Oscar Pistorius family & Anneliese Burgess vs. Rapport

This ruling is based on written submissions of spokesperson Ms Anneliese Burgess (for Oscar Pistorius, his family and for herself) and Mr Willem de Klerk (for Rapport).

COMPLAINT

The Pistorius family and Burgess complain about a story on page 3 (Rapport, 30 June 2013) headlined Vuurwa vir Oscar? ‘Parmantige’ Pistorius daag glo met lyfwagte op en is veeleisend oor aflewering van voertuig. On the front page, the headline (Oscar vry glo na nóg ‘n vuurwa – 3) was accompanied with a picture of him together with a red Audi R8.

This story was summarized on Rapport’s website, headlined Vuurwa vir Oscar.

Regarding the main story, the family’s main complaint is that it inaccurately alleged that Pistorius:

• visited an Audi dealership to buy an expensive and fast car (an Audi R8);
• was surrounded by bodyguards;
• was accompanied by a “beautiful” woman (insinuating that this woman may have been his girlfriend); and
• was “brash” and “demanding” at the dealership;

The family adds that the:

• journalist did not verify his information; and
• headlines, photograph and structure of the story were misleading.

Burgess complains that the:

• main story made her out as having deliberately lied to the reporter; and
• journalist published this information despite “facts supplied to the journalist”.

The online-story consisted of a few paragraphs that merely summarized the salient issues raised by the printed one. The headline, though, is different to that of the main story. I shall therefore limit myself in my finding to this difference only.

ANALYSIS

The main story, written by Jacques Steenkamp, reported allegations that the Olympic athlete and murder suspect Oscar Pistorius had been buying an expensive and high speed Audi R8 sports car – the cheapest of which reportedly cost R1.5-million and could reach a speed of 317km/h.

The main story

Complaint: The Pistorius family

Inaccurate statements

The story said that Oscar allegedly had bought an expensive and fast Audi R8; that he had been accompanied by bodyguards and by a beautiful woman; and that he was “brash” and “demanding” at the dealership.

The Pistorius family complains that these statements were false.

Burgess says that Pistorius went to the dealership to assist with the paperwork for a car purchased by his uncle Arnold, and also to trade in his own vehicle for a pre-owned sedan (not an Audi R8). She denies that he was accompanied by bodyguards and says that the “beautiful” female who accompanied him (insinuating that this woman was his girlfriend) was in fact his cousin (his sister accompanied him once).

No verification

The family complains that the journalist relied on anonymous sources and that he did not verify his information. Burgess says that Steenkamp did not attempt to find documentary proof of the alleged deal. She also asks why the reporter did not speak to the salesperson who processed the trade-in deal. Burgess notes that it was strange that the sources insisted on being treated anonymously when there could be no possible danger posed to them by openly stating the information they had claimed to have had.

Headlines, photograph, story’s structure

The front page contained a picture of a new Audi R8 sports car, with a picture of Pistorius superimposed on it.

The family complains that the headlines and this photograph were misleading and inaccurate, and argues that the structure of the story was such that it intended to cast doubt on Pistorius’s version of events. “The facts supplied by us, are inserted into the article in the form of an afterthought and are…almost used to cement the journalist’s version as fact by treating this information as secondary and ‘suspect’.”

I shall deal with the on-line headline later on.

Complaint: Anneliese Burgess

Spokesperson deliberately lying

The main story said that Burgess had changed her story. It reported that she had given Steenkamp some information, “but later” stated that she had misunderstood Pistorius’s uncle.

Burgess argues that this made her out as having deliberately lied to the reporter – which she denies. She says that this reportage cast aspersions on her professional integrity. She adds that Steenkamp used this statement to further cast doubt on the facts and clarifications provided by her. “There were never ‘two’ versions – there was only one continuous interaction aimed at getting the rights facts to the journalist in question.”

She says: “Steenkamp massages the facts through sneaky formulation so that (it) seems as if the Pistorius family, through Burgess, was trying to obfuscate the facts by her ‘changing her story’ halfway through the enquiry.”

Information ignored

Burgess complains that the journalist published his information despite “facts supplied to the journalist” (read: the denials, as outlined above). She adds that she declined to tell Steenkamp what model Oscar bought as he should have had the right to privacy.

In general, the complainants argue: “This sensational reporting does not serve the interests of the South African public, does not serve the course of justice nor allow for Oscar Pistorius to enjoy a fair trial.”

