. I had to consider this very carefully, as there is more to the interpretation of Art. 3.1 than meets the eye.
I have googled quite extensively to see if I could find any international examples of complaints and findings about similar cases – I found nothing (which is not to say that there are none). There are also no such complaints that have been lodged with this office, certainly not during my tenure of just more than three and a half years.
After having consulted widely, I have ascertained that there are two trends of interpretation:
· Because the first sentence of Art. 3.1 is about slanted reporting, the second sentence should come into effect only if it can be shown that its reportage was slanted as a result of a lack of independence; and
· The second sentence is strong enough to stand on its own, which means that a newspaper’s behaviour, prior to publication, is under scrutiny.
In support of the second line of interpretation are the following considerations:
· Art. 3’s headline says, “Independence and conflicts of interest” (emphasis added). The first sentence of Art. 3.1 can be interpreted as having a bearing on “independence”, and the second one on “conflicts of interests” – the “and” in the headline therefore seems to suggest that we are dealing with a second issue that can stand on its own, even though it is not a separate clause in the Code; and
· There are other examples in the Code that involves a publication’s behaviour prior to publication – see Art. 1.1, 1.2, the first parts of 2.4 and 2.5, 3.2, 11.1 (in a wider context), and 12.
After much thought I have decided that this is not a matter of or-or, but rather one of and-and.
This is why:
· The second sentence does reflect on the first as that is its immediate context; and
· The second sentence is “independent” enough of the first one to stand on its own, and its wider context does suggest that that can indeed be the case.
This means that I shall have to consider the question if the newspaper’s reportage was slanted (due to a possible lack of independence), as well as to look into its behaviour prior to publication.
Was the newspaper’s reporting slanted?
Fortunately, Pule complained about two stories in the Sunday Times, which means that I have some yardstick to measure if the newspaper’s reporting was unduly influenced. These complaints were about a story published on 21 April this year, headlined Pule paper trail reveals how her lover’s cronies got jobs, and another one headlined We wronged the Sunday Times, Pule’s lawyer admits (May 5).
I have dismissed each of these complaints in its entirety. Therefore, I have no reason to believe that the newspaper’s reportage was slanted, let alone because of some unduly outside influence.
Unethical behaviour prior to publication?
I have asked the Sunday Times to respond to some questions regarding its behaviour prior to publication. I record a summary of its responses in italics:
· Do you have any proof that members of the ethics committee approached the newspaper for information?
We would be able to prove that we had telephone conversations with the members in question. But the people we spoke to were adamant that we do not reveal their names. As members of the ethics committee, they have all been sworn to secrecy about the proceedings before a judge. They are all most concerned that they would be seen as leaking information from the ethics committee if it became known that they spoke to us. None of them were willing to trade information with us – they all said we could help them but that they would not be able to give us information about the proceedings in return.
We do not wish to compromise them or renege on our undertakings to them, which is what we would have to do if we gathered proof that we ever spoke to them.
Our journalists are willing to depose to affidavits that they were approached for information by members of other parties, if you deem that necessary.
· When you sent the information to Kohler-Barnard, did you make it clear that the information was meant for the ethics committee and not for the DA? Can you provide me with that correspondence?
We do not have correspondence with Kohler-Barnard, or any of the other members of the committee to whom we spoke, to show you. The initial approach from Kohler-Barnard and the others was telephonic, after which we forwarded the information. We shared information with members from three different political parties. The fact that Kohler-Barnard gave the information to the registrar of the committee, who in turn placed it before the ethics committee – rather than call a DA press conference – should be proof enough that the purpose (to her) of obtaining the information and (to us) of providing it was to assist the committee and not to assist a political party.
It is important to emphasise that the DA has never used any of the information we submitted to the ethics committee for any press conference, in any press release or to comment to any newspaper.
Kohler-Barnard did not leak the information to the public. She merely failed to redact Sunday Times from the information she gave the registrar. Kohler-Barnard’s role was essentially that of a postman. If you would like to check this information with the registrar of the ethics committee, Fazela Mohamed, you can reach her on…
· Why did you not merely publish the information (maybe with a reference to your website if the information was too much to contain in a story or two)?
We had in fact already published stories based on the information we shared. We gave the committee some baseline information that we used to come to the conclusions we reached in our stories. We have never put forward the argument that we had too much information to contain in a story or two, or that we channeled information to the ethics committee that we did not use in our stories.
