Jonathan Dean vs. Sunday Times
This ruling is based on the written submissions of Mr Jonathan Dean and those of Susan Smuts, legal editor of the Sunday Times newspaper.
Complaint
Dean is complaining about three pictures and the report on the front page of the newspaper on 19 April 2015, with a story headlined Kill thy neighbour: Alex attack brings home SA’s shame – Mozambican murdered a day after pledge to curb xenophobic violence.
He complains that the pictures published of Mr Emmanuel Sithole being murdered:
· were obscene, indecent and abusive of the prevailing moral climate;
· heightened fear about xenophobic violence and constituted incitement of violence; and
· violated Sithole and his family’s dignity.
Dean also complains about the actions of the reporters. He says they have:
· obtained the pictures and the story in a deceitful way; and
· allowed the sequence of events to play themselves out in order to gather the story.
He complains that the story was unbalanced and that it was “misaligned” with the photographs.
The report, pictures
The story’s headline and sub-headline adequately described what the story was about. The alleged murder took place in Alexandra, Johannesburg.
The main picture showed a man with a knife, held up high above his head, about to strike Sithole with the deadly weapon. In the second picture, three men stood around the stabbed man, who was lying on the ground. The last photograph depicted the victim clearly suffering much pain.
The caption to these pictures read: “MOVING IN FOR THE KILL: After being stalked down a street, taunted and hit with a wrench, Emmanuel Sithole is cornered by his attackers, stabbed in the heart and left to die on a rubbish-strewn Alexandra street early yesterday morning. He was from Mozambique.”
The arguments
The pictures:
Obscene, etc.
| Section 2.7 of the Press Code should be considered. It reads: “[P]hotographs…relating to indecency or obscenity shall be presented with due sensitivity to the prevailing moral climate. A visual presentation of explicit sex shall not be published, unless public interest dictates otherwise.” |
Dean complains that the published pictures were in breach of this section of the Code.
Smuts replies that the photographs reflect the brutal reality of what has transpired. “We are a newspaper and our main work is to reflect events and developments in our society. It is not to shield people from unpalatable truths.”
She asks: “With respect, what is this prevailing moral climate? One that turns a blind eye to murder? One that demands sugar coating to the brutal reality that claimed Mr Sithole’s life?”
My considerations
Given its sexual context, I believe Section 2.7 is not relevant in this instance.
Heightening fear, inciting violence
| Section 5.2: “The press has the right and indeed the duty to report and comment on all matters of legitimate public interest. This right and duty must, however, be balanced against the obligation not to publish material that amounts to…incitement of imminent violence or advocacy of hatred that is based on race, ethnicity, gender or religion, and constitutes incitement to cause harm.” |
Dean says that the pictures have:
· heightened fear about xenophobic violence;
· constituted incitement of violence, particularly amongst nationals from Mozambique (and other foreigners) against South African citizens; and
· fuelled violence perpetrated against foreign nationals.
The legal editor denies these claims, noting that Dean makes no argument to support his allegations. “The photographs record what transpired. They do nothing beyond this.”
My considerations
Firstly, if the pictures have heightened fear about xenophobic attacks, I believe that the newspaper has done the public a good service – people should be informed, and scared, of such attacks.
Secondly, if it is true that the photographs have incited violence of any kind, then no picture of any violent scene (wars, Marikana, etc.) may ever be published.
Violating dignity
| Section 4.7: “The press shall exercise care and consideration in matters involving dignity and reputation. The dignity and reputation should be overridden only by a legitimate public interest and in the following circumstances:
· 4.7.1: The facts reported are true or substantially true; or · 4.7.4: It was reasonable for the article to be published because it was prepared in accordance with acceptable principles of journalistic conduct and in the public interest.” Section 9: “Due care and responsibility shall be exercised by the press with regard to the presentation of brutality, violence and suffering.” |
Dean says the pictures violated the dignity of Sithole and his family.
Smuts agrees that there is no dignity in being stabbed to death in a litter-strewn ditch. She says, though, that the legal position is that a dead person has no dignity to defend. The legal editor adds that a third party cannot complain about a possible infringement on someone else’s dignity.