Rapport’s response

The newspaper’s version of events is that:

• its initial source obtained information from somebody at the dealership;
• Steenkamp then confirmed this information with two employees;
• the Audi dealership declined any formal comment;
• on the Friday prior to publication the reporter sent a list of questions to Burgess, who called him back to say that Pistorius had gone to the dealership to buy a vehicle for his uncle; she also said that she would speak to the family that evening and then revert with answers to the questions;
• in her written response, Burgess did not comment on Steenkamp’s statement that Pistorius had been to the dealership twice in one week, nor did she make any effort to explain why her first version had changed (she did admit that he had bought a “second-hand sedan” and not an R8);
• Steenkamp then replied to Burgess via email, asking her to explain the different versions. She telephonically explained that she had had misunderstood Pistorius’s uncle when he whispered to her over the telephone (she said that he was in a business meeting at the time); and
• Burgess then confirmed its information that Pistorius went to the dealership twice during that week – once to buy a second-hand vehicle, and also to assist his uncle with paperwork concerning the latter’s purchase of a car. “This was a third variation on Pistorius’ version…”

Rapport states that in deciding to publish it considered the following factors:

• The media have rightfully placed Pistorius under intense scrutiny (he was an internationally known athlete as well as a murder accused);
• His visits to the showroom was in itself newsworthy (as, in addition to the above, he has “a history of fast cars and reckless behaviour”);
• Its information was confirmed in all aspects, except for the model of the vehicle, his demeanour at the dealership, and whether or not he was accompanied by bodyguards;
• Pistorius’s conduct suggested that he was hardly trying to conduct a private transaction – the refusal by Burgess to disclose the model of the vehicle he bought “was therefore odd, and only served to strengthen Rapport’s trust in its information at the time”;
• Burgess merely denied that Pistorius was accompanied by bodyguards and did not attempt to explain who they were; and
• Burgess gave different versions to the newspaper at different times – when this happens, “the press may rightfully question the truth of the versions given, as Rapport did at the time. This was not an indictment of the spokesperson personally, but rather of the veracity of information given to her. What seemed like a constantly mutating version of events, undermined the credibility thereof”.

The publication concludes that its reportage in the matter was reasonable – the headline (of the main story) indicated the purchase of the vehicle as an uncertainty, the intro reported the information as an allegation, the family’s comments were recorded, its sourcing was properly described in the story, and the replies given by Burgess appeared in full.

However, Rapport says that it does not want to mislead its readers and states that it will publish a correction together with an apology if it is shown that its facts were incorrect. It also suggests text to this effect (if the information was indeed wrong).

Quo vadis?

Pistorius’s attorney (ramsaywebber) rejects this offer. The company says that the newspaper’s contention that its story was confirmed in all aspects except for the model of the vehicle, Pistorius’s demeanour at the dealership, and whether or not he was accompanied by bodyguards was disingenuous, as it formed the heart of the article. Ramsaywebber also argues that this reporting will have a “serious detrimental effect” on Pistorius’s trial (as it does not afford him “the possibility of a fair and unbiased trial”).

Normally, this office does not engage in investigations – its central question is if the newspaper was justified in its reportage at the time of publication.

However, I have made an exception in this case in the same spirit than that of the publication (that asked me to investigate and offered to publish a correction and apology, if necessary), which is to serve the public.

I have therefore asked Burgess to provide me with evidence, which she in any case offered to furnish this office with (in her complaint).

She provided me with the required information, and argues as follows: “Can we respectfully request that this information only be used in support of your ruling and that the detailed content thereof not be made public in any way. The same goes for the exact make of car bought. Oscar did and does not want the make of his car to become public knowledge…Oscar is constantly being followed by journalists and photographers and this car was intended to provide him with some anonymity.”

I shall therefore not disclose any information, save to say that I am satisfied that Pistorius did not buy an Audi R8, and that it was a used sedan which cost far less than R1.5-million (which, according to the story, was what the cheapest version of an Audi R8 cost). I am not an expert when it comes to cars, but I strongly suspect that the model that Pistorius bought would probably not be capable of reaching a speed of 317 km/h.

Burgess also sent me a document by a source who wants to go unnamed (“as we take our professionalism and client confidentiality very seriously and do not interact with the press on any matter relating to the private transactions or any client”).

Both the name and his/her position were disclosed to this office. While I shall not make known this data, I do need to state that I am satisfied that this person’s information is credible.

The source adds that Pistorius was:

• accompanied only by his brother Carl, and his sister Aimée – his (female) cousin dropped him off at the dealership on one occasion;
• not accompanied by anybody who could have been mistaken for a bodyguard; and
• never brash or demanding throughout his interaction with him/her – “In fact, the engagement was very low-key and he was friendly and polite throughout”.

