Gemfields PLC et al vs. Mail & Guardian
This ruling is based on the written submissions of Mr Eric van den Berg (from Faskin Martineau), on behalf of Gemfields PLC and Montepuez Ruby Mining (MRM), and those of the amaBhungane centre for investigative journalism at the Mail & Guardian newspaper.
Complaint
Gemfields et al (“The companies”) are complaining about an article and an editorial in Mail & Guardian of 11 March 2016 (also published online).
The article, ranging from pages 10 to 12, was headlined Villagers digging for rubies ‘shot and left to die’, and accompanied by two sidebars (A long, long way from El Dorado, and Gem firm’s SA roots run deep). The editorial, on page 26, was headlined, Tyranny rules the gemfields.
The companies complain that the headline and the texts:
· inaccurately stated and / or implied that MRM, and by association Gemfields, had been:
o safeguarding an unethical monopoly through force by its security company, employed by the former within the relevant concession area;
o directing government forces to commit violent acts against people who had been mining illegally within the concession area;
· omitted material information which did not fit into the newspaper’s pre-conceived ideas; and
· contained false and damaging statements, while the companies were not asked to respond to most of those.
The companies add that the photographs on page 12 were misleading.
The texts
The article, written by Estacio Valoi and Gesbeen Mohammad, was about villagers in a rural region of Mozambique (Montepuez) who had allegedly been beaten and killed on MRM’s concession area by security forces and guards employed by that company.
It said, “South African business moguls Christo Wiese and Brian Gilbertson loom large behind Gemfields, an ‘ethical’ gemstone company accused of operating in a ‘militarised’ zone in rural northern Mozambique, where state forces and a South Africa-owned security company have allegedly beaten villagers and killed illegal miners.”
The story explained that Pallinghurst Resources, a mining investment group listed on the Johannesburg Stock Exchange, was Gemfields’s largest shareholder. In turn, Wiese was the group’s largest shareholder, while another South African, Brian Gilbertson, was the group’s chairman.
The journalists reported that the Rapid Intervention Force (FIR), which is part of the Special Forces section of the Mozambican army, helped MRM ensure that unlicensed miners did not enter the concession area. FIR agents were equipped with AK-47s, while Mozambican police have also been known to intervene in the ruby fields.
Montepuez chief prosecutor Pompilio Xavier Wazamguia reportedly said that state security forces protected the mine, and questioned why the company did not create its own security programme to protect the property; Gemfields countered that government law enforcement agents were present “to uphold the law of the land and to protect the national interests of the country”.
In addition to state forces, MRM employed a private security company, Arkhe Risk Solutions, a Mozambican subsidiary of South Africa’s Omega Risk Solutions.
The first sidebar, A long, long way from El Dorado, quoted local residents who claimed that MRM did not hold to its corporate social responsibility programme. It stated, “[P]eople claim many of its promises have not materialised and accuse the company of ‘legalised land grabbing’.” Some villagers reportedly referred to the area as “El Dobrado” or “the collapsed city” – a bastardisation of the mythical golden city El Dorado.
The other sidebar (Gem firm’s SA roots run deep) described Gemfields’s strong South African roots, although the company was listed in London and was run from there.
The editorial said that Gemfields collected billions of rands from its ruby, emerald and amethyst mines in some of Africa’s poorest areas. Much of this wealth was funneled through opaque offshore companies before going on to fill the vaults of people such as Wiese and Gilbertson.
The editor (Verashni Pillay) stated that, with the globe at Gemfields’s fingertips and wealth at hand, it was easy for “such distant men” to broadcast their version of the company to the world’s rich. She noted that Wiese and Gilbertson would not answer the newspaper’s questions, and that Gemfields would not shoulder responsibility.
“This does not present a picture of a transparent and ethical enterprise,” she concluded.
The arguments
Gemfields, MRM
Using force
Van den Berg says that the article broadly implied that MRM, and by association Gemfields, had been safeguarding an unethical monopoly through force by its security company, which had been routinely committing acts of violence against local artisanal miners.
He argues that the combination of the headline and the graphic created the impression that the article was about allegations that Gemfields was involved in shooting and leaving people to die – yet the opening paragraph referred to men who had been shot by FIR, and the second paragraph clarified that FIR was not Gemfields and that members of the former were alleged to be the killers.
This “inaccuracy”, he continues, persisted into the third paragraph where the word “guards” was used without qualifying whether they were from FIR or from another agency. “There is thus a deliberate distortion to lay the blame for human rights violations at the door of Gemfields.”
