Appeal Decision: Cindy van Vuuren vs. Daller

SUMMARY

The headline to the story in dispute read, Tyd van wonderwerke nie verby (published on 23 August 2013).

This ruling by the Chair of the Appeals Panel, Judge Bernard Ngoepe, was based on the Press Code that was in effect before 30 September 2022.

The story said that one of Groblersdal’s beloved traffic officers, Freddie van Dyk, was seriously ill with cancer. A fundraising event was reportedly planned by Ruby River Resort to assist him with future expenses regarding his illness. The Daller also appealed to the public to make contributions towards this fund.

Cindy van Vuuren, who was involved in a fundraising campaign, complained that the newspaper had:

• disclosed the detail of the person’s illness without the necessary consent;
• omitted to state the time of the function; and
• changed a spit braai to a braai.

The Ombud upheld the complaint about the disclosure of the nature of Van Dyk’s illness. He inter alia said:

• he had no evidence that the newspaper had obtained the necessary permission to publish the nature of his illness – which meant that it had invaded his privacy; and
• the newspaper’s argument that people might have thought that van Dyk had AIDS if the story did not mention his cancer was flawed – the same publication said that his cancer was “common knowledge”.

The Daller was severely reprimanded for not exercising care and consideration when disclosing the nature of Van Dyk’s illness and directed to apologise for the unnecessary harm that that had caused him and his family.

The newspaper then applied for leave to appeal.

Judge Ngoepe endorsed the Ombud’s ruling and dismissed the application. He opined that a person’s illness was a very private matter – and in this case, the family did not want to disclose the nature of Van Dyk’s illness. He called this a “serious breach of that person’s right to privacy”. He added that there was no justification for the assumption that it was common knowledge that he had cancer.

The judge also mentioned that, although Van Dyk had since died, the ruling and the sanction stood because that was to protect his family as well.

THE RULING ITSELF

Daller                                                                                      Applicant

Vs

Cindy van Vuuren                                                             Respondent

Matter Number 255/2013

Decision: Application for Leave to Appeal to the Appeals Panel

1.The applicant, Daller newspaper, wants leave to appeal the Ruling and the sanction by the Ombudsman, handed down on 4 October 2013.

2. The Ruling followed a complaint lodged by the respondent, Ms Cindy van Vuuren, against the applicant.  Briefly, the complaint was that the paper had disclosed, against express instructions by the family of one Van Dyk and the respondent, the nature of Van Dyk’s illness.  The family had asked the paper to advertise a “braai” occasion to raise funds for Mr Van Dyk’s treatment.  Contrary to the instructions, the applicant disclosed the nature of the illness, stating that he was suffering from terminal cancer.  This upset the family and the respondent who had assisted the family by arranging the placement of the advertisement.  The respondent therefore lodged a complaint with the South African Press Council.  The second complaint was that the applicant did not mention the time of the occasion and had changed it the nature of the occasion.

3. The Ombudsman upheld the first complaint relating to the disclosure of the illness, but dismissed the second complaint, namely, that the time was not given in the newspaper and that the nature of the occasion was changed.  The sanction imposed by the Ombudsman was a severe reprimand.  He also ordered an apology to the family.  He then crafted a text to be published by the newspaper.

4. I endorse the Ombudsman’s Ruling for the reasons he has given as also the sanction he imposed.  It is not in dispute that the respondent and the family of the patient did not want the newspaper to disclose the nature of the illness.  In its application for leave to appeal, the applicant contends that it was in any event commonly known that Mr Van Dyk was suffering from cancer. There is no justification for such an assumption; no factual basis was laid for it.  Applicant also argues that once a person says that they suffer from a terminal illness and solicit funds from the public, it would be unlikely that they would want to keep the nature of their illness a secret.  This is not a good argument, particularly as the family and respondent had specifically requested that the nature of the illness should not be disclosed.

5. A person’s illness is a very private matter.  Disclosing it without their consent, let alone against their specific instructions to the contrary, amounts to a serious breach of that person’s right of privacy.  Article 4.1 of the South African Press Code reads: “The press shall exercise care and consideration in matters involving the private lives and concerns of individuals.  The right to privacy may be overridden by a legitimate public interest.”   The issue of legitimate public interest does not even remotely arise in the present case.

6.  Finally, it should be mentioned that, although Mr Van Dyk has since died, the Ruling and the sanction stand because that was to protect his family as well. In any case, by the time he died, the complaint was already before the Press Council; moreover, he was not personally the complainant.

7. For the reasons I have given above, as also those by the Ombudsman, I hold that the applicant has no reasonable prospects of success before the Appeals Panel; the application for leave to appeal is therefore refused.

Dated: 9 June 2014

Judge B M Ngoepe, Chair, Appeals Panel