The source also denies that s/he was aware that a journalist interviewed anyone at the Audi Centre, and categorically states that no R8 was viewed by, ordered or sold to Pistorius or to his uncle.

My considerations: The family’s complaint

Inaccurate statements

I shall throw some media ethical considerations into the mix here while discussing the salient issues, before coming to a final decision.

The allegations in question are that Pistorius visited an Audi dealership to buy an expensive and fast car, that he was surrounded by bodyguards, that he was accompanied by a “beautiful” woman (insinuating that this woman may have been his girlfriend), and that he was “brash” and “demanding” at the dealership.

In a very real sense his “buying” of an Audi R8 is the gist of the complaint.

Based on documentation at my disposal, I have little doubt that this allegation had no truth to it, and that the reporting was therefore unnecessarily harmful to Pistorius (unfair).

But this issue is more complicated. On June 18, 2010, in the matter between KZN Premier Dr Zweli Mkhize and the Sunday Tribune, I quoted the Press Code (now Section 2.3) that says: “Only what may reasonably be true, having regard to the sources of the news, may be presented as fact and such fact shall be published fairly with due regard to context and importance. Where a report is not based on facts or is founded on opinions, allegations, rumour or supposition, it shall be presented in such a manner as to indicate this clearly.”

I then stated: “The second sentence in this section of the Code is not a licence to publish allegations and rumours after you’ve put them to the accused people. The basic spirit of the code is to be truthful, accurate and fair. If newspapers and magazines were allowed to publish any allegations after they had obtained a denial from their subjects they would do huge harm in our society. Allegations are put to subjects if there is some substance to them.”

This view was endorsed by my predecessor.

In other words, while it is a sound journalistic principle to use the word “allegedly” whenever appropriate, the mere use of that word does not guarantee that a publication is in line with the spirit of the Press Code.

This leaves me with the question if the story’s use of the word “glo” (“allegedly”) kept it within the boundaries of the Press Code.

I believe that the sub-text of the story in dispute was indeed to portray the message that Pistorius had been “at it” again (read: reckless behaviour – speed and money). This is why:

• The story itself provided the context: “high octane lifestyle of weapons and sports cars…”; and
• The newspaper itself, in its reply to the complaint, states that Pistorius’s visit to the showroom was newsworthy as he had had “a history of fast cars and reckless behaviour”.

While Rapport must be commended for reporting the family’s denial of the allegations in question, the nature of the sub-text was such that it deliberately intended to leave the reader with little choice as to believe that Pistorius was “at it” again.

The question is how justified and fair this angle was.

This brings me to the sources that Rapport used. The real issue here is about their independence and credibility.

In its reply to the complaint, the newspaper says that it verified its information with two employees at the dealership. However – and this bothers me – the story said that the reporter spoke with sources “close to the dealership”. Why “close to”? This suggests that they were not first party sources. At the same time, the story also referred to eye-witnesses who reportedly witnessed both of Pistorius’s visits. This is strange, as it is highly improbable that clients would have witnessed both occasions. This leads me to believe that these “eye-witnesses” were actually employees – which, in turn, makes it even more bizarre for Steenkamp to have said that they were “close to” the dealership.

I therefore asked the newspaper for clarity on this matter and if it would be prepared to unveil the identities of its sources to me – on condition of anonymity, of course – so that I can decide for myself how independent and credible they were. (I have received confidential information from the complainant – that the newspaper for all intents and purposes asked me to do – and it would only have been fair to give the publication a chance to do the same.)

However, de Klerk informed me that his client thinks that my request was inappropriate and extra-ordinary and that the mere fact of my initiative put the publication at a disadvantage.

I respectfully disagree with this argument, of course – this office has on numerous occasions requested confidential information to enable it to come to responsible decisions. The intention is not to disadvantage, but rather to empower the publication to put forward a more solid defence.

Be that as it may, I respect the newspaper’s decision to keep its sources confidential and assure all and sundry that this situation will not influence my decision in any way (as feared by the publication).

In the end, I believe that, while Burgess’s source was correct regarding the main complaint, it is reasonable for me to accept the rest of this source’s information (that the women were in fact his sister and cousin, that his brother was the “bodyguard”, and that his conduct was impeccable) over that of the newspaper’s sources.

I now need to weigh up two opposing matters:

• How justified was the newspaper in reporting all of these allegations in the way it did?; and
• How fair was this reportage to Pistorius?