Van den Berg also says there was no need to use the word “ethical” in quotation marks, as it implied that Gemfields had in fact not been ethical and that it had been implicated in unlawful conduct.
He argues that the texts cited a number of incidents of shootings and allegations of beatings (he mentions three such examples) – none of which could be placed at the companies’ doors. While the articles focused on FIR (and other Mozambican security personnel), a series of quotes attempted to link it to Gemfields and to imply that the latter controlled the former, he adds.
Says Van den Berg: “Gemfields categorically denies the assertion in the [article] that it condones or sanctions acts of violence. Neither MRM, nor its officers, staff or contractors, are engaged in violence toward, or intimidation of, the local community in Montepuez.”
Influencing government forces to commit violent acts
Van den Berg says the article suggested that MRM has, with the help of Mozambican forces, turned the region into a militarized zone, and had been using unwarranted levels of force to protect the concession. He states that the story even implied that MRM was directing government forces to commit violent acts against people who had been mining illegally within the concession area.
Omitting material information
Van den Berg says Gemfields provided clear and detailed responses to a number of issues raised by the journalist – much of which was disregarded “to the extent it did not fit into the pre-conceived thesis that the authors were determined to present in the article”.
He says that the questions put to Gemfields were in respect of the allegations of human rights abuses, but complains that these were vague and provided little detail. He asserts that, in contrast, Gemfields responded in detail, outlining its security personnel, their training and equipment – all omitted from the texts.
Van den Berg adds that the:
· answers in response to FIR’s activities were “selectively misquoted”. For example, the quote “to uphold the law of the land and to protect the national interests of the country” (referring to FIR) omitted the next portion which stated, “clearly the presence of rubies – one of the planet’s most valuable gemstones – attracts unscrupulous dealers, middlemen and smugglers who engage in and nurture illegal activity”;
· newspaper was in possession of a report which dealt with security issues regarding illegal artisanal mining – this detail was omitted, with the result that the article was unbalanced and unfair to Gemfields;
· response by Gemfields to questions about the risks faced by miners on and near the concession was omitted. He refers to the following sentence in the article: “In many places, MRM’s ruby concession is perforated with narrow pits, many more than three meters deep, dug by artisanal miners. Often, it is difficult to tell whether miners are working in them. The instability of the ground causes it to collapse, burying miners alive without MRM bearing any responsibility” – while Gemfields stated in its response, “MRM is habitually called upon to assist in a humanitarian capacity to rescue or recover illegal miners who have been buried by the collapse of their own excavations. No MRM ‘digging machine’ has ever killed an illegal miner, whether by accident or intentionally. The assertion that MRM buries illegal miners alive by driving its ‘digging machine’ over their excavations while they are in them is both libelous and unfounded”; and
· article ignored the unlawfulness and danger of artisanal mining conducted by foreigners.
‘False, damaging’ statements – no response asked
The statements in question read as follows:
· “Villagers say a health centre, crucial to countering rising levels of HIV, has not been built. Rather than rehabilitating a school, said provincial district administrator Arcanjo Cassia, the company gave an old building from the Portuguese colonial era ‘a new coat of paint’.”;
· “London-based Gemfields collects billions of rands from its ruby, emerald and amethyst mines in some of Africa’s poorest areas. Much of this wealth is funneled through opaque offshore companies before going on to fill the vaults of people such as South Africa’s Christo Wiese, the Shoprite founder, and former BHP Billiton chief executive Brian Gilbertson”;
· “Much of this wealth is funneled through opaque offshore companies before going on to fill the vaults of people such as…” (the editorial);
· “Forty percent of the world’s rubies are expected to come from this 336km2 concession. Only MRM is permitted to produce and sell rubies from this region. It is a lucrative investment; the company holds an exclusive 25-year mining licence over the area, granted by the Mozambican government in November 2011” – Van den Berg says this statement falsely suggested that Gemfields has a monopoly on producing and selling rubies from the Montepuez region, while omitting the wider area that also produced rubies.
The companies also complain that the newspaper’s claims of billions being ‘funneled’ are factually incorrect – Gemfields has not paid any dividends (the company’s financial statements are available on its website), neither has any money been “funneled” to either Wiese or Gilbertson. “The MRM concession is in a start-up phase and the income generated is being used to fund growth and to further invest in its asset base. All of Gemfields subsidiaries publish annual accounts and the flow of funds is fully traceable,” he adds.
