Jean-Yves Olivier vs. Sunday Times

This ruling is based on the written submissions of Mr Barry Aaron of Barry Aaron & Associates, on behalf of Mr Jean-Yves Ollivier, and those of Susan Smuts, legal editor of the Sunday Times newspaper.

Complaint

Ollivier is complaining about three reports in the Sunday Times of 15 February 2015. The first was headlined An arms dealer, an athlete and a quiet man of steel, the second was a front-page story headlined Threat to gag us over hidden Swiss billions, and the third was headlined Scramble to provide ‘true’ accounts of Swiss stashes.

He complains about:

·         factual inaccuracies in the articles (details below) relating to him;

·         the context in which he had been alluded to, arguing that this falsely suggested that he had acted illegally, inappropriately and wrongfully, and that he was an international criminal and scoundrel; and

·         the headlines, which were “inapplicable” to him.

He also complains that he was not contacted for comment.

The texts

The first story named several people with accounts at banking giant HSBC, including Ollivier. The journalist reported some facts about his achievements, with a comment from his spokesman that he had paid all taxes due. (More details below.)

The front-page story, written by Rob Rose and Tina Weavind, reported that HSBC had threatened the Sunday Times for exposing the wealthy South Africans who had stashed R23-billion in secret Swiss bank accounts. “This week, shocking evidence emerged of more than 100 000 clients of HSBC internationally, who included tax dodgers, drug dealers and government officials who used the secret Swiss accounts to launder cash and hide money.”

The third story did not mention Ollivier.

Analysis

Factual inaccuracies

Ollivier complains that the stories wrongfully said he was a South African citizen.

He says that:

·         he is and has always been a French citizen and he is not now, nor has he ever been a South African citizen;

·         he became a Swiss resident in 1994 and both resided and conducted business there, and he continues to work out of Switzerland;

·         as a Swiss resident he lawfully and legitimately opened and conducted a number of bank accounts with a bank in Switzerland and when this bank was subsequently taken over by HSBC, he closed all his accounts; and

·         he had no accounts at HSBC at the time when the HSBC data was apparently stolen (in late 2006 / early 2007) and he no longer has any active accounts at HSBC.

Smuts denies the stories said that Ollivier was a South African citizen – instead, the newspaper reported that he was a French citizen and a Swiss resident, and quoted his spokesman saying that he had paid all taxes due. “We did not claim that he was a South African or held a South African passport. We stated, in fact, that he was the only foreigner to be awarded [honours] by the South African government.”

Aaron replies, “[Ollivier] continues to work in Switzerland, as such he was lawfully entitled to conduct bank accounts in Switzerland, at the time or generally, without contravening the laws of any country, including those of South Africa.”

He adds that:

·         the account into which an amount of $707 619.00 was deposited was in the name of a company, Peninsula 11, and not in Ollivier’s name;

·         the accounts in question were opened at a particular bank (not at HSBC) after Ollivier became a Swiss resident, during the 1990s. The said bank was subsequently taken over by HSBC, at which time all the accounts were closed;

·         as at 2006/2007 (the newspaper alleged that seven accounts were conducted by Ollivier then) he had no accounts with HSBC;

·         the money that had been in the Peninsula 11 account (or in any of the other accounts) was not “hidden” for or from any nefarious purpose;

·         he did not make use of or conduct accounts for secretive or illicit purposes; and

·         he did not share the same or a similar reputation – or any negative reputation at all – with other persons named in the article as mentioned above.

“As a result the article was factually incorrect.”

Smuts responds, “We did not say that an amount of $707 619 was deposited in an account in Mr Ollivier’s name. We said that Mr Ollivier was linked to an account that held that amount in 2006/7…We did not allege that Mr Ollivier hid money in the Peninsula 11 account, or used it for secretive, nefarious or illicit purposes.”

