Appeal Decision: Colin Gabriel vs The Herald

SUMMARY

The complaint was about nine stories. The headline to the first one read, Bay radio presenter arrested for stalking – Kingfisher FM employee to be charged with sexual assault after ‘phone threats’ (published on 26 August 2015).

This ruling by the Chair of the Appeals Panel Judge Bernard Ngoepe was based on the Press Code that was in effect before 30 September 2022.

The articles were about Colin Gabriel who allegedly had sexually stalked a female student. The women laid a charge against him, which led to his arrest – but the charge was eventually withdrawn.

The gist of Gabriel’s complaint was that the reportage was misleading in that he falsely had been called an alleged stalker, that he had allegedly threatened to rape a female student, that the newspaper did not ask him for comment, and that the reporting was malicious and damaging of his reputation.

Retief dismissed the bulk of the complaint, mainly because the:

• journalist merely reported what was written on the charge sheet. If there was a mistake in that document, it surely was not the newspaper’s fault; and
• use of the words “alleged stalker” was justified – the word denoted a person who harassed another person over a period of time, often sexually, in an aggressive, often threatening and illegal manner. The mere fact that the student had laid a charge against Gabriel showed that (to her) his attentions were unwanted and threatening.

The Herald was cautioned for inaccurately stating that police officers walked into Gabriel’s offices and asked for him and was directed to correct this statement.

Gabriel then applied for leave to appeal.

Judge Ngoepe endorsed the Ombud’s findings and added inter alia that:

• the articles consistently reported the allegations as allegations, and not as facts; and
• Gabriel was a public figure, and the gross allegations made against him were in the public interest.

THE RULING ITSELF

In the matter of

COLIN GABRIEL                                                                                         APPLICANT

AND

[1]     Mr Colin Gabriel (“applicant”) lodged an appeal against the Herald (“respondent”) in respect of a number of articles and their headlines, which were run over a few days.  The stories, in essence, were about certain allegations against the applicant, then a radio presenter, that he had stalked a young woman, and also threatened to sexually assault her.  The applicant was in fact charged and appeared in court.  Thereafter, upon representations by his attorney to the prosecution authorities, the charges were dropped.

[2]     In his Ruling, dated 14 March 2017, the Ombud summarized applicant’s complaints as follows:

“In general, Gabriel complains that the reporting was inaccurate, unfair, unjustified, malicious and damaging towards his reputation.  The gist of his complaint is that the reportage was misleading in that he falsely had been called an alleged stalker and had allegedly threatened to rape a female student; and that the newspaper did not ask him or his attorney for comment.  He also complains that several other statements were false and / or misleading”.

The Ombud then went on to state the complaints in more details.  The complaints, in respect of the articles, are captured by the following statement by the applicant himself:

“The thread of commentary which ran through the piece violated the tenets of truthful, accurate and fair reporting. The Herald did not contact my attorney or myself for any comment.

In my view, the article was motivated by the publisher’s commercial, personal and non-professional interests or that it allowed these interests to influence the slant of the reporting.

In my view, I believe that the reporter intentionally departed from the facts with malicious intentions.

In my view, this is defamatory reporting that is unjustified.

In my view, the article is defamatory reporting that are unjustified, malicious and extremely damaging towards my reputation.

It is important to note the complainants father is the Managing Director of Iron Man South Africa and has business ties with the Herald.  I believe that there is a clear conflict of interest and breaches the wall of which should exist between commercial and editorial interests in a media institution and which the code seeks to entrench”.

These complaints were again summarized by applicant’s legal representatives, and demanded “an apology for the unfair manner in which (the respondent) reported on this news story.” They pointed out that applicant was described as a sexual predator, and that respondent failed to get comment from him, family or legal representative; in this respect, they referred to certain unsavoury utterances allegedly made by their client.  What needs to be pointed out at once, is that those words were contained in, and thus came from, the charge sheet, which the applicant failed to submit to the Ombud.

[3]     The respondent’s response was, essentially, that the word “stalking” was justified.  It pointed out to the Oxxford Dictionary meaning of the word “stalk”, which, inter alia, means harassing with unwanted obsessive attention.  In other words, one need not physically follow up the complainant; one can even telephonically “stalk” a person.  Regarding alleged failure to contact applicant’s attorney, respondent said that the Press Code did not make any provision for that. So as not to return to the point of prior contact, it should be mentioned that as the respondent was relying on court papers, there was no need to contact the applicant.

[4]     In his Ruling, the Ombud dismissed all the complaints barring one.  He held that by stating that “police officers walked into Gabriel’s offices and asked for him – was inaccurate and in breach of Section 1.1 of the SA Code of Ethics and Conduct;” that is, failure to report news accurately. In other words, the Ombud accepted applicant’s version that he was arrested at a shopping complex and not at his office. The Ombud then imposed a sanction.  The applicant now seeks leave to appeal the above Ruling.

[5]     For the application to succeed, the applicant must show reasonable prospects of success before the Appeals Panel.  I have considered the Ombud’s reasons, which I endorse, and come to the view that the applicant has no such prospects.  To the Ombud’s reasons, I add the following: Throughout the articles, the respondent dutifully described whatever was reported of the applicant as being “allegations”; secondly, he was not identified; thirdly, it is noticeable that the applicant in all his responses, hardly ever put across his own version, if at all.  The applicant is, and indeed describes himself as, a public figure.  For him to have said (as per charge sheet) to the young woman that I would “mount you like a horse” and “have forceful sex” with you, called for publication.  For the reasons given by the Ombud, and those I mention above, I am of the view that the applicant has no reasonable prospects of success before the Appeals Panel.  In fact, I think that the Ombud’s finding in favour of the applicant that respondent breached Article 1.1 of the Code, may argueably be rather gratuitous to the applicant. The finding was on the basis of the narrow finding by the Ombud that the respondent wrongly stated that the applicant was arrested at his employer’s offices, whereas, according to him, the arrest was at a shopping mall. Firstly, respondent says it had gotten the information from the employer; secondly, and in any event,  given the fact that germaine facts are not in dispute, I see no material consequence to respondent’s alleged misreporting on the issue. If there was any such consequence, this did not come out in the applicant’s complaint.

[6]    For the reasons given above, the application is dismissed.

[7]     Finally, I would like to appologize to the parties that it took long to issue this Decision. This was because the application escaped my attention on the computer; as a result, I only realized much later that the pappers were firstly, missing and, later, incomplete. Furthermore, inbetween, I went abroad for just over a week.

Dated this 1^st day of June 2017

Judge B M Ngoepe, Chair, Appeals Panel