The story stated that Gilbertson had worked for Rio Tinto and Glencore International, and had a reputation as a formidable dealmaker in the mining industry. Van den Berg complains that the article got Gilbertson’s employment history wrong.
Misleading pictures
The companies complain that the photographs of some of the personalities were juxtaposed to create the image of a rogues’ gallery or some sort of “wanted” list. These pictures appeared immediately above the portion of the article dealing with the dangers they were alleged to be posing to artisanal miners.
Mail & Guardian
In general, the newspaper denies that the texts were replete with inaccuracies, and that an ordinary reader was likely to draw untrue and defamatory inferences about the companies’ practices.
Using force
The M&G says the companies’ complaint that its reportage implied that they had been safeguarding an unethical monopoly through force “distorts the article”. It says the article reported well-supported allegations in this regard, and adds that it did not attack MRM’s exclusive licence as “unethical”.
It also argues that the headline accurately reflected the allegation in question, and denies that any reasonable reader would have concluded from the headline (and the graphic) that Gemfields had been involved in the shooting.
The newspaper argues, “It is a trite principle of law and a fundamental tenet of journalism that headlines … are not read in isolation, but in the context of the article as a whole. This context will make it clear … that Gemfields was not involved in the shooting and leaving villagers to die.”
Regarding the use of the word “ethical”, amaBhungane says it was an established practice to use quotation marks when quoting an assertion.
The publication also says it is irrelevant that other shooting incidents and beating allegations could not be blamed on the companies – “Gemfields cannot escape all blame for the results from which it benefits.”
Also, it argues that the article linked FIR to Gemfields only to the extent that the former’s agents were protecting its mine “and there are serious and credible allegations that it exerts unwarranted force in this regard”.
Influencing government forces to commit violent acts
The M&G denies that the article suggested that MRM, with the help of Mozambican forces, had turned the region into a militarized zone (by using unwarranted levels of force to protect the concession). It says, “Again, it distorts the distinction between active and passive and overstates the extent of our reporting.” The publication argues that MRM was the beneficiary of the alleged militarization by state security forces; it has also “arguably” contributed to this state of affairs through its employment of hundreds of security guards – and besides, the texts used the word “militarization” in quotation marks to indicate that it was an allegation.
It also says that the companies’ view on this matter is a “serious misrepresentation”, as the article:
· did not state this;
· quoted a police officer who claimed that MRM had ordered state forces to use “all means necessary” to keep illegal miners away – this reporting was justified, given the position of the source, as well as having balanced it out with the companies’ instant response, “that artisanal miners are not being shot ‘because they are mining in MRM territory’ and security forces are not killing them ‘in MRM’s name’.”; and
· reflected the general comment that Gemfields categorically denied the inference that it condoned or sanctioned acts of violence.
The newspaper also notes a statement by the regional attorney-general that an Arkhe guard had been convicted of one of the killings, and that villagers also made claims of violence against that security company.
Omitting material information
The M&G replies that it was grateful for MRM’s lengthy response, but says it was not practical to include all of it, arguing, “We took pains to reflect the substance of the response where relevant – and this is our obligation under the Press Code.”
In this regard it mentions 18 instances where the companies’ response were reflected (approximately 560 of about 2 700 words) – “So it cannot be claimed that we did not diligently reflect their version.”
The newspaper adds that the:
· first paragraph should not be read in isolation and that it did not contradict the headline;
· second paragraph made it clear that FIR was a state agency; and
· third paragraph was factually correct – and Gemfields indeed benefitted from methods used to protect its concession.
It argues that these instances should be read in context – which the companies do not do.
AmaBhungane also denies that its questions to the companies were “vague”.
Regarding Gemfields’s security personnel, their training and equipment, the newspaper says it could not verbatim repeat every response, and argues that the essence of the reply was reflected in the article (and also notes that it did contain information about this issue on two occasions).
The newspaper also denies that it “selectively quoted” the companies’ responses, and asserts that the article:
· made it clear that illegal mining was a problem with which the companies had trouble dealing;
· carried the denial that one person had been buried alive; and
· explained at length that there was no evidence for the above (quoting the attorney-general in this regard) and that many people die in that area through no fault of MRM’s.
‘False, damaging’ statements – no response asked
AmaBhungane denies that the allegations about the health centre and school were not put to Gemfields. While the article did not reflect the specific answers in this regard, it did portray “the heart of the general response”, mentioning Gemfields’ commitment to corporate social responsibility. It adds, “We however acknowledge that we could have reflected Gemfields’ version in relation to the health centre and the school better, and tender a correction in this regard.”
