Appeal Decision of the Appeals Panel: Kasrils vs The Sunday Times
Background
1. This ruling is based on written submissions by Mr Ronnie Kasrils (Appellant), former Deputy Minister of Defence, Minister of Water Affairs & Forestry, and Minister for Intelligence Services; and Ms Susan Smuts (Respondent), Legal Editor of the Sunday Times; as well as on a hearing that was held on 13 March 2015 in Johannesburg.
2. The appellant, Kasrils, was given leave to appeal the Ruling of the Ombudsman, dated 28 October, 2014. The Ruling was based on complaints by Kasrils against a front-page article by the Sunday Times, published on 7 September 2014.
Kasrils complained, about the Sunday Times poster, Spy tapes expose Kasrils, the headline, Spy tapes ‘illegal’ and expose Kasrils, and the content of the report.
3. The Press Ombudsman, Johan Retief, dismissed Kasrils’ complaint about the content of the report.
4. However, he found the Sunday Times headline was in breach of Sect. 10.1 of the Press Code that reads: “Headlines…shall give a reasonable reflection of the contents of the report…in question.”
5. He further found that Kasrils’s reputation had been damaged unnecessarily in breach of Section 4.7 of the Press Code: “The press shall exercise care and consideration involving…reputation…” but he dismissed a complaint by Kasrils about malice and sensationalism.
Sunday Times was directed to:
Ø apologise to Kasrils for saying as fact in the headlines that the “spy tapes” had “exposed” him (as the mastermind behind the manipulation of the NPA), thereby inaccurately, unfairly and unnecessarily harming his reputation;
Ø retract the mastermind statement; and
Ø publish the apology and retraction on its front page, above the fold.
7. Retief made no finding on the poster published by the Sunday Times and whether it had breached Clause 10.2 of the Press Code: “Posters shall not mislead the public and shall give a reasonable reflection of the contents of the reports in question.”
8. However, the content of the posters is the same as that in the headline. The Ombudsman had his own reasons why he did not order the apology to be put in the street posters; namely, for economic reasons and that he had consistently refused this. Clearly, therefore, he had found the content of the poster to be as offensive as the headline and to be in contravention of article 10.1, otherwise his mind would not have engaged the issue of sanction in relation to the posters.
In any event, the question of whether or not what appeared in the posters fell foul of the code and was harmful to the dignity and reputation of the appellant was intensively argued before us.
9. The Sunday Times appealed the ruling of the Press Ombudsman.
Kasrils cross appealed saying the apology needed to be published on the newspaper’s posters as well as on its front page.
10. The Chair of the Appeals Panel of the Press Council of South Africa, Mr Justice Bernard Ngoepe, on 15 December 2014; dismissed the application by the Sunday Times.
11. However, he granted the application by Kasrils to appeal against the Ombudsman’s Ruling not to order that the publication of the apology and retraction be on the street posters.
12. Judge Ngoepe said: “Where, as the Ombudsman has found, the headline displayed on street posters is offensive but the content of the article is not, and an apology is ordered in relation to the offensive headline, shouldn’t the apology likewise be carried on street posters? This is the question raised by the application for leave to cross-appeal.
“The Sunday Times submits that to order that the correction be carried on street posters would be unprecedented. The logic of this argument is that, no matter how offensive and how widely the posters were distributed, a complainant should just be content that an apology is placed on say the first page.
“On the face of it, the remedy granted to redress the harm is disproportionate to the magnitude of the harm caused by the posters; after all, it is not in dispute that the posters were widely distributed. For this reason, I would grant leave to Mr Kasrils to appeal to the Appeals Panel; there are reasonable prospects of him succeeding in causing the apology to likewise be on street posters, alternatively, to obtain some other measure to better address the harmful publicity caused by street posters.”
13. The Appeal Panel Hearing focused narrowly on this issue; i.e. should the apology by the Sunday Times be published on its posters as well as on its front page, or was there some other appropriate remedy available?
The Hearing
Kasrils:
1. Kasrils said he remained aggrieved by the harm to his honour, dignity and reputation caused by the Sunday Times “offensive” street posters. He submitted:
Ø that many people saw such posters without buying or reading the newspaper and would form a negative and damaging opinion of him, affecting his reputation;
Ø the Press Code was clear that Posters should not mislead the public and should give a reasonable reflection of the reported story; and
Ø that sanctions imposed by the Press Council should be appropriate relative to the seriousness of the breach of the Press Code.
2. Kasrils said the words on the poster, “Spy Tapes Expose Kasrils” were “highly loaded”. The word “expose” has a clear and strong inference of guilt and attempts at concealment of the truth by devious means.
