3 August 2011

Shabnam Mohamed vs. Sunday Times

2011 (Rulings), All Rulings, Ombud Rulings

This ruling is based on the written submissions of Ms Shabnam Mohamed and the Sunday Times newspaper.

Complaint

Ms Shabnam Mohamed complains about a front page picture and caption in the Sunday Times, published on April 3, 2011, as well as about a story that the caption refers to. This caption reads Model leads fight to free Shaik – Page 3; the story is headlined Zany bid to win Shaik pardon – Beauty queen offers prize to spend a day with convicted fraudster.

Regarding the front page, Mohamed complains that she:
• was not asked for comment;
• is unhappy with the impression that the picture creates; and
• is not a model.

Regarding the story, she:
• says that the reporter did not try to get a face-to-face interview with her;
• says that the reporter did not get to the essence of the story;
• questions the use of the words “zany” and “win” in the heading;
• objects to being called “eccentric”;
• says that the reporter had not investigated thoroughly enough;
• questions the motivation behind the statement that her relationship with Shaik was “unclear”;
• says that the use of the words “has tried” instead of “is trying” misleadingly implies that the campaign was over;
• objects to the sentence that mentions both herself and Shaik’s wife, implying that she had an extra-marital affair with Shaik;
• says that Shaik did not distance himself from the campaign;
• says it is factually inaccurate to link her statement about the media and the DA to the reason why she thought Shaik should be pardoned;
• says the newspaper is disregarding her view when switching from an observation about Shaik’s character to the mentioning of a charity golf day; and
• says the reference to journalist Amanda Khoza creates the impression that the latter has laid a police complaint against her.

Analysis

The story, written by Subashni Naidoo, says that former Miss India South Africa winner Shabnam Mohamed is an “eccentric beauty queen” and that the former TV presenter has now “launched a competition offering two South Africans a unique prize – to spend a day with Shabir Shaik”. This was reportedly part of a campaign to lobby President Jacob Zuma to pardon Shaik. The story says that Shaik has distanced himself from this campaign, which has received support “from only 34 people since its launch on March 21”. Naidoo also reports that Mohamed’s relationship with Shaik, “who is separated from his wife”, is “unclear”.

I shall now consider the merits of the complaint:

The front page

Not asked for comment

Mohamed complains that the newspaper used a picture of her, “yet they never had trouble calling me for quotes (and) views…before”.

Sunday Times says the picture is a “plug” (a device to draw readers’ attention) for an inside story. It argues: “It is not a story in itself and therefore did not require comment or input from Mohamed.”

The newspaper is correct – it cannot be expected to ask the subject of a plug for comment.

The impression that the picture creates

Mohamed says that the newspaper used a picture that was three years old. That picture, she adds, was taken by its photographer (Jacky Clausen), “who coaxed me for particular poses, even though I expressed reservation about the impression created”. She explains that the picture was used in an article about reporter auditions for SABC’s Eastern Mosaic.

The newspaper denies that it was at fault for using the picture. It says that the picture was taken with Mohamed’s co-operation and that it is common practice for newspapers to use pictures that are stored in their archives. It adds that Mohamed has not submitted any valid reason why this picture should not have been used as opposed to a more recent one.

Mohamed replies that the newspaper could have asked her to mail it a newer picture. She says the published picture is aimed at underscoring the lie that she is “only” some beauty queen-model.

It has to be noted in this regards that the story also calls Mohamed “an admitted attorney”.

Be that as it may, this part of the complaint is frivolous – the newspaper cannot be blamed for publishing a picture that Mohamed co-operated with when it was taken. Besides, the Sunday Times was free to choose which picture of her it wanted to use. I would step way beyond my mandate if I were to tell newspapers that they could have chosen better pictures and that they were breaching the Press Code for picking one that the subject is not satisfied with.

Not a model

The plug on the front page refers to Mohamed as a “model”.

She denies that she is a model, and adds that Naidoo knew this – so there is “absolutely no excuse for anyone to encourage blatant lies and justify tawdry tactics”. She adds that the newspaper could instead have referred to her as an attorney, a journalist, an activist or a communications consultant.

Sunday Times says it accepts that Mohamed is not a model.

This makes it reasonable for me to accept that the newspaper inaccurately referred to Mohamed as a model. However, seen in isolation I am not in a position to prove or even to argue that the word “model” was deliberately picked to slant the story.

For the record, again: The story does refer to her as an “admitted attorney”.