The newspaper also notes that neither Gilbertson nor Wiese were complainants, but nevertheless denies that references to them involved any “sleight of hand”.
Regarding the alleged payment of dividends that have been “funneled” to either Wiese or Gilbertson, the M&G says the editorial used “metaphorical language” when referring to “wealth … funneled [and] going on to fill the vaults”. It argues, “that dividends have not yet flowed is neither here nor there; the fact is that reinvestment increases the value of the company, which constitutes benefit to both [Gilbertson and Wiese].” The publication adds that the latter have an expectation of dividends to come, and argues that “wealth” is a broad term denoting “fortune”, “means”, “property”, “prosperity”, and sometimes (“but not necessarily”) also “money” or “cash”.
amaBhungane also notes that an editorial is “opinion based on fact” – and argues that the complaint does not demonstrate factual inaccuracy. The newspaper points out that the editorial was protected as it was fair comment on a matter of public interest and was in compliance with the Code.
Regarding MRM’s alleged “monopoly”, the M&G says Gemfields is the only producer of rubies in its 336 square km concession (excluding the illegal miners) and adds, “Our article is about that concession area, given that the allegations related to it.”
Regarding Gilbertson’s employment history, amaBhungane notes that he was not a complainant.
Nevertheless, it admits that the following statement could have been phrased more clearly: “[Gilbertson] has worked for Rio Tinto and Glencore International” – while, according to various online profiles, he was in fact appointed as the CEO of globalCOAL when the business was acquired by a group of companies including Rio Tinto and Glencore. “However, we fail to see the prejudice suffered by Gemfields and MRM,” it argues.
Misleading pictures
Regarding the juxtaposed pictures, amaBhungane says the complaint is not clear “and we are not able to deal with it in its current formulation”.
The companies’ reply to M&G’s response
The companies say the M&G:
· ignores the central thrust of the complaint, namely that the article presented a factually inaccurate and selective account of the true situation at Montepuez, and that the ordinary reader was likely to draw false and defamatory inferences about their operations and practices;
· fails to correct (and, in fact, repeats) a number of factual inaccuracies and false assumptions – despite information that is readily available; and
· mainly dealt with minor concessions (about Gemfields, specific responses to questions regarding the construction of a health centre and Gilbertson’s employment history) – and grudgingly, at that (as if they really are minor).
Van den Berg also points to an article that was subsequently published by Zam Magazine (ZM, which operates in partnership with the M&G) on the same issue. He submits that, unlike the story in dispute, this article clarified at the outset that not all the alleged issues it described at the Montepuez deposit could be connected to Gemfields – which rendered that text much fairer and more balanced.
He adds that ZM was quick to correct the vast majority of mistakes in its article (unlike the M&G).
Van den Berg says the differences in the approaches of the two publications are important in that the:
· change in tone and introduction in the ZM represented an implicit acceptance by the two journalists that their M&G story had been unbalanced and that it needed to be corrected;
· M&G continued to defend a number of factual inaccuracies, despite the ZM article; and
· same journalists have elsewhere accepted their errors and have publicly apologized for them.
The complainants take up four issues with the newspaper regarding the latter’s response to its complaint (I shall summarise this, while trying not to repeat too much):
Failure to recognize and correct the overriding, negative innuendo against them in the article
Van den Berg says the newspaper’s preconception (namely that violence occurred in the region at the direction of the companies) is clear from the questions posed to them (and from other examples, as described above).
He notes the newspaper accepts that it omitted to refer to the fact that MRM renders assistance to artisanal miners when their workings collapse – but it dismisses this issue as “besides the point”.
He argues, “In circumstances … where the main thrust of the [article] is to suggest that MRM has a complete disregard for persons on the concession and is actively complicit in harming such people, the fact that MRM proactively conducts rescue efforts to protect artisanal miners is not only relevant, but [also] essential if the matter is to be fairly and accurately reported.”
Van den Berg adds that the newspaper’s failure to respond properly to the complaint regarding the use of individuals’ pictures is unfounded – the photographs appear to have been chosen on the basis that they resemble criminal mug shots; they were positioned above the section of the article dealing with the dangers allegedly posed by the companies to artisanal miners (so as to suggest a connection); and it was an obvious attempt to support the broader narrative of the article (that the companies were somehow responsible for the alleged acts of violence and abuse, described elsewhere in the article).