My considerations

Ollivier’s denial of being a South African citizen is strange, as none of the stories alleged that he was – instead, the newspaper reported that he was a French citizen and a Swiss resident, and referred to him as a foreigner (as Smuts rightly points out).

The legal editor is also correct when stating that the story did not say an amount of $707 619 had been deposited in Ollivier’s name, but merely that he had been linked to an account that held that amount in 2006/7.

I can accept Aaron’s arguments that the money in the Peninsula 11 account (or in any of the other accounts) was not “hidden” for or from any nefarious purpose, that Ollivier did not make use of or conduct accounts for secretive or illicit purposes, and that the latter did not share the same or a similar reputation – or any negative reputation at all – with those other persons named in the article as mentioned above.

But then, nowhere in any of the stories were such allegations made.

The context

Ollivier complains that the gist of the article as pertaining to him and the context in which he had been alluded to falsely suggested that he had acted illegally, inappropriately and wrongfully, and that he was an international criminal and scoundrel.

He adds that it was also inappropriate to have included him in the article without specific mention that there is no suggestion that he was suspected of any financial wrongdoing nor suspected as a “tax dodger, drug dealer and government official who used the secret Swiss accounts to launder cash and hide money”. He objects to the exposure of his name to any suggestion or perception that he should be viewed as an international scoundrel, rogue and/or disreputable in any manner at all.

Smuts denies that the stories implied that Ollivier acted illegally, inappropriately and wrongfully. She argues, “It is a fact that many of the HSBC clients were tax dodgers, drug dealers and government officials. However, as our reports were at pains to point out, only some of the people with accounts at HSBC fell into that category. No reasonable reader would infer from our reports that all the people we named fell into this category. Several of the people we named were named because they had a high-profile or interesting history, and not because they conducted their business unethically or illegally. The way in which we reported on the individuals concerned made it clear which ones were suspected of dishonesty and which were not. [Ollivier] was mentioned because his singular role in securing the release of former President Nelson Mandela from prison.”

In later correspondence, Aaron points out that the main article inter alia described the following people:

·         Fana Hlongwane, an “infamous playboy accused of passing bribes from defence company BAE to now deceased former defence minister Joe Modise as part of South Africa’s arms deal”;

·         Jeff Wiggill, who is stated to have “swindled” millions of Rands out of South Africa’s big banks; and

·         Julian Askin, who is described as a fugitive from South Africa who is resisting extradition due to his involvement in the Tollgate collapse.

He argues the implications of the article were such that the reasonable reader would have:

·         concluded, inasmuch as all money discussed in the article is said to be “hidden” and described as “Swiss billions”, that those named as account holders had clandestine and dishonest motives for banking in Switzerland and that the amounts of money were ominously large and that the source of the money was suspect;

·         understood that the:

o   purpose of the money being placed in those accounts was to hide it from scrutiny by various bodies which may wish to investigate the financial affairs of the account holders. Such persons would include tax/revenue authorities, and those investigating money laundering, illegal drugs, illicit arms deals and other unlawful and prohibited activities;

o   complainant was one of many persons – in the company of drug dealers and corrupt government officials – who had hidden large sums of money in Swiss bank accounts for these reasons;

o   account holders were subject to the suspicion that they may have evaded tax, either in South Africa or elsewhere;

o   complainant was contaminated by association with persons enjoying extremely poor reputations as a result of their dishonesty and corruption;

·         concluded that:

o   the sources of the funds in those accounts were not legitimate or that their legitimacy was doubtful, and that the funds had been “hidden” in a Swiss bank account in order to avoid tax obligations or other scrutiny by investigating authorities;

o   those listed may have committed local and/or international tax evasion;

·         suspected that, even if Ollivier’s conduct technically was not illegal it was at least worthy of moral criticism and/or suspicion and/or opprobrium.