The story

No face-to-face interview

Mohamed says the mere fact that Naidoo did not try to get a face-to-face interview with her or the campaign’s co-founder Mr Krish Dudhraj, shows that the journalist missed the significance of the expose on what was the country’s biggest political conspiracy and trial to date. She adds that Naidoo did not even mention Dudhraj, who is a key interviewee as he is the campaign’s co-founder.

Sunday Times says that:
• Naidoo did approach Mohamed for an interview, but the latter said she would prefer to do the interview via email;
• the reporter then emailed questions to her, to which she did not respond;
• Mohamed later sent an email to Naidoo, stating that Dudhraj prefers not to deal with the “traditional” media;
• Mohamed posted a message on Facebook, saying that she was not going to respond to Naidoo’s “amateurish questions”;
• Naidoo did try to trace Dudhraj to interview him, but that she was unable to do so; and
• Dudhraj’s contribution was not essential to the story and that it was therefore not obliged to interview him.

Mohamed replies: “What is your evidence about this face to face interview when the deadline was the very next day? Was I supposed to drop everything else in my life or else?”

She also says that it is her right not to respond and that she should not be “punished” for that. She calls the newspaper’s actions a blatant attempt to malign her professional reputation, adding that most of Naidoo’s questions could have been answered by researching the articles that she posted on her profile.

She states that Dudhraj is the co-founder of the campaign and Shaik’s longstanding comrade. “And his contribution was not important? This defies logic and reason.”

I take the following into account:
• In her complaint, Mohamed denies that Naidoo tried to get a face-to-face interview with her. However, in her reply to the newspaper’s response, she refers to an attempt to organise an interview one day prior to publication – an indication that Naidoo did ask her for an interview.
• I have a copy of an email by Mohamed to Naidoo, dated March 31, 2011, in my possession in which she said that Dudhraj has indicated that he would prefer not to deal with traditional media. She added: “If that changes, I will let you know.” I certainly would not have blamed the Sunday Times if it did not try to contact him – the message from him via Mohamed was clear enough.
• The email containing Naidoo’s questions directed to Mohamed is dated March 30. As the story was only published on April 3, this gave her ample time to respond.

Based on these considerations, I do not believe that there is ground for this part of the complaint.

Not getting to the essence of the story

Mohamed says that she has “clearly and consistently” stated that the crux of the campaign is that former President Thabo Mbeki framed Shaik to politically assassinate President Jacob Zuma. She asks why Naidoo completely missed making that the focus of her story.

The newspaper says that Naidoo was at liberty to pursue the story in the way that she did, and that the reporter was not obliged to follow Mohamed’s agenda. It adds: “Nor was she (Naidoo) obliged to give credence to a conspiracy theory.”

Mohamed replies that her “agenda” is truth and justice, but that that of the newspaper is sales through undignified scandal. She also asks why the newspaper would want to cover the story if it was merely a conspiracy theory. “Just because the Sunday Times doesn’t know what really happened, does not make it a conspiracy theory.”

The focus of the story is represented in the intro, which reads: “An eccentric beauty queen and former TV presenter has launched a competition offering two South Africans a unique prize – to spend a day with Shabir Shaik.” The “conspiracy theory” that Mbeki allegedly framed Shaik to politically assassinate Zuma may be behind Mohamed’s actions; however, the essence of Naidoo’s story is different – the article merely highlights the fact of the campaign. She was indeed free, and justified, to do so.

Whilst it would have been preferable to inform the public about Mohamed’s conviction, not doing so cannot constitute a breach of the Code as it was not material to the gist of the story.

‘Zany’ and ‘win’ in the heading

The main heading reads: Zany bid to win Shaik pardon.

Mohamed wants to know how the campaign is “zany” and she gives “zero points” to the word “win”.

Sunday Times says the word “zany” is acceptable – winning a day with Shaik “is a highly unusual prize in a highly unusual competition”. It adds that it is difficult to see how such a competition can help secure Shaik’s pardon. The newspaper says that Mohamed has failed to spell out her objection to the use of the word “win”.

Mohamed replies that the newspaper has offered no cogent explanation as to why the word “zany” is acceptable. She argues that there is a big difference between “unusual” and “zany”.

She also says that, had the newspaper bothered to do proper research, it would have known that the initiative (not the prize) was not intended to secure his pardon, but to help people see that he is an ordinary human being. She also denies that there was a “prize” – hence nobody could “win”.

As this argumentation was leading us away from the gist of the complaint, I asked the Sunday Times for clarification on its use of the word “zany”. The newspaper says the Collins English Dictionary lists the following definition for “zany” when used as an adjective (as used in the headline): “Comical in an endearing way, imaginatively funny or comical, especially in behaviour”. The newspaper says that the first part of this definition, namely “comical in an endearing way”, is the most fitting definition for the headline in question.