Dean replies that the publishing of the pictures was in breach of Section 9 of the Code as they showed Sithole’s “immense suffering as he begins to succumb to the deadly injuries”.
He adds: “It is unclear exactly what the requirements of ‘due care and responsibility’ mean in the context of publishing photographs of [Sithole] being assaulted and killed. How does the [newspaper]…fulfil this duty while at the same time publish grossly violent photographs? There is a deficiency in the Code itself for failing to demonstrate to the readership the requirements that the [publication] and the press collectively must fulfil in circumstances where violent photographs are published, and/or the [newspaper] has chosen to ignore its duty by failing to demonstrate…what steps it took, either expressly or implied, to fulfil its obligations in terms of section 9 of the Code.”
Dean argues Sunday Times has failed to fulfil its duty in terms of Section 9 for the following reasons:
· There were no photographs to demonstrate the normal life Sithole had lived, or to show what he looked like under normal circumstances;
· There was insufficient focus on the:
o views of Sithole’s family members and those close to him. If this was impossible at the time, then the steps taken to get in contact with such persons should have been expressed in the story;
o background of his life (i.e. his occupation, age, marital status, any dependents, number of years in the country and further information on his city of origin); if this was impossible at the time, then the steps taken to get in contact with such persons should have been expressed in the report.
My considerations
An incident that happened in April 1988 springs to mind, when a terrorist/freedom fighter (depending on the perspective) planned to detonate a bomb outside the Sterland movie complex in Pretoria. The bomb exploded earlier than expected, gruesomely ripping this person to pieces and disheveling parts of his body.
Rapport then published a huge picture, in colour, of what was left of this person on its front page, with a much smaller picture of the deceased, showing his face after somebody had lifted it for the photograph to be taken.
A more gruesome illustration than the main picture is hardly thinkable.
A complaint was lodged with the then Media Council, who rejected it with regards to the main picture, arguing an overriding public interest in this case. (The complaint about the smaller picture was upheld because the lifting of the head was deemed to be staged.)
I am fully aware of the fact that the Media Council was a different animal from the current Press Council – the former was an Apartheid institution, while the latter is independent of any government influence.
While I am therefore not guided by this decision, I still am taking the merits of the ruling into account.
Given the spate of xenophobic attacks of late, and the huge impact they have had both nationally and globally, I would argue that public interest in this case overrides the concerns of sensitive readers and those of family members, as well as the dignity of Sithole’s family.
Harsh though it may seem, Smuts is also correct in saying that a dead person has no dignity to defend.
I also do not believe that the newspaper has breached the Press Code by not:
· publishing photographs to demonstrate the normal life Sithole had lived, or to show what he looked like under normal circumstances;
· properly obtaining the views of Sithole’s family members and those close to him; and
· publishing information about his life.
None of these arguments are material to the gist of the story and the pictures.
The actions of the reporters:
Obtaining the pictures/story deceitfully
| Section 1.1: “News should be obtained legally, honestly and fairly, unless public interest dictates otherwise.” |
Dean complains that the pictures of Sithole being murdered and the story were obtained deceitfully for two reasons:
· Before his death, the “necessary implication” is that the newspaper had obtained his consent to publish the photographs – if not, there could be no public interest concerns. “In fact, public interest require such images to remain private”; and
· The journalists failed to warn Sithole despite knowing that he was in imminent danger.
Smuts rejects the allegation that Sunday Times obtained the photographs deceitfully – the incident took place in public and therefore the newspaper was not obliged to get Sithole’s permission. She also disagrees that public interest demands that images of the attack remain private – “this is an opinion of the complainant and [it is] not an established principle in South African law or discourse”.
My considerations
Dean argues that, if the newspaper had not obtained Sithole’s consent to publish the pictures, then there could be no public interest in the matter. I fail to follow this “logic”. Were the reporters to stop the attackers and ask Sithole for permission to publish pictures of the murder immediately afterwards?
I address the second part of this complaint (failing to warn Sithole) below.
