Brian Kahn Inc. vs. Daily Sun

This ruling is based on the written submissions of Ms Nicqui Galaktiou (from Brian Kahn Inc.), and Andrew Boerner (Jurgens Bekker Attorneys) for the Daily Sun newspaper.

Complaint

Brian Kahn Inc. (BKI) complains about a story on page 2 in the Daily Sun on 20 February 2013, headlined Lawyers dump Malema!

BKI complains that the use of the word “dump” in the headline and the phrase “allegedly dumped” in the intro were inappropriate.

The law firm also complains that both the headline and the story have defamed it.

Analysis

The story, written by Mpho Kobue, was about the withdrawal of Mr Julius Malema’s lawyers (BKI) from a case in which he opposed SARS’s application to declare him bankrupt and to sell off his assets to pay his debts.

Note: I am ignoring many of the arguments from both sides, as these did not go to the core of the matter.

‘Dumped’ – headline

BKI says that the use of the word “dump” in the headline was inappropriate and rendered the headline “sensationalistic and a misrepresentation”. The firm also argues that the use of the word “dumped” is not the same as “withdrawn”.

Galaktiou mentions that she advised Kobue that BKI had “withdrawn” from the case, without giving him a reason for such withdrawal (as such information was confidential and fell under attorney/client privilege). She refers to the Concise Oxford Dictionary, where the word means to deposit or dispose of, to put down firmly and carelessly, and to desert someone.

Daily Sun provides this office with examples of stories that used the word “dumped”, and argues from these examples that there is no malice in the use of that word (see the sub-section under “defamation”). The newspaper says that the word “dumped” is commonly used when a person or company parts ways – and argues that the headline reflected the gist of the story.

Here are my considerations: It is beyond dispute that BKI’s and Malema’s ways have parted. But who took that initiative? Malema could have been dissatisfied with BKI’s services for whatever reason, in which case he would have “dumped” BKI. On the other hand, if the initiative for the termination of their relationship came from BKI, then the word “dump” may have been appropriate in the story.

But how was Daily Sun to know who dumped whom? It did not know… Because the newspaper had no proof who took the initiative, it was not justified to choose the one alternative over the other. (This does not mean to say that BKI did not take the initiative – the point is that Daily Sun simply did not know that).

Therefore: The use of the word “dump” in the headline was an assumption that was not necessarily based on facts. It also did not reflect the content of the story itself, which at most said that the “dumped” was an allegation.

‘Allegedly dumped’ – intro

The intro to the story stated that Malema’s lawyers have “allegedly dumped him”.

This begs the question who made this allegation. The story referred to three parties – Malema, SARS and BKI. Of the three, it is only reasonable to deduct that the allegation came from BKI, especially as it quoted Galaktiou as saying that the law firm has withdrawn from Malema’s case.

However, Galaktiou emphatically denies that she made any such allegation. This means that Kobue concluded or assumed that “withdrew” and “dumped” were synonymous – as indeed the newspaper argues.

But they are not synonymous – it depends on who took the initiative.

Defamation

BKI complains that the headline and the story have defamed it. The use and meaning of the word “dump” conveys a “highly disparaging impression” of the firm, it says.

Defamation is a matter for the High Court and is not covered by the Press Code. However, Art. 4.2 of the Code does state that the press shall exercise care and consideration in matters involving dignity and reputation.

Boerner argues that it cannot be said that the use of the word “dumped” has damaged BKI’s reputation. He adds that in terms of the Press Code dignity and reputation only apply to private persons.

I agree with his first statement – because the reason for the withdrawal was not made public, it cannot follow that that reason for this was necessarily negative or malicious towards BKI. This is why I do not believe that the use of the word “dump” caused the law firm some serious, unnecessary harm.

However, the Code does not limit the clause about dignity and reputation (and also not the one on privacy) to private persons – it certainly also extends to public figures.

Finding

‘Dumped’ – headline

The use of the word “dump” in the headline was an assumption that was not necessarily based on facts. It also did not reflect the content of the story itself, which at most stated “dumped” an allegation. This is in breach of Art. 10.1 of the Press Code that says: “Headlines…shall give a reasonable reflection of the contents of the report…in question.”

‘Allegedly dumped’ – intro

The reporter assumed that the initiative for the parting of ways between BKI and Malema came from the former. This was not necessarily correct. This is in breach of Art. 2.1 of the Code: “The press shall take care to report news truthfully, accurately and fairly.”

Defamation

This part of the complaint is dismissed.

Sanction

Daily Sun is cautioned for using the word “dump” in the headline and the phrase “allegedly dumped” in the story.

The newspaper is directed to publish the following text on page 2:

The Press Ombudsman has cautioned Daily Sun for using the word “dump” in a headline and the phrase “allegedly dumped” in the story.

Brian Kahn Inc. (BKI) complained about a story on 20 February 2013, headlined Lawyers dump Malema! The story, written by Mpho Kobue, was about the withdrawal of Mr Julius Malema’s lawyers (BKI) from a case in which he opposed SARS’s application to declare him bankrupt and to sell off his assets to pay his debts.

Ombudsman Johan Retief said that Malema could have been dissatisfied with BKI’s services for whatever reason, in which case he would have “dumped” BKI. On the other hand, if the initiative for the termination of their relationship came from BKI, then the word “dump” may have been appropriate in the story.

“But how was Daily Sun to know who dumped whom?…Because the newspaper had no proof who took the initiative, it was not justified to choose the one alternative over the other. (This does not mean to say that BKI did not take the initiative – the point is that Daily Sun simply did not know that).

“Therefore: The use of the word ‘dump’ in the headline was an assumption that was not necessarily based on facts. It also did not reflect the content of the story itself, which at most said that the ‘dumped’ was an allegation,” Retief remarked.

Also, the story implied that BKI had alleged that it had dumped Malema – a statement that the law firm emphatically denied. This means that Kobue concluded or assumed that “withdrew” and “dumped” were synonymous, as indeed the newspaper argued. “But they are not synonymous – it depends on who took the initiative,” Retief said.

The Ombudsman dismissed the complaint that our story has tarnished BKI’s reputation and dignity. He argued that because the reason for the withdrawal was not made public, it cannot follow that that reason was necessarily negative or malicious towards BKI.

“This is why I do not believe that the use of the word ‘dump’ caused the law firm some serious, unnecessary harm,” Retief said.

Visit www.pressouncil.org.za for the full finding.

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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 [email protected].

Johan Retief

Press Ombudsman