Misstating figures and unverified information regarding violence at Montepuez
Van den Berg says that the M&G did not make it clear that many of the alleged incidents in the area occurred long before MRM began its operations (in 2012). “This is a critical omission, a proper acknowledgement of which necessitates a complete change in the tone of the publication,” he argues. He also points to the fact that the ZM article clarified that the first killings were not MRM’s concern as they happened before 2012.
He adds that the newspaper’s response also failed to verify the key facts underpinning its article. For example, the newspaper re-confirmed statistics regarding four security officers who were (reportedly) convicted for shooting and killing people on the concession, stating that the attorney-general had provided these statistics – while, in two of those cases the alleged perpetrators had been cleared by a court of any wrongdoing, and the Arkhe guard described in the story had not been convicted of any offence.
Van den Berg submits, “[This] error … is of particular concern. It served as one of the key foundations for the overall thrust of the M&G Article, yet had [they] cross-checked this critical assertion against public court documents, they would have discovered that Mr. Wazamguia’s allegation was incorrect. In fact, the Arkhe guard was exonerated by a court – as copies of the final court judgement show… As such, M&G relied on an ultimately fallible single source for a key part of its story – a practice that is customarily rejected by most reputable media outlets… The reality is that no employees or contractors of MRM have been convicted in relation to alleged human rights violations – a less sensational story.”
Failure to acknowledge differences between the region and the concession
The companies say the article incorrectly conflated the Montepuez region with MRM’s concession – which served to fuel the “unjustifiable anti-Gemfields/MRM narrative”.
Van den Berg refers to the following sentences in the story: “Only MRM is permitted to produce and sell rubies from this region. It is a lucrative investment; the company holds an exclusive 25-year mining licence over the area.”
He argues that, read in the context of the rest of the article, these statements falsely suggest that:
· MRM’s concession covers the entirety of the Montepuez region;
· MRM has the exclusive right to produce rubies from that area (operating as a monopoly); and
· any violence in that area was taking place within MRM’s concession.
He also notes that the newspaper failed to correct the error it has made in this regard.
To this, Van den Berg adds that the article relied heavily on numerous alleged incidents that occurred either outside the concession area or at a time prior to MRM acquiring the concession –without clarifying that point; it also referred to Mozambican security forces without specifying that their operations were not limited to the MRM concession area. “The result is that the M&G Article misleads readers to conclude that each of the incidents highlighted is associated with MRM,” he argues.
He adds that the article should not have limited itself to one, single concession occupying “only a fraction” of the overall deposit area, and concludes, “The issues involved: illegal mining, the use of security forces, the influx of foreign traders, and gang activity, are not confined to one area or one concession. They affect the whole deposit area and can only be fairly analysed and reported on by considering that area in its totality.”
Failure to put the companies’ involvement in the correct context
With regards to the companies’ concern that MRM was portrayed as having directed government forces to commit violent acts against illegal miners, and the newspaper’s argument that they were implicated to the extent that the state and private security forces were protecting the mine in their interests, Van den Berg states that:
· neither Gemfields nor MRM exercise any control over state security forces;
· of the 18 alleged incidents of violence mentioned in the article, only four were alleged to have happened on MRM’s concession;
· in two of these four cases, the alleged perpetrators were exonerated by a court, while the outcomes of the other two cases are still unclear; and
· the companies could not investigate any alleged abuses unless those allegations were brought to their attention.
He adds that it is “incredibly offensive” for the M&G to state that the companies were trying to “wash its hands” of the methods used by state forces. “Both companies take any allegations of human rights abuses extremely seriously and have publicly committed to follow up on any allegations that have come to light as a result of the M&G Article.”
Finally, Van den Berg says the statement that the companies benefit from the presence of Mozambican state forces on the confession “reveals a lack of understanding of the law of the country that mandates the presence of state forces in order to protect what is the property of the country and its people”. He concludes that the companies’ denial that they in any way sanctioned or benefitted from violent conduct on their concession has been made on numerous occasions to the journalists – but they have selectively ignored it or played it down “in order to promote a false thesis central to the article”.
Analysis
The main issues are twofold:
· Did the texts portray the companies in a negative light? and
· If so, was the M&G reasonable in doing so?
Negative light?
The answer to this question regarding the main article is a resounding “yes”.