To this, Smuts replies that while Aaron seeks to highlight the aspects of the story dealing with criminals and individuals suspected of underhand practices, the story also mentioned individuals who were not suspected of wrongdoing, such as Macsteel head Eric Samson, athlete Paul Nash and his family, documentary filmmaker Laurence Hamburger and homeware designer Carrol Boyes. Clifford Elphick, CEO of GEM Diamonds and a former De Beers executive, was named in an accompanying story that highlighted five people linked to HSBC accounts. The story also pointed out that it was not a crime for South Africans to have Swiss bank accounts, and that many of those contacted said they had disclosed details of the accounts and paid taxes. “The common denominator of the people mentioned was that they were linked to accounts held at HSBC when the information was stolen [and not] that they were all suspected of wrong doing. Only some of them were suspected of such. No reasonable reading of the story would come to the conclusion that the account holders as a group were suspected of tax dodging or drug dealing and the like. Where individuals named in the story were suspected of wrong doing, we explicitly stated this.” She argues that Hlongwane was named as having been accused of passing bribes in the Arms deal; Jeff Wiggill swindled millions out of South African banks; and Julian Askin was a fugitive since the collapse of Tollgate. “We named other individuals because of their prominence, achievement or interesting history. There can be no confusion in the minds of our readers which individuals were suspected of wrong doing and which were not. It is not reasonable to insist that we said or implied wrong doing on behalf of Mr Ollivier when we self-evidently did not.” The newspaper says the Swiss banking system is attractive to all sorts of individuals for all kinds of reasons, including honest and dishonest individuals. “We submit that it is not permissible to assert, as Mr Aaron does, that the story suggests that all the money in the HSBC accounts was placed in Swiss bank accounts by those who wished to hide it from bodies scrutinising criminal enterprise. Some people would have acted with that motive, many did not. We did not suggest Mr Ollivier had that motive. We make the same argument for his assertions, among other things, that the story suggested everyone with an HSBC bank account was subject to suspicion or contaminated by association or that the source of the funds was not legitimate or that all account holders dodged tax.”

My considerations

I have already pointed out that there was nothing wrong with the texts themselves as pertaining to Ollivier.

The question, now, is about context – for it is perfectly possible that the correct facts, placed in a wrong context, may amount to unfair reporting.

For that reason, I need to put all the stories in context, and also look at what material information the newspaper did not publish.

The front-page story reported that HSBC has threatened the Sunday Times for exposing the wealthy South Africans who stashed R23-billion in secret Swiss bank accounts. “This week, shocking evidence emerged of more than 100 000 clients of HSBC internationally, who included tax dodgers, drug dealers and government officials who used the secret Swiss accounts to launder cash and hide money.” (Emphases added.)

Then, Hlongwane, Wiggill and Askin were mentioned, together with some serious wrongdoing on their part. Immediately after this, Ollivier was named.

The main story in Ollivier’s complaint is also overwhelmingly negative; so is the third (in which Ollivier was not mentioned).

I am not surprised at all that Ollivier is unhappy about the context, as the reasonable reader would most probably have interpreted the reporting on him as (also) negative. I therefore disagree with Smuts when she says, “No reasonable reader would infer from our reports that all the people we named fell into this category.”

Secondly, Smuts argues, “Several of the people we named were named because they had a high-profile or interesting history, and not because they conducted their business unethically or illegally.”

Now, this is the point: If it was the newspaper’s intention to list a few high-profile or interesting people, it should have said so in the stories. That was not mentioned, and that is why I earlier noted that I also need to look at what Sunday Times did not say.

Had I been Ollivier, I would have felt exactly the same.

I have little doubt that the negative context in which he was mentioned, while by the newspaper’s own admission he was merely a high-profile or an interesting person, must have caused him unnecessary harm.

‘Inapplicable’ headlines

Sunday Times does not reply to this part of the complaint.

My considerations

A headline can never reflect the whole story; it is supposed to mirror the gist of the article. I am satisfied that the headlines did exactly that.

