Appeal Hearing Decision: Mail & Guardian vs. Duarte Jessie
Background
1. This ruling is based on written submissions by the Mail & Guardian, and the ANC on behalf of Ms Jessie Duarte; and on a hearing of the Appeals Panel on the 20th June 2016 in Johannesburg.
The Mail & Guardian was represented by its Editor-in-Chief, Ms Verashni Pillay, by Messrs Stefaans Brummer and Sam Sole of the amaBhungane Centre for Investigative Journalism; and Mr Dario Milo of attorneys Webber Wentzel.
Ms Duarte, did not attend the hearing but was represented by Mr Krish Naidoo of the ANC.
2. The Mail & Guardian, was given leave to appeal a ruling of the Press Ombudsman, dated 15th April, 2016.
3. The Ombudsman’s ruling was based on complaints by Duarte against an article published by the Mail & Guardian in its edition of March 24 to 31, 2016, headlined, Parastatals in Gupta’s Web.
Ms Duarte complained that the article, which identified her, both in the copy and in a graphic, as having family connections (via her former husband and son-in-law) to people connected to the Guptas; was unfair.
She said she should not have been included in the report which was damaging to her because ordinary readers “would or could” conclude that she was in business and could be susceptible to influence to benefit the Gupta family.
There was no basis to include her in the article and the graphic which accompanied it, because “she is not a businesswoman and it is not stated, alleged or implied that she used or could use her position as Deputy Secretary General of the ANC to influence any decision…for the benefit of any party”.
Her family connections, while true, did not warrant her inclusion.
The Mail & Guardian said the article was published amidst public concern about so-called State capture by the Guptas and was in the public interest.
Their report carried a prominent disclaimer cautioning readers that: “The links are indisputable in some cases, and circumstantial and minor in others, and there is no evidence of the named directors and advisors doing anything untoward. But the power this network could wield adds significant weight to concerns about so-called State capture.”
What was written about Ms Duarte was already in the public domain and was in the public interest. She was given the opportunity to comment, and her comments were included in the article.
The Press Ombudsman, Mr Johan Retief, upheld Duarte’s complaint.
He found the Mail & Guardian in breach of Section 1.1. of the Code of Ethics and Conduct for South African print and online Media, which holds that: The media shall take care to report news truthfully, accurately and fairly.
He also found that the Mail & Guardian had breached Section 3.3 of the Code which holds that: The media shall exercise care and consideration in matters involving dignity and reputation.
He ordered the Mail & Guardian to apologise to Duarte “for having created the impression, unfairly, and without the necessary substantiation, that she had links with the Guptas that facilitated the potential use of her influence to the benefit of that family.
4. The Mail & Guardian appealed against the ruling.
On the 18th May, 2016, the Chair of the Appeals Panel of the Press Council of South Africa, Mr Justice Bernard Ngoepe, granted leave to appeal saying there were reasonable prospects that the Appeals Panel “may find that the Ombudsman’s basis for his ruling is too strongly put or that it was wrong in light of the Applicant’s defence”.
5. Accordingly the Appeals Panel of the Press council of South Africa heard the appeal on the 20th of June, 2016.
The Hearing
The Mail & Guardian:
1. Mr Milo, on behalf of the Mail & Guardian, said the Ombudsman had misdirected himself in ruling that the reportage breached the Code of Ethics, was unfair and caused unnecessary damage to Ms Duarte’s dignity and reputation.
2. The Ombudsman’s ruling had to be measured against how the courts had interpreted issues of the “reasonable reader” in defamation matters.
3. It also had to be judged against a similar Press Council of South Africa Appeals Panel ruling in the matter of the ANC vs The Daily Dispatch which was heard in November 2015. Mr Milo submitted that similar issues in that ruling meant it was inconsistent and contradictory for the Ombudsman to have ruled in favour of Ms Duarte.
4. He cited a number of instances of case law which he said provided “useful guidance” to the Appeals Panel on the issue of the reasonable reader.
In Channing vs South African Financial Gazette, the Court had held that the ordinary reader was a “reasonable”, “right-thinking” person, not of a “morbid and suspicious mind”, not “super-critical” or “abnormally sensitive”; and who would be assumed to have read the articles as “articles in newspapers are usually read”.
In Golding vs Torch Printing and Publishing Co, it was held that an ordinary reader does not jump to conclusions and that they read the article with reasonable care and give its meaning some thought.
Mr Milo said this interpretation had been upheld in Cele vs Avusa Media Ltd, where the court held that reasonable readers would read the article in context, including the headline and the images, rather than seizing on specific aspects.