To validate my argument, I need to highlight the flow of this story. I do so with the full knowledge that I may be accused of having left out important material that may point in a different direction. I am happy to face the possibility of such criticism, as I have no reason to intimidate anybody into any understanding of this matter – I am merely describing the manner in which the article unfolded.
| SA business moguls Wiese and Gilbertson loom large behind Gemfields, an “ethical” gemstone company accused of operating in a “militarised” zone in rural northern Mozambique, where state forces and a SA owned security company have allegedly beaten villagers and killed illegal miners. |
| “My son was shot by the men of Rapid Intervention Force,” Geronimo Potia says. |
| Guards protect the ruby resources for the mine’s owner, MRM – a joint venture between British based company Gemfields and its Mozambican partner, Mwiriti Limitada. |
| MRM began operations in this ruby deposit in 2012. By October last year, the operations had yielded MRM’s 75% majority shareholder, Gemfields, more than $122-million in revenue at auction. |
| Gemfields, a world leader in gemstones, formed MRM in partnership with a number of powerful individuals in Mozambique’s ruling Frelimo party. Samora Machel Jr, the son of Mozambique’s first president, chairs MRM’s board. |
| Gemfields has adopted actress Mila Kunis as its brand ambassador. In a promotional video, she glorifies Gemfields for its ethical approach to gemstone mining. |
| With various task forces protecting MRM’s interests by guarding the ruby deposit against anyone trying to mine there, the region has been turned into a “militarised zone”, villagers say. |
| In Namanhumbir, where Antonio Geronimo lost his life in 2014, the FIR helped MRM ensure that unlicensed miners did not enter the concession area. FIR agents were equipped with AK-47s. They were recently replaced by another government agency, the National Resources Protection Force. About 35 NRPF agents patrol the mine, carrying firearms. |
| Mozambican police have also been known to intervene in the ruby fields. |
| In addition to state forces, MRM uses a private security company, Arkhe Risk Solutions, a Mozambican subsidiary of SA’s Omega Risk Solutions. Arkhe’s team of 470 security operatives ensures that illegal miners are kept out of the ruby fields. |
| Gemfields disputes that the area has become militarised. But the villagers of Montepuez suggest otherwise. |
| His eyes full of tears, Geronimo Potia recalls how his son was shot and left to die on the red soil of Namanhumbir. His body was carried home by his friends, foreign ruby smugglers, who collected money to pay for the burial and support the Potia family. |
| There are other accounts of artisanal miners who were shot and left to die in MRM territory. |
| Wazamguia said four security officers have been convicted for shooting and killing people on MRM’s ruby deposit, inter alia an Arkhe employee. |
| A police officer claimed MRM has ordered state forces to use “all means” necessary to keep illegal miners away from its territory. “We have to follow orders, so we shoot and sometimes we end up accidentally hitting some of them in the confusion.” |
| In the villages near the ruby deposit, many people recounted incidents similar to the one involving Antonio Geronimo. |
| Artisanal miners believe they also face mortal danger from MRM’s earth-moving machines. |
| Abdul claimed that his cousin was buried alive. “He was working with two others in a three-metre hole. They were about 100m away from us, still working, when I and others went back home. We hid when we heard the machines coming. After a while we went back to look for them. Then we saw the machines. They were filling in the hole on top of them.” |
I commend the M&G for all the denials by the companies included in the article (more than they give the newspaper credit for). Yet despite these denials, I still need to conclude that the gist of the story was negative towards the companies.
Consider the sentence preceding the body text, which was published (in bold) at the top of page 10, immediately under the headline, as an introduction to the story. This sentence stated that Wiese and Gilbertson loomed large behind Gemfields, “an ‘ethical’ gemstone company accused of operating in a ‘militarised’ zone in Mozambique”, where state forces and a SA owned security company have allegedly beaten villagers and killed illegal miners.
Immediately after that sentence, this one followed: “’My son was shot by the men of Rapid Intervention Force’, Geronimo Potia says.”
Then, later, the damning allegation by an unnamed source – which directly linked the allegations of killings to MRM (this man claimed that MRM had ordered state forces to use “all means” necessary to keep illegal miners away from its territory, and that the police had to follow orders).
The headline, of course, also played its part (Villagers digging for rubies ‘shot and left to die’); and so did the use of the photographs of six people – all of whom were in some way or another connected with either Gemfields or MRM. (More about the headline later.)
The conclusion based on all of this – the introductory sentence, the inferences from the flow of the article, the use of the photographs as well as the headline – is inescapable: People were shot and killed in the area, and MRM were alleged to have been involved in this in some way or another.
I therefore disagree with the M&G’s claim that the context of the article made it clear that Gemfields was not involved in the shooting of villagers who were left to die.