Not interfering
| Sections 2.7, 4.7 and 9. |
Dean says that the story demonstrated with lucid detail the method the murderers used to kill the victim. “This necessarily implies that the reporters foresaw the real possibility that…Sithole would face…physical danger yet [they] failed to issue at least a warning when the moral convictions of the community would require them to do so. The reporters allowed the sequence of events to play themselves out. They did so in order to gather the story.”
He complains that this action, or the lack of it, was in violation of the Press Code as it was deceitful, offensive to Sithole’s dignity and privacy, abusive of the prevailing moral climate, and as it violated the victim’s right to life.
Dean does note that the reporters assisted Sithole to the hospital, and that journalists should not interfere in circumstances that could lead to unnecessary harm for them. Yet, he maintains that had the journalists warned Sithole of the real possibility of a threat they had foreseen, while it was unknown to the victim, the fatal outcome may have been avoided.
Smuts denies the journalists knew that Sithole was in imminent danger until he was attacked – they heard screams, and turned to see men running in their direction. The attack was over in less than two minutes. “The accusation that (the journalists) were aware that an attack was imminent and callously neglected to tell him is devoid of truth and rejected with contempt.”
She adds that Dean ignores the fact that the two reporters were unarmed and could have been outmatched easily by four armed thugs. “They showed considerable courage in photographing the events. The killers could easily have turned on them too…The people who violated Mr Sithole’s right to life are the people who took it, not the journalists who recorded the evidence that would lead to their arrests… If the journalists had decided that their personal safety was more important than getting the story, they could have left the scene and no one would be any the wiser…We disagree, profoundly, that our conduct was irresponsible.”
My considerations
What would the complainant have done in the few seconds after screams were heard and the attack had begun? I certainly do not blame the journalists for not interfering and putting their own lives in danger.
Smuts is correct on this point – the reporters should be commended for their courage in taking the pictures (and offering help to Sithole after he had been stabbed).
The story:
Unbalanced
| Section 2.1: “The press shall take care to report news…fairly.”
Section 2.2: “News shall be presented in context and in a balanced manner, without any intentional or negligent departure from the facts whether by…material omissions…” |
Dean complains that the story was unbalanced as it shed no light on whether or not the alleged murderers (who were “clearly identified” in the pictures) were prosecuted and/or on the efforts made by Sunday Times in reporting the crime to the Police.
The legal editor replies that at the time of publication no arrests had been made.
My considerations
The newspaper could not report on prosecution if no arrests had been made at the time of publication. The efforts or otherwise by the newspaper to report the crime are not by default newsworthy.
Misaligned with the photographs
Dean complains that the substance of the story was misaligned with the photographs in that they were presented merely as background to the general state of xenophobic attacks as well as to certain responses by public authorities. “The murder…was effectively used merely [as] an example and insufficient emphasis on an official level was placed on the events surrounding his death.”
Smuts merely says that this part of the complaint does not make any sense.
Dean replies that the majority of the report was based on how certain high-level people have reacted to the general issue of xenophobia in South Africa and specifically the current attacks, including the role of King Goodwill Zwelithini. “This cannot reasonably be considered to adequately reflect the facts surrounding the attack itself.”
He also complains that no information is given about the identities of the perpetrators or the steps taken by the newspaper to report the incident to the Police. “This is unreasonable… At the time of reading, the reader is left uninformed about the possibility of clearly identifiable criminals posing a dangerous threat to society.”
My considerations
I agree with the legal editor. Even if the murder was used as an example, as Dean asserts, that could not possibly be in violation of the Press Code.
Appendix:
Dean did not complain about the headline. However, he does mention in his reply to the newspaper’s response that the headline was “grossly exaggerated” and inappropriately one-sided.
The newspaper did not have an opportunity to respond to the belated raising of this issue. It was not necessary for it to do so, as the headline adequately reflected the gist of the story and the accompanying pictures (as required by Section 10.1 of the Press Code).
Finding
The complaint is dismissed.
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 Appeals Panel, Judge Bernard Ngoepe, fully setting out the grounds of appeal. He can be contacted at [email protected].
Johan Retief
Press Ombudsman