Some internet definitions of the word “zany” include “ludicrously or whimsically comical” and “clownish”.

The essence of the word seems to be “comical” and/or “clownish”.

Art. 5.1 of the Press Code states: “Headlines…shall give a reasonable reflection of the contents of the report…in question.” The question, therefore, is not whether Mohamed’s actions can be described as “zany”, but only if the story supports this notion.

So: Does the story portray Mohamed’s campaign as being comical (in an endearing way), or clownish, or imaginatively funny?

I have mulled this over for a long time. Eventually, I have decided that even though I do not find the campaign clownish or funny (yes, it is unique, unusual, rare, uncommon and even odd) and would therefore not have called it “zany”, I am also not going to be judging the newspaper on its sense of humour, and, even worse, punish it for it.

Regarding the use of the word “win”: In her reply to the newspaper’s response to her complaint, Mohamed denies that there was a “prize” – hence nobody could “win”. This is odd, as she does not deny this issue in her complaint.

I am therefore inclined to give the newspaper the benefit of the doubt on this point.

‘Eccentric’

The intro to the story refers to Mohamed as being “eccentric”.

Mohamed complains that the use of the word “eccentric” is aimed at deliberately discrediting her and at derailing the campaign. She refers our office to “some open and measured print responses to the campaign, and me leading in it” in the Sunday Tribune Herald of April 3; she also points to the “growing social media support” for the campaign.

The newspaper says the use of the word “eccentric” is acceptable “for the same reasons it is acceptable to use the word ‘zany’ in the headline”.

Definitions of the word “eccentric” include:
• deviating from the recognized or customary practices;
• irregular;
• erratic;
• unusual; and
• peculiar.

There is little doubt that Mohamed’s campaign is indeed befitting of the descriptions mentioned above. The use of the word “eccentric” is therefore justified.

However, it must be said that it would have been better to describe her actions as eccentric, rather than her as person. On the other hand, it can also be argued that you are what you do.

Taking into account that the campaign was rather unusual, the newspaper was justified to use the word “eccentric” – which is not a conclusion on my part that Mohamed is indeed eccentric.

Not investigated thoroughly

Mohamed complains that Naidoo had not investigated thoroughly the statement that Shaik had “distanced” himself from the campaign. She says: “Note that in her pseudo-questions to me, she never asked about this aspect of the campaign.” She adds that, had Naidoo bothered to do proper research, she would have known the names of the people who have expressed great respect for Shaik and wanted to meet him.

Sunday Times says it is true that Naidoo did not ask Mohamed for comment about the fact that Shaik had distanced himself from the campaign. However, “we submit it was not necessary to do so and his comment was merely reaction to the campaign and not pertinent to any aspect of it”.

The newspaper also says that Naidoo was obliged only to research facts relevant to the story. It argues: “The names of people who have expressed great respect for Shaik were not relevant to the story. We submit that our reporter competently researched the facts relevant to her story.”

Note that, in her email to Mohamed, Naidoo asks her the following question: “How has Shaik responded to the campaign?”

To me, that is sufficient (regarding this specific matter) as this question gave Mohamed the opportunity to say whatever she liked on this matter. It was not Naidoo’s fault that Mohamed had failed to respond to this question.

Related to Shaik

The story says that Mohamed’s relationship with Shaik, who was separated from his wife, was “unclear” and that she had refused to comment.

Mohamed questions the motivation for stating that her relationship with Shaik was “unclear”. She says she does not know if that was a bigot’s matter or a sexist’s one. She asks: “Was she intimating that I am a part of this campaign because I am a Muslim? Or, that because I’m female (and a ‘beauty queen’), that there’s some kind of inappropriate relationship between Shaik and me?” She also asks: “What if I was male – what gossip laden angle would they then resort to?”

Sunday Times says that Naidoo’s question to Mohamed was “an obvious and appropriate question to ask”. It says: “It is a question that will leap into the minds of our readers. Why would Ms Mohamed run this campaign? What is her relationship to Shaik?”

The newspaper also argues that it did not in any way suggest that there was an inappropriate relationship, or one based on religious affiliation. It adds that Naidoo reported that Mohamed chose not to answer the question. It says: “She was in a position to influence the story by responding to the question but chose not to.”

Mohamed replies that Naidoo should have asked her why she was in the campaign. She asks: Does someone has to have a relationship in order to campaign for human rights?

Firstly, in her email to Mohamed, dated March 30, Naidoo’s first question reads: “What prompted you to start such a campaign?” So she did ask her why she was “in the campaign”.