If the newspaper’s intention was to portray Gemfields and MRM in a neutral light, the story would have looked entirely different. Clearly, that was not the intention – as, in fact, is evident from the newspaper’s response to the complaint (that Gemfields “cannot escape all blame for the results from which it benefits”).
Regarding the first sidebar, the accusations and denials more or less evened themselves out; the second one mainly accentuated Gemfields’s strong South African roots, even though it is listed in London and is run from there.
Nothing much turns on either of these sidebars, except that both of them seemed to support the thrust of the main article (when read in context with that text).
The editorial based its comments and conclusions on the reasonableness of the main article, which means that it should also be interpreted in that light.
So then, the article portrayed the companies in a negative light. As such, there is nothing wrong with that – if the newspaper was justified in doing so, that is.
Reasonable?
Involved in the killings?
The question now is whether it was reasonable for the M&G to portray the impression that Gemfields and MRM were in some way or another involved in the killing of people in the area – or, more succinctly, to portray the impression that MRM was safeguarding an unethical monopoly through force by its security company; that it directed government forces to commit violent acts against people who had been mining illegally within the concession area; that it had, with the help of Mozambican forces, turned the region into a militarized zone; and that it had been using unwarranted levels of force to protect the concession.
Before I proceed, let me clarify the following: It is not my task to establish whether MRM was guilty or not – that is not for this office to decide as it does not fall within my mandate. I am not adjudicating the complainant, only the texts that were published by the M&G.
In this regard I shall be led by Judge J.A. Hefer’s judgment in the matter of National Media Ltd and Others vs. Bogoshi (ruling made in the Supreme Court of Appeal on 29 September 1998).
A relevant part of that judgment reads as follows:
|
My question, therefore, does not concern guilt or otherwise on the part of the complaining companies, but rather whether the newspaper was reasonable in reporting the allegations in the way it did.
I agree that the article broadly implied that MRM, and by association Gemfields, had been safeguarding an unethical monopoly through force by its security company which had been routinely committing acts of violence against local artisanal miners.
However, I have not been presented with any concrete evidence to this effect.
Yes, I have watched the programme on Al Jazeera with interest, and I have the deepest of sympathies with those who were killed, as well as with those who were left behind.
I also hold the newspaper’s right to freedom of expression in the highest esteem, as well as its duty to unravel what may lie behind the violence and killings in that area. The M&G is at the forefront of investigative journalism in this country, and my office should do nothing to discourage these efforts.
On the other hand, I also need to safeguard the public if and when necessary – a task that I perform with the same degree of enthusiasm.
Now, back to the question of whether the newspaper was justified in publishing those allegations in the way it did. The accusations were of an extremely serious nature – which obliged the M&G to verify, verify and verify before going to print. It is not for nothing that Section 1.7 of the Code of Ethics and Conduct states, “Where there is reason to doubt the accuracy of a report or a source and it is practicable to verify the accuracy thereof, it shall be verified…” (Emphasis added.)
I have said this before, but it is apt to repeat it now: The press is not entitled to publish allegations which are likely to unnecessarily tarnish someone’s reputation just because someone has made them – there has to be some reasonable ground for such accusations.
Having studied all the necessary documentation, I am convinced that, while the killings are not in dispute, the newspaper has not provided any evidence to back up the impression emanating from the article, namely that Gemfields and MRM were in some way or another involved in the killing of people in the area. (I am using the word “impression” deliberately.)
In these circumstances I have no option but to decide that, given the total lack of supporting evidence, the newspaper’s creation of such an impression was not justified.
During the course of my adjudication, the editor of the M&G sent me a note, saying that since its response to the complaint, the newspaper’s due diligence has exposed an error for which it needs to apologise.
This is inter alia what she wrote, offering an immediate apology:
“In a nutshell: The mining region’s attorney-general spoke of a number of convictions secured of security personnel involved in killings at the mine. Among others, he said an employee of the Arkhe security company (contracted by Gemfields) was convicted. It turns out that although we quoted him correctly, the attorney-general was mistaken, as a higher court found that there was insufficient evidence to connect the Arkhe employee to the killing. The killing itself is not in dispute.”
I appreciate this acknowledgement, as the higher court’s decision was available prior to publication.
In conclusion, I have little doubt that this negative portrayal of Gemfields and MRM was not reasonable, and that it has therefore unnecessarily and unfairly tarnished the companies’ reputation – and seriously so.
