Dr Maiendra Moodley vs News24

SUMMARY

The headline to the story in dispute read, SSA DECLASSIFIED Rogue’s gallery: Those who stand accused of paralysing SA’s spy agency (published on 21 March 2022).

This ruling by Deputy Press Ombud Herman Scholtz was based on the Press Code that was in effect before 30 September 2022.

 

The headline was followed by an introduction stating, “The Investigative Directorate, the police and a private forensic firm are investigating a litany of alleged crimes that occurred at the SSA over nearly a decade. Millions of rands were stolen, laws were broken. But those who perpetrated the alleged crimes are still at large.” The article was about members of the SSA who had fleeced the agency of billions under the guise of phoney intelligence-gathering operations, parallel projects and illegitimate recruitment processes that saw dubious individuals handed the power to spy on South Africans.

The essence of Maiendra Moodley’s complaint was that there was no justification to include him in the article as he did nothing wrong. He also objected to being called a “controversial figure” and argued that, by using his photo with the story, the reasonable reader would have associated him with crimes. He also noted that the story was published behind News24’s paywall, which meant people who were not subscribed would not have been able to read the entire article.

Scholtz noted that the article did not accuse Moodley of criminal offences. Yes, the first paragraph focused on a “litany of alleged crimes”, but the rest of the article threw net much wider, inter alia to extend to intelligence operations reaching into the political realm. Scholtz opined that the reasonable reader would have placed the allegations against Moodley firmly within the latter category. He also motivated why it was fair to refer to Moodley as a “controversial figure”.

The Ombud said the public portions of behind-paywall content had to be considered on principles like those applicable to headline posters of traditional newspapers or social media “teasers”. He concluded that the teaser was not in breach of the Press Code.

Scholtz also dismissed Moodley’s complaint that:

• his privacy was invaded, that he had never authorised the use of his image, and that his security was compromised when it was also stated that he was employed by the SSA. The Ombud noted that Moodley was a public official and that the matter was in the public interest. Besides, Moodley had givenconsent to other websites to publish his photo – which meant that that his picture had already been in the public domain; and
• he was effectively denied the opportunity to respond. The Ombud noted it was common cause between the parties that a journalist approached him via WhatsApp for comment.

 

THE RULING ITSELF

Ruling by the Deputy Press Ombud

Date of articles:                     21 March 2022

Headline of publication:       “SSA DECLASSIFIED Rogue’s gallery: Those who stand accused of paralysing SA’s spy agency”

Authors:                                 Azarrah Karrim, Kyle Cowan, Jeff Wicks, and Sipho Masondo

Particulars

1. Dr Maiendra Moodley is the complainant.
2. Both Moodley and News24, through George Claassen, made extensive written submissions on which the ruling is based.

Background

3. As the headline to the article implies, News24 took a closer look at the paralysis at the State Security Agency (“SSA”).
4. The headline is followed by a sub-headline or introduction stating:

“The Investigative Directorate, the police and a private forensic firm are investigating a litany of alleged crimes that occurred at the SSA over nearly a decade. Millions of rands were stolen, laws were broken. But those who perpetrated the alleged crimes are still at large.”

5. Next up is a gallery of faces, including silhouettes of three anonymous figures. Moodley’s picture is one of the faces.
6. The article begins by stating:

“For years under former president Jacob Zuma’s tenure, members of the SSA fleeced the agency of billions under the guise of phoney intelligence-gathering operations, parallel projects and illegitimate recruitment processes that saw dubious individuals handed the power to spy on South Africans.

“These activities occurred under the leadership of a handful of key officials and executives. They saw intelligence operations reach into the political realm and executive interference in operational activities allegedly for the benefit of one man – Zuma.”

7. Without digressing too much, the “alleged rogue actors” include former SSA Director-General Arthur Fraser, former SSA bigwig Thulani Dlomo, former State Security Ministers Ayanda Dlodlo, Bongani Bongo, and David Mahlobo, amongst others.
8. Enters Moodley as alleged “rogue actor” number 6 of 10. News24 reports the following about Moodley:

8.1 He is employed as deputy coordinator for the National Intelligence Co-ordinating Committee (NICOC), which was allegedly appointed to by former SSA Minister Ayanda Dlodlo. Moodley acted as coordinator of the NICOC at a stage.

8.2 “Moodley is a controversial figure. In 2019, News24 and amaBhungane revealed that he had been seconded to the SSA from SITA. During a meeting with Public Protector Busisiwe Mkhwebane, he had handed her a typed note containing the proposed wording for a change to the Constitution to alter the mandate of the Reserve Bank.”

8.3 “Mkhwebane included the wording verbatim in her CIEX/Absa life board matter report. She has been charged with perjury for allegedly lying to the courts during litigation seeking to set aside her report.”