Secondly, I have asked the newspaper on July 5 for further clarification on this matter, as the only correspondence that I have is the email mentioned above – and this email does not contain a question about Mohamed’s relationship with Shaik. My specific question was: “Did Naidoo in fact ask Mohamed this specific question?”

The answer to this was “no”.

My focus therefore moves to the question if it was fair to report that Mohamed’s relationship with Shaik was unclear – if she had never been asked that question as the statement in dispute certainly raises the possibility of a sexual relationship – an unnecessary innuendo, at best (I shall shortly come back to this aspect).

Sunday Times admits that it was not fair to report that their relationship was “unclear” without asking her this question.

It indeed was not.

Implying the campaign was over

The phrase in dispute says that Mohamed “has tried” to rally support for a petition she plans to send to Zuma to pardon Shaik ahead of Freedom Day.

Mohamed complains that the use of the words “has tried” instead of “is trying” misleadingly implies that the campaign was over.

Sunday Times argues that Mohamed is reading too much into the words in question. It says that the context of the story makes it clear that she would be attempting to rally support for the petition until about Freedom Day (April 27). It adds: “At the same time, by the time of publication her attempts had garnered only 34 votes.” This figure, it says, was obtained from Mohamed’s Facebook page.

The newspaper says that Mohamed also did not answer the question about the response that the campaign has had so far. It argues: “We submit that in the circumstances, it was reasonable for us to say that 34 votes had been garnered by the time of publication.”

Mohamed replies that the newspaper may describe the 34 votes as “only” – however, given the “demonization” of Shaik, this is quite an accomplishment. She adds that the petition was only one part of the campaign. She also asks why the newspaper ignored the “ample responses” on Facebook.

The newspaper is correct in that the context of the story points to the fact that the campaign was not over.

For example, the story says that:
• Mohamed “is running” the campaign;
• two people “will get” the chance to spend a day with Shaik; and
• Mohamed’s alleged that the newspaper was “trying” to derail the campaign (which implies that the campaign was still on-going).

Mohamed indeed read too much into the phrase “has tried”.

An extra-marital affair with Shaik

Mohamed complains that the story mentions her and Shaik’s wife in the same paragraph. This, she argues, blatantly implies that she had an extra-marital affair with Shaik (who was old enough to be her father). She calls this reportage “sleazy, tabloid, gonzo journalism”.

The paragraph in dispute reads: “Her relationship with Shaik – who is separated from his wife – is unclear. She refused to comment and…accused the Sunday Times on her web page of trying to ‘derail’ the campaign.”

The newspaper denies that the sentence in dispute implies that Mohamed had an extra-marital affair with Shaik.

On the contrary, Mohamed says: “Everyone who has spoken…to me about this article has said that is exactly what was implied.” She asks why else was the relationship aspect directly linked to a sentence about Shaik’s wife?

I have already decided that it was unfair to report that their relationship was “unclear” as that question was never posed to Mohamed. The question now is whether this reference, coupled with the statement that Shaik was separated from his wife, implies that Mohamed and Shaik had an extra-marital affair.

As far as I am concerned, the sentence in dispute does leave room for the impression that there may have been an extra-marital affair between the two. However, that is not the only possibility – there may have been many other types of “unclear” relationships as well.

I am not going to single out one possibility and conclude that that is the only one readers may have come to. I am therefore giving the newspaper the benefit of the doubt on this matter.

Distancing from campaign

The story says that Shaik insisted that he was “not involved in the campaign in any way”.

The article also quotes him as saying that:
• people had a right to express themselves, provided “this ventilation is done in a respectful and appropriate manner”; and
• he would not hesitate to seek every legal remedy against initiatives which involves the use of his name which would bring the ANC or Zuma into disrepute.

Mohamed says that Shaik was not involved in the campaign, but that he did not distance himself from it either. She explains: “But his wariness of how media spins everything into tangents, pressured him to make a comment about legal advice.” She says she has proof that Shaik sent Naidoo an updated comment, with a significantly different opinion – however, Naidoo did not correct her article even though she had the time to do so.

In later correspondence Mohamed says: “…the strategic exclusion of a serious, deliberate and revealing component of his (Shaik’s) full comment, was selective…designed to create a particular impression of discord”.

Sunday Times replies that Shaik submitted two versions of the same comment to the newspaper. It says that, as the content of the second version did not materially differ from the first one, it opted to carry the first one. The newspaper argues that Mohamed has not indicated in what way she regards the second message as containing a “significantly different opinion”.

It adds that unfortunately these messages have been automatically deleted by MTN – who is “not willing to retrieve the messages without a case number and letter of motivation”.