Section 3.3 of the Code of Ethics and Conduct is relevant here. It reads in full:
“The media shall exercise care and consideration in matters involving dignity and reputation. The dignity or reputation of an individual should be overridden only if it is in the public interest and in the following circumstances:
3.3.1. The facts reported are true or substantially true; or
3.3.2. The reportage amounts to fair comment based on facts that are adequately referred to and that are true or substantially true; or
3.3.3. The reportage amounts to a fair and accurate report of court proceedings, Parliamentary proceedings or the proceedings of any quasi-judicial tribunal or forum; or
3.3.4. It was reasonable for the information to be communicated because it was prepared in accordance with acceptable principles of journalistic conduct and in the public interest.
3.3.5. The article was, or formed part of, an accurate and impartial account of a dispute to which the complainant was a party.”
I do not have enough evidence to convince me that the M&G has adhered to any of the exceptions, as recorded above.
The headline
The M&G has argued that the introductory sentence (and the headline, for that matter) should not be read in isolation – meaning that the rest of the article has put matters in perspective.
On this issue, I have noted several times before that Judge Phillip Levinsohn would not agree with this argument. (See for example the finding in Helen Zille vs. The New Age, 30 June 2014.)
In 2013, Judge Levinsohn said in a Supreme Court case in Swaziland: “Many readers of newspapers simply glance at the bold headings only and then move on. The impression implanted in the mind of the reader by such blaring headlines is likely to be both deep and lasting. Most readers do not read the whole story…”
From this, it is fair to say that headlines should stand on their own and be interpreted as such.
I have asked Judge Levinsohn whether this interpretation was correct, to which he replied in the affirmative.
Zam Magazine
I have mentioned the ZM article here and there, for the sake of completeness. However, even though the very same journalists who wrote the relevant article may have authored a similar one in another publication, the fact remains that any complaint lodged with this office is against the publication, and not against journalists.
The M&G cannot be held accountable for what is published in another publication.
Material information disregarded
The issue is whether the M&G omitted material information which did not fit into its allegedly pre-conceived ideas (both regarding information the newspaper had received, but did not report, and information to which the complaining companies were not asked to respond).
Having perused the list of questions and responses at my disposal, I agree with the M&G that it was not practical to include all of those responses. I am satisfied that the omissions, as pointed out by Van den Berg, are not so serious as to warrant a finding against the newspaper on this issue, and that the article has covered the companies’ response sufficiently.
Gilbertson
The fact that Gilbertson did not complain, as noted by amaBhungane, did not relieve the newspaper from getting his employment history right.
I appreciate the newspaper’s admission that the article could have phrased this matter more clearly.
Finding
The M&G has without sufficient justification created the impression that MRM and by association also Gemfields were in some way or another involved in the killing of people in the area. This includes the impression that MRM was safeguarding an unethical monopoly through force by its security company; that it directed government forces to commit violent acts against people who had been mining illegally within the concession area; that it had, with the help of Mozambican forces, turned the region into a militarized zone; and that it had been using unwarranted levels of force to protect the concession.
The newspaper has relied on allegations by sources, and has not verified these allegations sufficiently (as admitted to by its editor regarding the charge against the Arkhe guard).
This is in breach of the following sections of the Code of Ethics and Conduct:
· 1.1: “The media shall take care to report news…fairly”;
· 1.7: “Where there is reason to doubt the accuracy of a report or a source and it is practicable to verify the accuracy thereof, it shall be verified…”; and
· 3.3: “The media shall exercise care and consideration in matters involving dignity and reputation…”
The rest of the complaint is dismissed.
Seriousness of breaches
Under the headline Hierarchy of sanctions, Section 8 of the Complaints Procedures distinguishes between minor breaches (Tier 1), serious breaches (Tier 2) and serious misconduct (Tier 3).
The breaches of the Code of Ethics and Conduct as indicated above are all Tier 2 offences.
Sanction
The M&G is directed to apologise prominently, in its publication as well as online, to MRM and, by association, also to Gemfields, for:
· creating the impression, without sufficient justification, that MRM and by association also Gemfields were in some way or another involved in the killing of people in the area. This includes the impression that MRM was safeguarding an unethical monopoly through force by its security company; that it directed government forces to commit violent acts against people who had been mining illegally within the concession area; that it had, with the help of Mozambican forces, turned the region into a militarized zone; and that it had been using unwarranted levels of force to protect the concession; and
· having relied on allegations by sources without sufficient verification.
The text, which should be approved by me, should:
- start with the sanction; and
- end with the 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.
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 Ombud