Firstly, while Rapport’s sources did provide Steenkamp with false information, I accept that the reporter had no reason to distrust his data at the time. Why would he? The dealership would not comment, and he certainly could not reasonably have expected Burgess to agree with the allegations.

In this instance, Judge J.A. Hefer ruling in the matter of National Media Ltd. and Others vs. Bogoshi (29 September 1998) is relevant.

Hefer said: “…the publication in the press of false defamatory allegations of fact will not be regarded as unlawful if, upon a consideration of all the circumstances of the case, it is found to have been reasonable to publish the particular facts in the particular way and at the particular time. In considering the reasonableness of the publication account must obviously be taken of the nature, extent and tone of the allegations. We know, for instance, that greater latitude is usually allowed in respect of political discussion…and that the tone in which a newspaper article is written, or the way in which it is presented, sometimes provides additional, and perhaps unnecessary, sting. What will also figure prominently, is the nature of the information on which the allegations were based and the reliability of their source, as well as the steps taken to verify the information. Ultimately there can be no justification for the publication of untruths, and members of the press should not be left with the impression that they have a licence to lower the standards of care which must be observed before defamatory matter is published in a newspaper…a high degree of circumspection must be expected of editors and their editorial staff on account of the nature of their occupation; particularly, I would add, in light of the powerful position of the press and the credibility which it enjoys amongst large sections of the community.” (emphasis added)

Given the above, I do believe that Rapport was justified in publishing the allegations as allegations because of the information at its disposal at the time of publication and the circumstances surrounding the reporter’s newsgathering.

However, I also think that the reportage about Pistorius was unfair to him as the main allegation certainly proved to be false. This, retrospectively, put some question marks behind the credibility of the information provided to Steenkamp by his sources.

On this basis I am willing to accept the word of Burgess’s source above those of the newspaper with regards to the rest of the matters in contention (bodyguards, woman, conduct) – as stated before.

This means that, ultimately, I am left with a conclusion that may look contradictory, but in fact is not – the publication of the allegations was justified at the time of going to press, which later proved to have been false and therefore unfair to Pistorius.

In other words: The report was misleading – but not deliberately so.

I shall not go so far as to say that he would not enjoy a fair trial as a result of this story – that would indeed (unjustifiably) question the integrity of our judicial system.

No verification

This part of the complaint does not have a leg to stand on. Yes, Rapport mainly used two anonymous sources, but it also communicated with Burgess on several occasions. And yes, Steenkamp did try to get information from the dealership (who refused to comment, as reported – which I can easily believe, based on the documentation at my disposal).

The argument by Burgess that it was strange that the sources insisted on being treated anonymously when there could be no possible danger posed to them by openly stating the information they had claimed to have had, also does not hold water – the dealership’s documentation directed at this office shows that employees should not disclose the kind of information that Rapport was interested in.

Headlines; photograph; story’s structure

There were two headlines. The one on the front page read: Oscar vry glo na nóg ‘n vuurwa – 3). This was accompanied by a picture of Pistorius superimposed on a red Audi R8. The headline on page 3 said: Vuurwa vir Oscar? ‘Parmantige’ Pistorius daag glo met lyfwagte op en is veeleisend oor aflewering van voertuig.

Section 10.1 of the Press Code stipulates that headlines shall give a reasonable reflection of the contents of the report in question. Both headlines did exactly that. However, this office has also on numerous occasions also said that, if the story was inaccurate and/or unfair and the headline(s) reflected that, the latter would also be inaccurate and/or unfair.

While I do believe that the reportage was both justified and unfair, it follows that the same goes for the headlines, the message that the photograph carried and the structure of the story.

My considerations: Burgess’s complaint

Spokesperson deliberately lying

The story did not state or imply that she had deliberately lied – it merely reported what actually happened. I therefore do not believe that the reportage caused Burgess unnecessary harm.

Information ignored

I am satisfied that the reporter did not ignore any relevant information that the spokesperson supplied him with.

The online version

The relevant headline stated the (inaccurate and unfair) allegation as fact, which is not in accordance with the Press Code.

FINDING

The family’s complaint

Inaccurate statements

The false allegation that Pistorius bought an expensive and fast Audi R8 has caused him unnecessary harm because it unfairly boosted his public image as someone who has “a history of fast cars and reckless behaviour” (as stated by Rapport itself). His public image was also unfairly tarnished by the allegations that he had been accompanied by bodyguards and a beautiful woman (insinuating that this may have been his girlfriend), and that he was “brash” and “demanding” at the dealership.

This is in breach of Sect. 2.1 of the Press Code that says: “The press shall take care to report news…fairly.”

No verification

This part of the complaint is dismissed.