The Oxford Dictionary provided the phrase, ‘He has been exposed as a liar’ to illustrate the meaning.
Linking the three words in the poster – “Spy Tapes” and “expose” with his name created a “deliberate and extremely disturbing connotation” and “unnecessarily and irresponsibly” damaged his reputation.
3. He felt The Sunday Times should not be permitted to escape with impunity, but should make amends by way of a poster and the front page apology ordered by the Ombudsman.
“Countless people see the street posters …without buying the newspaper or reading the article and are influenced by the posters. Driving along the road, or walking along the street, you have no option – the posters hit you in the face, even if you do not buy the newspaper.
“It is reasonable and correct that the poster should highlight the Sunday Times apology. This will serve to encourage people to buy the newspaper where they will be able to read the full apology and retraction.
“It is (also) necessary that members of the public who saw the original poster, and who might not buy the newspaper, also see the new poster with the apology/retraction so they become aware that the original allegation was untrue.
“I would be satisfied for the poster to state: ‘Spy Tapes: We Apologise to Kasrils’,” he said.
The Sunday Times:
1. The Sunday Times submitted that:
Ø the Complaints Procedure of the Press Council did not provide for the sanction requested by Kasrils – i.e. an apology on the poster;
Ø no damage to Kasrils’ reputation had been caused by the poster;
Ø it would be a punitive sanction, equal to a space fine, to order an apology on a poster; and
Ø it would be contrary to previous rulings by the Ombudsman.
2. It argued that sanctions that the Ombudsman or the Appeals Panel could make were detailed in section 7 of the Complaints Procedure of the Press Council; and that, in addition, in making a sanction order the Ombudsman or Appeals Panel had to apply the hierarchy of sanctions contained in section 8 of the Complaints Procedure.
3. They held that, although the hierarchy of sanctions contains a variety of different sanctions, it does not provide for the publication of an apology on a poster; and that it was mandatory for the Ombudsman or the Appeals Panel to apply, and not to go beyond, the provisions of the defined hierarchy of sanctions.
“The reason for the implementation of the hierarchy was to create certainty and consistency in the handling of matters before the Ombudsman. As the Complaints Procedure does not authorize the Ombudsman or the Appeal Panel to order the publication of an apology on a poster, it is submitted that the Appeal Panel does not have the power to make such an order.
“We submit that the publication of a front page, above-the-fold apology, which has already been ordered by the Ombudsman is sufficient to remedy the harm done to Kasrils by the original publication. By contrast, placing the apology on street posters serves no restorative purpose and is punitive.”
4. The Sunday Times disputed that damage had been caused to Kasrils’ reputation by the posters. “Members of the public who read the posters but did not read the article would not have been able to draw any conclusions from the posters which were damaging to Kasrils’ reputation.
“It would have been impossible to glean from the words on the posters, i.e. ‘Spy Tapes expose Kasrils’, exactly what allegations the article contained. An ordinary reasonable reader would only have been in a position to conclude that the article which was being advertised in the poster was about Kasrils and an unidentified link between Kasrils and the spy tapes.
“However, the specific allegations regarding Kasrils and his relationship to the spy tapes were not identified in the poster…there was no reference to unlawful activity in the posters.
“The poster accurately conveyed the general subject matter of the article…without making any specific allegations. It is only upon purchasing the newspaper and reviewing the article that readers would have been informed about the specific allegations against Kasrils.
“A poster is meant to advertise the content of the newspaper but does not convey the full story and members of the public are well aware of this fact.
“The reasonable reader of a poster would have understood that the facts about the link between Kasrils and the spy tapes would be contained in the newspaper and that in order to obtain any details about the story they would have to purchase the newspaper and review the content of the article.
“The poster could not have harmed Kasrils’ reputation because it did not contain any allegations about him; it merely indicated that there was a connection between him and the spy tapes. Furthermore, a reasonable reader of the poster would have understood that the poster was not in itself the full story.”
5. The Sunday Times held that the sanction requested by Kasrils was unwarranted and that the restorative and corrective purpose of an apology weighed strongly against the use of posters to convey an apology.
“While it is possible to advertise an article in general terms, such as those used in the poster, it is not possible to retract a statement or issue an apology in general terms. Indeed, it is difficult to imagine how a meaningful apology on a street poster would be worded.
“Just as the original poster could only be understood once the facts contained in the article itself were considered, any apology contained on a poster will only make sense with reference to a complete apology in the newspaper itself.
“However, if the apology on the poster is meant to be addressed to individuals who never read the newspaper then the apology must also be formulated with the assumption that the newspaper will not be read. It is difficult to conceive of how such an apology should be framed.”