5. He said the Mail & Guardian report had come with a prominent “health warning” in its disclaimer, and that this had been published in the third paragraph of the report. The reasonable reader would read the headline to the article, read the disclaimer, and would look at the graphic and the text.
The graphic had clearly depicted that Ms Duarte was not directly connected to the Guptas; but that her former husband and son-in-law had more direct connections to them.
Ms Duarte had been given the opportunity to comment on the report, and her comments had been published in full.
The Mail & Guardian had not alleged any malfeasance on behalf of Ms Duarte and had not defamed her. It had published what journalist, Mr Sam Sole, told the hearing was a report about “risk and red flags” that should be raised.
6. Mr Milo held that it was common cause that the matter was in the public interest and that Ms Duarte, the ANC Deputy Secretary General and a member of the organisation’s so-called “Top 6” was a public figure.
7. The article was “fair comment” and he said that to find against the Mail & Guardian would have the “chilling effect” of “censoring political speech”.
Ms Duarte:
1. Mr Krish Naidoo, appeared on behalf of Ms Duarte.
2. He said Ms Duarte did not dispute the relationship between the Guptas and State-owned enterprises or the business relationship between her former husband and son-in-law and the Guptas. Nor did she dispute that such articles were in the public interest.
3. Her complaint was about the relevance of her inclusion in the article and the graphic, and whether the ordinary reader would or could conclude that she could have exercised influence for the benefit of the business interests of the Gupta family, because of her links with her family members.
4. It was contradictory for the Mail & Guardian to seek to escape sanction because of the disclaimer; while justifying publication of her name on the grounds that it was in the public interest — because her powerful political positon enabled her to influence Government policy; and that she could presumably exert influence to benefit the Guptas.
5. He said no attempt had been made to categorise Ms Duarte, in terms of the disclaimer, as having “indisputable” or “circumstantial” or “minor” links to the Guptas.
6. Ms Duarte rejected as “spurious” the argument that she was not depicted as directly linked to the Guptas.
The Ombudsman had found the ordinary reader would have interpreted both the graphic and the text to mean that Ms Duarte was in some kind of relationship with the Guptas and that she was in a position to influence business decisions for the benefit of that family.
The Mail & Guardian’s defence that it was a “risk” or “red flag” article had already been dismissed by the Ombudsman, who said the caveats in the report “do not mitigate that she was portrayed as having had the potential” to act in a manner that was “untoward”.
7. Mr Naidoo said the “inuendos” could lead to the conclusion that Ms Duarte was a person of low morals, who would cross the line of morality, should the opportunity suggest itself.
8. He said the Ombudsman was correct in finding that Ms Duarte should not have been included in the article in the first place.
9. There was a “predominant, negative media bias” about the Guptas, and “ordinary, reasonable readers would consider any story about the Guptas in a negative light.” He added: “By association any person associated with the Guptas would be considered…persons with low moral(s) and dubious character, bordering on criminality”.
10. He cited case law different to that of the Mail & Guardian.
He noted that in Argus Printing & Publishing vs Esselen’s Estate, the Court had held that in determining the “natural and ordinary” meaning of words, “the Court must take into account not only what the words expressly say, but also what they imply”.
In Sindani vs Van der Merwe, the Court cited Lord Pearson, in an English case, as saying that the ordinary reader has no legal training and if he read the article at all would “skim through it casually and not give it concentrated attention, or a second reading. It is no part of his work to read this article, nor does he have to base any practical decision on what he reads there.”
11. Mr Naidoo added that the “headline” of the graphic which read, in part, “Relationship of political and parastatal players to the family” not only linked Ms Duarte to her former husband and son-in-law, but to the Guptas as well.
12. He submitted that the reportage on Ms Duarte was not justified and that the defence of her “family connections” did not warrant her inclusion in the article.
The Appeals Panel:
1. The Appeals Panel has considered the arguments by both the Appellant and the Respondent, the ruling of the Ombudsman; and both the majority and minority Appeals Panel rulings in the matter of the ANC vs The Daily Dispatch of November 2015.
2. We are convinced by the argument advanced by the Mail & Guardian.
3. Particularly, we think that the prominent “disclaimer” or “health warning” offered high up in the article (at paragraph three) would have had the effect of alerting reasonable readers to exercise due caution in ascribing “guilt” or “untoward behaviour” to Ms Duarte.
4. We note that this disclaimer specifically cross referred to the graphic published on page three, and that it acted as a “health warning” on that graphic as well.
5. We believe that the graphic fairly represented Ms Duarte.
It was differentiated with differently coloured lines, and she was shown only as connected to her former husband and son-in-law; who in turn were connected by different coloured lines to each other and to others who were connected to the Guptas.
Ms Duarte was not directly connected to the Guptas or to any of the other people portrayed in the graphic.