Headlines; photograph; story’s structure

This part of Rapport’s reportage was unfair to Pistorius and in breach of Section 2.1 of the Press Code.

Burgess’s complaint

Spokesperson deliberately lying

This part of the complaint is dismissed.

Information ignored

This part of the complaint is dismissed.

The online version

The headline did not reflect the content of the story as it stated an allegation as fact, neither was it fair to Pistorius. This is in breach of the following sections of the Press Code:

• 10.1 that says: “Headlines…shall give a reasonable reflection of the contents of the report…in question”; and
• 2.1: “The press shall take care to report news…accurately and fairly”.

SANCTION

I asked myself the following question: How fair would it be for this office to ask for an apology if the newspaper was justified to publish its information at the time of going to press? If new information, only at a later stage, proved that the initial data was false and therefore caused Pistorius unnecessary harm?

My considerations brought me to come to the following sanction:

Rapport is directed to:

• correct the false information that Pistorius bought an expensive and speedy Audi R8, that he was accompanied by bodyguards and by a beautiful woman (insinuating that she may have been his girlfriend), and that he misbehaved at the dealership; and
• apologise to him in so far as these issues later proved to be inaccurate, unfairly causing him harm, and for stating the first allegation as fact in the heading of its on-line edition.

The newspaper is asked to publish:

• a kicker on the front page that contains the word “apologises” or “apology”, with a reference to the story on page three; and
• the text below, on page 3.

Rapport vra die Olimpiese atleet Oscar Pistorius om verskoning omdat ons rapportering van die bewering dat hy ‘n duur en vinnige Audi R8 sportmotor gekoop het, hom onnodige skade berokken het (‘n bewering wat later as verkeerd bewys is) – en vir die publisering van opskrifte en ‘n foto van so ‘n motor wat bogenoemde skade vererger het.

Ons vra ook om verskoning dat ons gerapporteer het dat lyfwagte hom glo vergesel het, dat daar ‘n pragtige vrou aan sy sy was (met die verkeerde insinuasie dat dié vrou dalk sy meisie kon wees), en dat hy “parmantig” en “veeleisend” by die handelaar opgetree het.

Nadat ons ‘n storie op 30 Junie gepubliseer het onder die opskrif Vuurwa vir Oscar? het die familie die Persombudsman van getuienis voorsien wat getoon het dat ons inligting oor die Audi R8 verkeerd was.

Die Ombudsman, Johan Retief, het gesê dat ons geregverdig was om die inligting tot ons beskikking te publiseer, maar dat dit later geblyk het dat dié data verkeerd was – en dat dit Pistorius onnodige skade berokken het.

Hy het gesê dat Pistorius in werklikheid ‘n gebruikte motor aangeskaf het wat baie minder as R1.5-miljoen gekos het en dat dié motor waarskynlik nie ‘n snelheid van 317 km/h kon haal nie (soos deur ons gerapporteer).

Hy het egter die idee verwerp dat ons verslaggewing ‘n onregverdige verhoor tot gevolg sal hê (Pistorius staan tereg op aanklag van moord op sy voormalige meisie), soos geargumenteer deur sy prokureur – “dit sou inderdaad die integriteit van ons howe bevraagteken het”.

Hy het enkele aspekte van die klag van die hand gewys.

Besoek www.presscouncil.org.za vir die volledige bevinding.

End of text

Here is a translation:

Rapport apologises to Olympic athlete Oscar Pistorius for causing him unnecessary harm by reporting the allegation that he had bought an expensive and fast Audi R8 sports car (which later proved to be false) – and for publishing headlines and a picture of such a car that served to aggravate the above-mentioned harm.

We also apologise for reporting that he allegedly had been accompanied by bodyguards and a beautiful woman (wrongly insinuating that this may have been his girlfriend), and that he had been “brash” and “demanding” at the dealership.

After we published a story on June 30, headlined Vuurwa vir Oscar? the family supplied the Press Ombudsman with evidence that showed that our information regarding the Audi R8 was wrong.

The Ombudsman, Johan Retief, said that we were justified to publish the information at our disposal, but that it later became clear that this data was wrong – and that it has caused Pistorius unnecessary harm.

He said that Pistorius in fact had purchased a used car that cost much less than R1.5 million, and that this car would probably not have been able to reach a speed of 317 km/h (as reported by us).

However, he declined to accept that our coverage would result in an unfair trial (Pistorius stands accused of murdering his former girlfriend), as argued by his attorney – “that would indeed question the integrity of our judicial system”.

He dismissed some parts of the complaint.

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

End of text

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