It said the sanction requested by Kasrils would be punitive because it would either: limit the advertising space available to the respondent by forcing it to use posters that would have been used for advertising to publish the (ineffective) apology; or it would force the respondent to incur additional costs to print a larger number of posters than would ordinarily have been printed.
“Space sanctions are reserved for serious misconduct such as allowing commercial, political or non-professional considerations to influence reporting; or the publication of child pornography. Even a space sanction would be restricted to space within the newspaper itself ranging from a few centimetres to a full page… the breaches of the Press Code in this matter do not amount to serious misconduct.”
6. Finally, the Sunday Times submitted that to order an apology on a poster was inconsistent with previous rulings of the Press Ombudsman that relate to posters, and gave examples to support this submission.
The Appeals Panel:
1. The chairman of the Appeals Panel of the Press Council, Judge Bernard Ngoepe, acting in terms of Clause 4.3 of the Complaints Procedure, appointed a panel consisting of himself and four other members, comprising three public members (Dr Simphiwe Sesanti, Ms Carol Mohlala, Mr Peter Mann) and one press member (Mr Mahmood Sanglay) of the Panel of Adjudicators.
2. After hearing both parties, and after considering the novelty of the issues, the Chairperson of the Appeals Panel acceded to the Sunday Times request for legal representation. Accordingly the Sunday Times was represented by Mrs Susan Smuts, its Legal Editor, assisted by attorneys Webber Wentzel Bowens.
3. Kasrils was assisted by the Public Advocate of the Press Council, Mrs Latiefa Mobara. It was upon this consideration that the Chairperson of the Appeals Panel allowed legal representation to the Sunday Times.
4. The Appeals Panel hearing was conducted on the 13th March, 2015.
Can the Appeals Panel order an apology on a poster?
1. The respondent conceded, correctly, that we have jurisdiction to adjudicate over posters but contends that we have no power to order the publication of an apology on street posters. We do not agree. The Appeals Panel does not accept the contention of The Sunday Times that it lacks the legal competency to order an apology to be published on a poster.
2. The Sunday Times correctly refers to Section 7 and Section 8 of the Complaints Procedure of the Press Council in its submission.
Relevant clauses of Section 7 read:
7.2. If a finding is made against a member of PMSA or a publication that has voluntarily become subject to the jurisdiction of the Ombudsman, the Ombudsman, the Adjudication Panel, or the Appeals Panel, as the case may be, may make any one or more of the following orders against the proprietor of the publication:
7.2.1. Caution or reprimand the publication;
7.2.2. Direct that a correction, retraction or explanation and, where appropriate, an apology and/or the findings of the Ombudsman, the Adjudication Panel, or the Appeals Panel be published by the respondent in such manner as they may determine. (Our emphasis)
7.2.3. Order that a complainant’s reply to a published article, comment or letter be published by the publication;
7.2.4. Make any supplementary or ancillary orders or issue directives that are considered necessary for carrying into effect the orders or directives made in terms of this clause and, more particularly, issue directives as to the publication of the findings of the Ombudsman, the Adjudication Panel, or the Appeals Panel. (Our emphasis)
3. The Appeals Panel holds the view that the failure of the hierarchy of sanctions in Section 8 of the Complaints Procedure to provide for an apology on a poster is not the fatal flaw that The Sunday Times contends.
4. We agree with their submission that the hierarchy of sanctions was introduced to create certainty and consistency in the handling of matters before the Ombudsman and the Appeals Panel, but the mediation and arbitration function of the Press Council and its associated structures, including the Press Appeals Panel is dynamic and ever changing.
5. The passages we have emphasised in Section 7 of the Complaints Procedure (above) provide ample scope for us to go beyond the confines of the hierarchy of sanctions as we consider matters before us.
The powers given to the Panel under article 7.2.2 of the Complaints Procedures are wide (see the emphasis above). These powers cannot, as argued by the respondent, be taken away by the drafters’ failure in the hierarchy of sanctions to refer to publication of say apology in posters.
The article dealing with the hierarchy of sanctions, is a guide, whereas article 7.2.2 is an empowering provision. The power so expressly and widely conferred cannot be taken away by the omission referred to above.
Respondent’s interpretation is also problematic as it leads to a conflict between article 7.2.2 and 8. An article should not be clothed with an interpretation which would lead to it being in conflict with another; one should rather strive for an available harmonious interpretation.
6. It is a well-known principle of the Press Ombudsman and the Appeals mechanism, including the Press Appeals Panel, that an apology or correction should be made with equal prominence to where the offence was committed.