We gather information with a view to publishing stories. Sometimes we place that information on our website, sometimes we use it only in writing and substantiating our stories, sometimes we hold onto it for weeks, months or even years while we try to confirm it. Every time we gather information we make a choice about what to do with it and how to use it. There is always more than one correct or appropriate choice that we can make. We could have kept the information in question to ourselves but we made a different choice. We were within our rights to do so.
As a commercial enterprise we have to insist on retaining the right to use the information we gather in the manner of our choosing, and not the manner of some other party’s choosing or interests. In this case we made a choice to share the information with the ethics committee because we wanted to make sure it considered the information we based our stories on because the finding the committee makes on Dina Pule will indirectly be a finding on our stories.
The only time we should have to justify the manner in which we use information is where there is a clear allegation that we must answer of breaching the press code or of being in breach of the laws of the republic.
As we have previously stated, we made the decision to share the information with the ethics committee based on a unique set of circumstances. We do not have an arrangement with any political party or outside commercial entity to share information, and it is not our practice to do so.
· Why did the newspaper submit the information to the DA and not to the secretary of the ethics committee?
We gave the information to the members who approached us. If the approach had been a formal one from the secretary or the registrar, we would have responded formally to the secretary or the registrar.
· Why did the newspaper attempt to hide its identity if the matter was in the public interest?
We did not want to be the focus of attention of to muddy the waters by turning the committee’s work into a contest between Dina Pule and the Sunday Times. As we have previously stated, we wanted only for the committee to consider the information we used in writing our stories, since these would be indirectly on trial, so to speak.
· Why was the information submitted on the first day of the hearing when you had this information long ago (if you had…)?
We shared the information when we were approached to do so. We did not sit down and strategise about co-operating with the committee when we discovered it would be constituted. It was only after we were approached that we decided that it would be advisable and in the public interest to share the information.
In any event, we did not submit the information on the first day of the hearing. We submitted it on April 2 2013, when the members were preparing for the hearing. The first day of the hearing was on May 2 – a month later. It is important to note that on April 29 – the Monday before her first appearance before the ethics committee – Ms Pule called the press conference to launch her smear against our journalists. In other words we co-operated much earlier than the press conference and not out of malice or in our own selfish interests.
On the whole, I find the newspaper’s response to my questions quite satisfactory.
Let me say that, in general, it is a dubious and dangerous practice to provide information to politicians – it will immediately and inevitably lead to accusations of a lack of dependence and of a conflict of interest (as has happened in this matter).
However, that does not mean to say that it can and should never happen.
Yes, if the newspaper (for example) leaks information to a certain political party to give it the inside lane in a Parliamentary debate, the above-mentioned allegations would probably be justified (depending on the circumstances, of course – I am merely arguing in general here). In that case, the newspaper indeed would be more that a messenger – it then becomes part of the story (as argued by Pule).
In this case, though, the Sunday Times did not provide information to a political party, but to the ethics committee – after having been asked for it by members of the DA, the ANC and the IFP. I also believe that the publication indeed acted in the public interest (and I find its responses to my questions to be credible).
Therefore, I simply cannot conclude that the newspaper behaved unethically.
Let me explain the term “unethically” in a bit more detail. “Ethics” is about principles (the question of what is right and what is wrong) and consequences (what is good and what is bad).
It is a journalistic principle to be independent and to avoid any conflict of interest. In this instance, I have concluded that the Sunday Times was not wrong (in principle) to provide the ethics committee with information. As far as the consequences of the newspaper’s behaviour is concerned: It could only have been in the greater good of the public to have shared its information – the consequences can only be overwhelmingly good, and not bad.
Remember that the preamble to the Press Code starts with these words: “The press exists to serve society.” It also says: “Our work is guided at all times by the public interest, understood to describe information of legitimate interest or importance to citizens.”
Conclusion
After having investigated two stories that Pule complained about, as well as the circumstances surrounding the newspaper having provided Parliament’s ethics committee with information, I could find no trace of evidence that the newspaper has lost its independence in favour of the DA or that it could justifiably be accused of unethical behaviour in this matter.
Finding
The complaint is dismissed in its entirety.
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 Adjudication Panel, Judge Bernard Ngoepe, fully setting out the grounds of appeal. He can be contacted at Khanyim@ombudsman.org.za.
Johan Retief
Press Ombudsman