Mohamed says that Shaik’s second comment clearly shows that he did not “distance” himself from the campaign – instead, it rather illustrated his support of human rights activism and of the campaign. She argues: “This is why it was not selected. It would go against the impression Naidoo was blatantly trying to create.”

These are my considerations:
• In an email, dated 13 July 2011 and addressed to the journalist, Shaik writes: “I confirm my comments as expressed in your article were true and accurate and as such I still maintain this position.”
• Despite attempts from my side, the parties were unable to supply me with both texts by Shaik – I am therefore not in a position to make a judgement on the question if the newspaper omitted material information from Shaik’s second communication or not.
• The newspaper did furnish me with the following email that Shaik has sent to Naidoo: “The paragraph in question that was excluded in your article, is as follows: ‘For evil to prosper Good men must choose to remain silent’. The above quote of the late Dr. Martin Luther King, is indeed very relevant to my situation and my continued incarceration. I believe that there are many facts known by many people within our Govt & the ANC that led to an unfair trial and my subsequent prosecution. The fact that this matter is still not been addressed and rectified bears testimony to the above quote. I believe this censored paragraph was also relevant to the point Ms Shabnam Mohamed was making.” However, this comment may have been material to Shaik, but it was not to the story – which was about something different.
• As this is the only comment at my disposal that the newspaper had in its possession but did not use, and this comment does not speak to the complaint (that Shaik has “distanced” him from the campaign), there is no way that I can find in favour of Mohamed on this point.

Linking of statement

The sentences in dispute read: “Mohamed claims the media and the DA had influenced public perceptions of Shaik. ‘On this basis alone, Shaik should have been granted his political pardon in 2005. It is not clear why the president’s closest advisers are influencing him not to grant Shaik his pardon. After all, Shaik was wrongfully convicted,’ she wrote on her Facebook page.”

Mohamed complains that it is factually inaccurate (“another lie”) to link her statement about the media and the DA to the reason why she thought Shaik should be pardoned.

The newspaper argues that the document submitted by Mohamed herself titled Free Shaik Now proves that Naidoo reported accurately. Referring to the phrase “generally corrupt relationship” between Shaik and Zuma, it quotes in part: “Squires stated that the prosecution (and then the media and the DA) invented this virus-like phrase which greatly impacted on the public’s perception of Shaik. On these (sic) basis alone, Shaik should have been granted his political pardon in 2005.”

In Free Shaik Now Mohamed also writes: “Forget everything the media and opposition party, the Democratic Alliance, gleefully fed you over the years.”

The only logical conclusion is that the newspaper was justified in its reportage on this issue.

View disregarded

The story mentions Mohamed’s “measured observation” of Shaik’s character “as one of a kind, wise, funny and direct individual; a treasure trove of historical events in our country’s past, from apartheid to date; with a razor-sharp mind for sociopolitical and economic direction.” Immediately after this, the following is reported: “Her campaign plans also include a charity golf day in May at Durban’s Papwa Sewgolum Golf Course.”

Mohamed says the newspaper is disregarding her view when switching from her observation of Shaik’s character to the charity golf day. She argues that Naidoo did this to influence her readers against Shaik.

The newspaper says there is no basis for claiming Naidoo showed disregard for Mohamed’s view. It states: “Our reporter reflected her opinion of Shaik and then turned to another aspect of the campaign. No reader would read the mention of the golf day a disregard for Ms Mohamed’s opinion of Shaik.”

This part of the complaint is frivolous – it is perfectly normal for a story to “switch” from one aspect to another.

Complaint against Mohamed

The story mentions Shaik’s alleged assault on a reporter at the Papwa Sewgolum Golf Course. The sentences in dispute read: “She (Mohamed) embarked on a tirade against the media soon after Shaik’s alleged assault on reporter Amanda Khoza at the Papwa Sewgolum Golf Course last month. Khoza has since filed a complaint with the police.” (emphasis added)

Mohamed says the reference to Khoza creates the impression that the latter has laid a police complaint against her. She adds: “If she has, I’d love to hear about it from the highly imaginative and deceitful Subashni Naidoo.”

Sunday Times denies that the story either says or implies that Khoza laid a complaint against Mohamed. It says: “It had, in fact, been widely reported at the time that Khoza had laid a charge against Shaik. It is a rather willful reading of our story to come to the conclusion that Khoza had laid a complaint against Ms Mohamed.”

The newspaper is correct – it is not reasonable to make such an inference. There is indeed nothing in the story to suggest that Khoza has filed a complaint with the Police against Mohamed.

Finding

The front page

Not asked for comment