There should be something wrong with an argument which says the redress given for a severed arm should be the same as that given for a lost finger. Fairness requires that a redress be commensurate as far as possible with the degree of harm; this is plain common sense.
Publication of an apology in a newspaper, even on a front page, would be grossly inadequate with the prominence given in the posters which were widely distributed.
7. There is a further difficulty with the respondent’s proposition. The introduction of the Press Code was a mechanism for self-regulation; presumably effective self-regulation, as opposed to mere lip service. To argue, as the respondent does, that the Ombudsman or Panel have no power to order publication of an apology on the posters even where the offending statement was widely distributed on the street posters, would amount to lip service to self-regulation because victims would be denied redress commensurate with the harm done. The credibility of the self-regulation mechanism would be seriously undermined, and public confidence in the system would wane.
8. It appears equitable that if the breach of the Press Code was made on a poster, the correction of such breach should also be made on the poster. This would allow all who saw the breach to see its resolution.
Was the poster a breach of the Press Code?
1. Section 10.2 of the Press Code says that “Posters shall not mislead the public and shall give a reasonable reflection of the contents of the reports in question.”
2. Section 10.1 of the Press Code says that “Headlines and captions to pictures shall give a reasonable reflection of the contents of the report or picture in question.”
3. The Press Ombudsman ruled that The Sunday Times headlines as they referred to Kasrils breached the Press Code, and the Chairman of the Appeals Panel upheld this ruling when he dismissed the appeal against it by the Sunday Times.
4. The Press Ombudsman did not make a finding on the poster.
5. The Appeals Panel believes that the poster breached Section 10.2 of the Press Code.
6. We note, further, that Section 10.2 contains the additional injunction that “Posters shall not mislead the public”.
7. The poster, Spy tapes expose Kasrils, misleads the public.
8. We reject the Sunday Times submission that this statement does not damage Kasrils’ reputation and dignity.
9. We agree with Kasrils that the poster created a “deliberate and extremely disturbing connotation” and “unnecessarily and irresponsibly” damaged his reputation.
10. We note that The Sunday Times presented the poster as fact, not allegation – ignoring conventions such as using quotation marks to indicate that the poster was an allegation made by a third party.
11. We also considered that Kasrils as a public figure (albeit retired) is subject to more robust criticism than those who do not choose to live in the public eye. However, we could not conclude that this excused the damage caused to him.
Restorative or punitive sanction:
1. The Appeals Panel disagrees with the Sunday Times submission that for us to order an apology on a poster would be a punitive sanction, equivalent to a space fine.
2. This is a restorative sanction that demands the breach is corrected with equal prominence.
Precedent:
1. While we recognise that publishing an apology in the posters has not been imposed before, we do not believe that directing the respondent to do so would necessarily create a precedent for all cases. Each case would depend on its own facts and circumstances. In any case, creating a precedent that an apology can never be made in a poster would in itself be problematic; it could, for example, lead to impunity.
2. In the present case the issue of spy tapes had widely been in the media and the context well known. Importantly, while we have already acknowledged that Mr Kasrils was, and perhaps still is, a public figure, to state wrongly and as a fact that a former Minister of Intelligence was “exposed” by the “spy tapes” in the manner we have explained, makes the case unique.
3. To construe this as giving favourable treatment to Mr Kasrils would amount to a serious misunderstanding of the facts of the case.
The Ruling of the Appeals Panel
1. The appeal succeeds, and the Ombudsman’s Ruling not to order the publication of the apology in the posters is set aside.
2. We order The Sunday Times, in its next available edition, to publish a poster apologising to Kasrils.
Such apology must include the words: “Spy Tapes” and “apology” or “apologise” as well as the words “to Kasrils”.
In terms of our procedure, The Sunday Times can write the apology itself and refer it to the Press Appeals Panel for approval. We would recommend words similar to
“Spy Tapes – we apologise to Kasrils”.
3. We order The Sunday Times, in addition, to publish the front page, above-the-fold apology as ordered by the Press Ombudsman on the same day/in the same editions of the newspaper as the poster apology.
4. We order that the same number of posters as those that carried the words, Spy Tapes expose Kasrils, are printed in the normal Sunday Times poster format – carrying the masthead of the newspaper.
5. We order that the distribution of the apology poster is the same as the distribution of the offending poster and that it is displayed with equal prominence.
Appeals Panel:
Judge Bernard Ngoepe Chairman
Mr Mahmood Sanglay Press Member
Dr Simphiwe Sesanti Public Member
Ms Carol Mohlala Public Member
Mr Peter Mann Public Member