6. We debated the “headline” to the graphic, which read: “Linked to the Guptas” with the sub-head, Relationship of political and parastatal players to the family.
We noted the Press Ombudsman’s view that this headline “categorised her with people who had political relationships with the Guptas”.
We questioned the Mail & Guardian about the headline. Their response was that it was a general, bland label referring to everyone in the graphic, that it did not imply an untoward relationship; and that it should be read in conjunction with the disclaimer.
The panel studied the graphic and understood the headline to be linked to the explanation above in that it explained the types of relationships shown by the different lines in the graphic.
7. Ms Duarte is a senior member of the ANC, serving as its Deputy Secretary General, a member of the ANC National Executive Committee; and a member of its so-called Top 6.
Her family connections, and their connections to people connected to the Guptas are in the public interest.
Ms Duarte conceded, via Mr Naidoo, that the relationships depicted existed and that the matter was in the public interest.
8. Ms Duarte was given extensive information about the content of the article prior to publication and invited to comment. Her comment was used in full.
In it she confirms that she knows one of the people mentioned, a certain Malcolm Mabaso, saying “I have met him; he is an acquaintance of my son”; and then goes on to say: “I am not a partner or shareholder at Vumela”…(a company owned by her former husband).
The Appeals Panel noted that Ms Duarte could have commented more broadly on the allegations had she so wished.
1. In summary:
Ø there existed legitimate public interest in the issue of alleged State capture by the Guptas;
Ø there existed legitimate public interest in the connections to people connected to the Guptas by members of Ms Duarte’s close family (her former husband and her son-in-law and, by her own admission her son);
Ø such legitimate public interest is bound to spill over to her – given the high political office she holds.
2. However, the Appeals Panel notes:
Ø she was not accused of acting in a an untoward manner;
Ø the report in the Mail & Guardian clearly cautioned readers not to jump to conclusions and that this specifically included the graphic as well; and
Ø while we questioned the headline on the graphic, it needs to be balanced against the entire article.
Precedent:
1. The Appeals Panel studied the majority and minority rulings of the Appeals Panel in the ANC vs The Daily Dispatch matter of November 2015 to consider relevant precedent.
2. In the majority judgement that Appeals Panel noted that they wrestled with the concepts of “inference” and “insinuation”, a “popular and powerful journalistic tool, opposite the requirements of the Press Code and established precedents in South African law”.
3. The Panel also considered the degree to which, in the public interest, the dignity and reputation of public figures (and their families) can legitimately be linked to inferences of possible wrongdoing by those (figures) in their actual or perceived spheres of influence.
4. The Panel accepted the submission of the Daily Dispatch that neither the Press Code nor South African law hold the author of a factual article liable for any adverse inferences that are drawn by the reader. Critical to this defence is that the facts (not the inferences) must be verified.
It found, therefore, that the requirements of the Press Code in respect of dignity and reputation had been met – as the facts reported were true or substantially true.
Further, the majority of the Appeals Panel in that matter found the article to be fair comment and said it was reasonable for the article to be published because it was in accordance with acceptable principles of journalistic conduct and in the public interest.
5. The minority ruling similarly noted that counsel for the Daily Dispatch insisted that ‘if it is true it cannot be defamatory’ and that the law requires a complainant to ‘live with’ inferences that are ‘damaging to its reputation’.
6. However, it took issue with the Daily Dispatch headline, saying the reference to ‘ANC faces’ being behind a toilet-tender scandal did not have any substance beyond an actual family relationship; and that the Daily Dispatch agreed that no impropriety could be attributed to the ‘ANC faces’ on the basis of a family relationship.
7. We consider the precedent of the majority ruling helpful, particularly the submission that neither the Press Code nor South African law hold the author of a factual article liable for any adverse inferences that are drawn by the reader. Critical to this defence is that the facts (not the inferences) must be verified.
8. This precedent applies in this matter.
It is common cause that the facts reported about Ms Duarte’s family relationships were factual. Therefore, the requirements of the Press Code in respect of dignity and reputation had been met – as the facts reported were true.
9. The minority ruling falls to be disregarded in this matter, as contrary to the Daily Dispatch matter, no allegation of impropriety is alleged – in fact readers are specifically cautioned not to draw such a conclusion.
The Ruling of the Appeals Panel
1. The appeal succeeds and the Press Ombudsman’s ruling that The Mail & Guardian is in breach of Sections 1.1 and 3.3 of the Press Code is set aside. So, too, is his decision to order the publication to apologise to Ms Duarte.
Appeals Panel:
Mr Peter Mann Chairman
Ms Carol Mohlala Public Member
Ms Susan Smuts Press Member