Not asked for comment

Smuts denies the newspaper did not ask Ollivier for comment. “We worked collaboratively with the International Consortium of Investigative Journalists, and our colleagues in that organisation obtained comment from [Ollivier’s] spokesman. This comment was reflected in our story.”

In later correspondence, Aaron argues that the reasonable reader would have understood that the:

·         author of the article had personally spoken to the spokesman in question;

·         questions posed to the spokesman arose from the facts and circumstances featured in the article; and

·         response of the spokesman to the author had to do with the facts and circumstances featured in the article, and were as quoted in the article.

He says the statements attributed to Ollivier’s spokesman were in fact a written response to an email from the International Consortium of Investigative Journalists (ICIJ) which appears to have been sent to Ollivier on 22 January 2015. “The comment…was in respect of the questions raised by the ICIJ and not the intended publication in the Sunday Times.”

Aaron argues that the comment was not a response:

·         to allegations that money was “hidden” in Swiss accounts from South African or other authorities as in the case of the accusations and implications arising from the article; and

·         from either him or Ollivier, to whom questions or enquiries were directed.

Smuts replies that the story arose as a collaborative effort by members of the ICIJ. They are all practicing journalists based at various newspapers throughout the world. Rob Rose, who is one of the authors of the story published by Sunday Times, is a member of the ICIJ. Since members of the ICIJ were writing stories based on the same set of facts, it was reasonable for the ICIJ to approach individuals concerned for comment and for members to use such comment in the stories they wrote. It was an efficient way of giving the individuals concerned an opportunity to respond. There is no good reason for rejecting this method of obtaining comment. “The important point is that Mr Ollivier was given an opportunity to comment, and that his comments were reflected in the newspaper. Moreover, despite Mr Aaron’s suggestion to the contrary, the questions did relate…the facts and circumstances dealt with in the story. Likewise, the spokesman’s answers related to the facts in the story. [W]e, through the ICIJ, approached Mr Ollivier for comment… Mr Aaron’s suggestion that we should have approached him for comment on behalf of Mr Ollivier is misplaced. We are not obliged to unravel the various hierarchies of representation that Mr Ollivier may or may not have. We were obliged to give him an opportunity to comment, which we did through the ICIJ, and to publish his response, which we did.”

My considerations

The legal editor’s argument is reasonable and it does not need any further debate.

Finding

Factual inaccuracies

This part of the complaint is dismissed.

The context

Ollivier’s complaint that the gist of the article as pertaining to him, and the context in which he had been alluded to, falsely creating the impression that he had acted illegally, inappropriately and wrongfully, and that he was an international criminal and scoundrel, is upheld.

The reporting is in breach of the following sections of the Press Code:

·         2.1: “The press shall take care to report news…fairly; and

·         2.2: “News shall be presented in context and in a balanced manner, without any intentional or unintentional departure from the facts whether by…material omissions…”

‘Inapplicable’ headlines

This part of the complaint is dismissed.

Not asked for comment

This part of the complaint is dismissed.

Seriousness of breaches

Under the headline Hierarchy of sanctions, Section 8 of our Complaints Procedures distinguishes between minor breaches (Tier 1), serious breaches (Tier 2) and serious misconduct (Tier 3).

The breach of the Code as described above is a Tier 2 offence.

Sanction

Sunday Times is directed to:

·         apologise to Ollivier, on page 2 or 3, and above the fold, for falsely creating the impression that he had acted illegally, inappropriately and wrongfully, and that he was an international criminal and scoundrel – even though this might not having been done on purpose;

·         explain that the intention was not to suggest that he was a criminal and a scoundrel; and

·         end off the text with the following sentence, “Visit www.presscouncil.org.za for the full finding.”

The headline should reflect the content of the text. A heading such as “Matter of Fact”, or something similar, is not acceptable.

A kicker on the front-page, immediately underneath the masthead, should refer to the apology and explanation on page 2/3.

Website:

·         The stories referring to Ollivier should be removed; and

·         The text to appear in the newspaper should be placed online.

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