Noeleen Maholwane-Sangqu vs. Sunday Sun

This ruling is based on the written submissions of former talk show host Noeleen Maholwana-Sangqu, and those of Johan Vos, deputy editor of the Sunday Sun newspaper.

Maholwana-Sangqu is complaining about a story in Sunday Sun of 14 August 2016 headlined, Noeleen’s ‘collapse’ – ‘She needs something to keep her busy’.

Complaint

Maholwana-Sangqu complains the story falsely stated that she had been:

·         admitted to hospital (Rosebank Clinic) for six days; and

·         suffering from stress, migraine and high blood pressure.

The text

The story, written by Theo Nyhaba, said that Maholwana-Sangqu allegedly suffered a serious health scare – sources allegedly said she had collapsed and was rushed to Rosebank Clinic, where she was treated for six days.

According a source, Maholwana-Sangqu was told she was suffering from complications caused by high blood pressure. Another source said she suffered from stress and migraine.

Maholwana-Sangqu reportedly denied all of these allegations.

The newspaper’s response

Vos argues that the:

·         story was in the public interest as Maholwana-Sangqu is a former talk show host who has been in the limelight for several years;

·         article has recorded Maholwana-Sangqu’s denials;

·         newspaper has used three reliable sources; and

·         journalist has attributed the allegations to these sources.

Vos has supplied me with the names and telephone numbers of these sources, on condition of anonymity, adding that he has information that he would like to reveal to me with regards to these sources.

He concludes, “Due to the credibility of our sources, we had reason to believe that the article is reasonably true and therefore [we] decided to publish.”

Analysis

Before coming to the question of whether sufficient reasonable grounds existed to accept the story as true, I first need to deal with the question of whether someone’s medical state may be disclosed by the media in the first place.

Fully cognizant of the fact that this office is not a court of law, I am nevertheless first mentioning Clause 14 of the National Health Act, 61 of 2003.

This clause states that all information concerning a patient, including information relating to his or her health status, treatment or stay in a health establishment, is confidential – no person may disclose any such information unless the patient consents to that disclosure in writing (or when such disclosure is required by law or if non-disclosure represents a serious threat to public health – both of which instances are not relevant to this case).

Turning now to the Code, Section 3 and 4 are relevant:

Section 3.1 reads, “The media shall exercise care and consideration in matters involving the private lives and concerns of citizens. The right to privacy may be overridden by the public interest.”

Section 4 is headlined, Protection of Personal Information. Sub-section 4.1 states, “For the purpose of this clause ‘personal information’ is as defined in Section 1 of the Protection of Personal Information Act 4 of 2013.”

This Act defines “personal information” inter alia as meaning “[I]nformation relating to an identifiable, living, natural person … including, but not limited to — (a) information relating to … physical … health, well-being… [and] (b) information relating to the … medical history … of the person…”

My first considerations are of a more general nature:

·         Based on Clause 14 of the National Health Act, 61 of 2003, the newspaper’s reportage of Maholwana-Sangqu’s medical state may well have been illegal;

·         Because this office is not a court of law, I am not mandated to decide whether it was illegal or not;

·         The Code does allow for illegal reportage (the document focuses on ethics, not on the law!) – on certain conditions, though (see for example Section 1.4); and

·         I need to take the second sentence of Section 3.1 seriously, which makes provision for the publication of private information when the right to privacy is overridden by the public interest.

I now focus on the specifics of Sections 3 and 4 of the Code. Not only am I interested in what these state, but also in what these sections do not say.

Firstly, I am not convinced at all that the Code itself prohibits the disclosure of all medical conditions – as Section 3 progresses, some instances are singled out, namely rape survivors, survivors of sexual violence, and the status of people living with HIV/AIDS (which should not be disclosed without their consent).

These are serious matters which (rightly or wrongly) carry some sort of stigma – a fact which indicates to me that other, less serious medical conditions may be treated differently. It would be ridiculous, for example, to prohibit the media from saying that someone (a member of a sports team, say) is suffering a bout of influenza.

After Section 4 states that it follows the definition of “personal information” in the POPI Act, it further says (inter alia):

·         The media should take reasonable steps to ensure that such information is protected from misuse;

·         The media should ensure that such information is accurate; and

·         Where it is reasonably suspected that an unauthorized person may have obtained access to personal information, the media must take reasonable steps to mitigate any prejudicial effects.

So now, it is time to put these considerations into a pot, let them blend – and produce an outcome which takes reasonable account of them all.

(This outcome only reflects my initial question, which is whether the media are at liberty to disclose medical information in the first instance – I shall come to the issue of the accuracy of the reportage shortly.)

Again, as so often in the past, I shall be led by the following words in the Preamble to the Code:

·         “The media’s work is guided at all times by the public interest, understood to describe information of legitimate interest or importance to citizens”; and

·         “As journalists we commit ourselves to the highest standards, to maintain credibility and keep the trust of the public. This means always … avoiding unnecessary harm…”

Because Maholwana-Sangqu is public figure, I cannot blame the newspaper for reporting that she was in hospital. Also, it is not reasonable to believe that such reportage might have caused her unnecessary harm.

This leaves me with the question regarding the specifics of Maholwana-Sangqu’s medical status.

Again, there is no specific stigma attached to either stress or migraine, which leads me to believe that such reportage was not likely to have caused her unnecessary harm – and further leads to the conclusion that, in principle, Sunday Sun was justified in reporting these matters.

The next issue is whether the newspaper was justified in believing that its story was “reasonably true”.

Vos is correct in saying that all the information in the story was ascribed to sources, and no statement of fact has been made.

That in itself, though, does not safeguard a publication, as allegations may be totally groundless and even defamatory.

The issue at hand, therefore, is the question of just how reliable these sources were. I am satisfied that the newspaper had enough to go on to publish its information as allegations.

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 Ombud