Ruling by the Press Ombudsman
30 January 2014
This ruling is based on the written submissions of Ms NtokozoYingwana (representing Sex Workers Education and Advocacy Taskforce – SWEAT), and the editor of the Polokwane Observer newspaper, Yolande Nel. Another document was submitted, compiled by Ms Penelope Ngoasheng, containing statements by these three individuals.
Complaint
Three sex workers complain about a front page picture and story in the Polokwane Observer on 3 October 2013, headlined Sex sells in Ladanna.
These workers, only known as Ireen, Sally and Mpho, complain that the newspaper:
· photographed them and published the picture without their consent; and
· did not ask them (or any other sex worker) for comment.
The document compiled by Ngoasheng highlighted the humiliation and harm caused by this picture to the women, calling it defamation of character.
The text
The story said that “prostitutes” were lately capitalizing on the influx of drinkers at one of the many liquor outlets along the main street in Polokwane. The article also reflected the anger of local residents at these practices, which reportedly resulted in dangerous situations, as well as in the decrease in property prices.
Complaint in more detail
Photographed without consent
The picture (and story) was published on the front page, as well as on its website.
The workers complain that the journalist took a picture of them without their consent. Yingwana writes: “We explained [to the newspaper] that regardless of whether sex work is criminalized or not, even criminals have rights. And that journalism ethics dictate that we seek consent before taking and publishing a photograph of anyone (sex worker or not).”
Not asked for comment
The workers complain that the newspaper did not ask them (or any other sex worker) for comment. This has allegedly resulted in biased reporting.
Humiliation, harm, defamation
The document compiled by Ngoasheng highlights the humiliation and harm this picture has caused these individuals, calling it defamation of character. She adds: “They highlighted that their human rights were violated and they do not understand what gave the journalist the idea that they are sex workers as they were just walking across the street like anyone (else).”
The newspaper’s reply
Nel says that the Polokwane Observer investigated the matter following various complaints by residents over an extended period of time. “The story was published after careful consideration and it was found to be morally justifiable, not sensational and in [the] public interest.”
The editor stresses that the publication takes seriously its role as a public watchdog, and that several members of the public expressed their gratitude towards the newspaper for addressing their concerns. Also, the police subsequently closed down on the area, leading to several arrests.
Nel adds that none of the people on the front page picture could be identified, save for the three individuals “whose complaints were raised in a meeting during which they displayed aggressive behaviour, used verbally abusive language and threatened with physical action…”
My considerations
The most serious issue is the insinuation that the journalist may have wrongly identified these individuals as sex workers, with the allegation of defamation that would naturally follow (Ngoasheng: “[These individuals] highlighted that their human rights were violated and they do not understand what gave the journalist the idea that they are sex workers as they were just walking across the street like anyone...”)
If these people were wrongly identified as sex workers, the reporting would have caused them huge unnecessary harm and indeed would have amounted to defamation (or rather, would have been in breach of Section 4 of the Press Code, as far as this office is concerned).
Firstly, I take into account that one cannot defame somebody else with the truth.
So, what is the truth?
I note that Ngoasheng writes the following about one of these individuals: “One of the ladies was worried that their pictures would expose her [as] a sex worker to people that she does not want [them] to know. Sex work is something she is doing in secret and does not want people to now let alone her family members.”
Based on this admission, I believe that the newspaper was justified in identifying these individuals as sex workers.
The second factor in play regarding defamation is public interest. I have little doubt that the newspaper passes this test as well.
Here are some other considerations:
· The sex workers were in public, which means that the newspaper did not need any kind of permission to take pictures of them – once you have left the sanctity of your home, or whatever other private place you were in, you have given up your privacy of your own choice; and
· It is not clear why comment should have been forthcoming from individuals when their names were not mentioned in the story and the matter was about a much broader issue.
Lastly, I have taken a serious look at the rest of Press Code, especially Section 5, to see if there were any breaches. There were none. There is also no indication that sex workers should enjoy any kind of special treatment by the press.
Finding
The complaint is dismissed.
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 Chair of Appeals, Judge Bernard Ngoepe, fully setting out the grounds for the application. He can be contacted at Khanyim@ombudsman.org.za.
Johan Retief
Press Ombudsman