The complaint

9. Moodley identifies the following clauses of the Press Code as the bases for his complaint:

“The media shall:

1.2 Present news in context and in a balanced manner, without any intentional or negligent departure from the facts whether by distortion, exaggeration or misrepresentation, material omissions, or summarization;

1.3 Present only what may reasonably be true as fact; Opinions, allegations, rumours or suppositions shall be presented clearly as such.”

10. In further submissions, the complainant also raises the issue of privacy as the “use of (his) image was never authorised”. This effectively invokes Clause 3 of the Press Code enjoining journalist to exercise care and consideration in matters involving the private lives of individuals.
11. Although it is common cause that News24 approached Moodley for comment before publication, the complainant says he was effectively denied the opportunity to respond due to several legislative prescripts governing South Africa’s intelligence services. I therefore include Clause 1.8 of the Press Code, being the duty to seek pre-publication comment from a subject of critical reportage in the complaint.

Analysis

Privacy

12. The complaint in this regard states:

“Their use of my image was never authorized by myself and is an invasion of my privacy. I submit that to the extent that these images were sourced from other websites, that these websites had my consent to use my image which News 24 did not. This effectively compromises my security when it is also stated that I am an employee of the State Security Agency.”

13. Moodley further quotes sections of the General Intelligence Law Amendment Act 11 of 2013 and the Intelligence Service Act 65 of 2002 about unauthorised disclosures of identities of members of the SSA.
14. The latter can be dealt with summarily. This office has repeatedly held that the Press Ombud is not a court of law considering alleged statutory transgressions. In Mathys v EWN (complaint 8980, 7 July 2021), where the complaint was an alleged transgression of the National Health Act 61 of 2003 by disclosing patient information, it was held:

“The Press Council is not a court of law. The Ombud cannot make a ruling on whether any party is guilty of criminal, unlawful, or unconstitutional conduct. This is the domain of the courts. The Press Council will only enforce the Press Code and pronounce on matters of ethics.”

15. Moodley is a public official. His involvement with the SSA might be somewhat cloaked in mystery but he was at all relevant times also a senior public official at SITA, the government’s information technology agency.
16. Furthermore, it is apparent from Moodley’s complaint that other websites had Moodley’s consent to publish his photo to the public at large. There cannot be a reasonable expectation of privacy from a public official – at least to visual identification through a photograph – whose picture is already in the public domain. “Authorisation” to republish a picture might be relevant for copyright considerations but not in deciding whether privacy is infringed.
17. Clause 3 of the Press Code makes provision for the overriding of a right to privacy by public interest. The subject matter of the report, being the paralysis of the SSA, is in the public interest.
18. This part of the complaint must fail.

Comment

19. It is common cause between the parties that a journalist approached Moodley on 18 March 2022 via WhatsApp for comment. The questions were detailed and every material allegation was highlighted to Moodley for his response. In particular, the journalist stated:

19.1 “News24 is working on a series of articles regarding allegewrongdoing and corruption at the State Security Agency. This includes allegations made against yourself in the media.”

19.2 “In 2019, News24 and AmaBhungane reported that you had been seconded to the SSA from SITA, and during a meeting with Public Protector Busisiwe Mkhwebane you handed her a typed note containing the proposed wording for a change to the Constitution to alter the mandate of the Reserve Bank. Is this correct? What is your response?”

19.3 “Mkhwebane went on to include the wording verbatim in her report on the CIEX/Absa life board matter and was subsequently charged with perjury. News24 and AmaBhungane reported at the time that the attempt to change the mandate of the SARB was perceived as a direct attack on the institution and that the SSA’s apparent involvement, through yourself, in attempting to change the SARB mandate, constituted potential evidence of an SSA operation against the SARB. What is your response to this?”

20. Moodley forwarded the request for comment to Mava Scott, spokesperson of the SSA.
21. Scott is indeed quoted in the article, but in general terms. The agency cannot comment on individuals, Scott said, but “the Minister in the Presidency responsible for State Security issued a statement a few days ago reiterating the commitment of the Agency to investigate and prosecute all acts of misconduct, fraud and corruption uncovered in various investigative reports such as the Mufamadi report, the Prof Sandy Africa report on the July unrest and the Zondo Commission among others”.
22. Says Moodley: “The obvious question would be is why I have not answered (News24). I cannot answer them as a I do not have the authority to do so. The journalists know this…If I did answer these questions, I would be potentially guilty of violating the rules relating to media engagement and would be disciplined.”
23. Claassen points out that News24 first contacted Moodley on 14 December 2019 about the Public Protector meeting and subsequently published an article with those allegations without any complaint from Moodley. The latest publication was merely a re-publication. He also said in a response directly to Moodley that the latter had a full opportunity to respond to the allegations prior to the most recent publication but did not respond. “The audi alteram partem principle, as required by the Press Code, therefore was applied fairly and diligently by News24 before publication”.
24. News24’s stance is fair. The internal workings of the SSA and protocol of engagement with journalists cannot be used as a shield to say the audi alteram partem principle was breached and that Moodley was not afforded a fair opportunity to respond.
25. In Ramatlakane v Sunday Times and TimesLive (complaint 9443, 17 May 2022), it was held:

“A subject of critical reportage who is afforded an opportunity to respond to allegations also has a measure of responsibility to clarify bona fide misunderstandings. This is particularly applicable when a subject believes the allegations being posed to him or her is factually incorrect. If a subject – despite his or her belief that the journalist has the wrong end of the stick – chooses not to respond, to be sketchy in his or her response, or even to lead a journalist down the garden path where there was a real misapprehension, he or she does so at their own peril.”

26. If a person is constrained by the terms of his or her own employment contract, policy on media engagement, or even legislation, it does not mean that he was not afforded a fair opportunity by the media institution. Moodley’s plight in this regard should have been taken up with Scott or the leadership with the SSA. There is no suggestion that he could not have followed up with Scott to ask what would be answered on his behalf and to request the inclusion of his response via the official media spokesperson.
27. It is noteworthy that Moodley, in his submissions to the Press Ombud, responds elaborately to the allegations posed to him in the WhatsApp from the journalist. He ought to have done so from the outset.
28. Although it is not explicitly part of the complaint before me, and I subsequently make no finding in this regard, I would be remiss for not commenting on the fact that the News24 article made no mention of the pre-publication comment sought from Moodley. This is regrettable. As was pointed out in Gemfields Ltd and Montepuez Ruby Mining Limitada vs The Continent and Mail&Guardian (complaint 9294, 14 February 2022), the obligation to seek pre-publication comment serves a far bigger purpose and function than to treat subjects of critical reportage fairly or to eliminate bona fide misunderstandings. It also bolsters public trust in the quality of journalism where it is shown to readers that the subject was given an opportunity to respond, even where there was no response.

Context

29. The bulk of Moodley’s complaint is an alleged breach of Clauses 1.2. and 1.3. of the Press Code.
30. The essence of Moodley’s complaint may be summarised as follows:

30.1 There is no justification to include him in the article as he a) did nothing wrong, and b) the allegations levelled against him has nothing to do with crimes committed at and/or the paralysis of the SSA.

30.2 There is no justification to label him a “controversial figure”.

30.3 By using his photo with the story, the reasonable reader associates him with crimes.

30.4 The story is behind News24’s paywall. Members of the public would not be able to read the entire article. Those readers are being misled by seeing his picture and only a selected except of the article. This is a distortion of facts.

31.  Claassen’s main responses are:

31.1 The allegations were already previously published on News24.

31.2 Moodley was nevertheless afforded another opportunity to respond prior to publication.

31.3 The article was a “comprehensive list of those implicated in bringing the SA into disrepute.” Interference with the Public Protector investigation into the Reserve Bank constitutes such disrepute.

32. I will first deal with the article as published for News24 subscribers.
33. It is quite clear from the article as a whole that the report was not purely about “a litany of crimes committed” and “millions of rands stolen, (and) laws broken” as the sub-headline stated. The report also focused on the paralysis of the SSA in general, as the main headline stated, and “the agency’s politicisation, which was allegedly repurposed to serve the interests of Zuma” as the Mufamadi report reportedly found.
34. Several of the people in the article – including Moodley – are not accused of specified criminal offences. The majority are not accused of involvement with theft. However, the golden thread in all the identified role-players is that they all allegedly had a role in paralysing the SSA and allowing inappropriate interferences – political or otherwise – at the SSA.
35. The Ombud and Appeals Panel have consistently applied the test of the “reasonable reader”, being the well-known construct of a reader that is not overly critical, sensitive, or suspicious, to interpret the meaning derived from an article. In Mail & Guardian vs Duarte (21 June 2016) the Appeals Panel further accepted that reasonable readers read an article as a whole. A reasonable reader will therefore read the headline, look at the pictures, read the caption(s), and the article itself in forming his or her opinions.
36. While it is correct that the first paragraph of the article focuses on a “litany of alleged crimes”, the headline and remainder of the paragraphs throw the net much wider. From paragraph two, the subject of the article is extended to “parallel projects”, “illegitimate recruitment processes”, “intelligence operations reach(ing) into the political realm”, etc.
37. In my view, the reasonable reader would place the allegations against Moodley firmly within the latter category. Any reasonably informed reader is aware of the controversy surrounding the Public Protector’s ABSA/CIEX report and the alleged involvement of the SSA in that saga only adds fuel to the fire.
38. The structure of the article in question is also relevant. Each alleged role-player is identified in a separate section with a breakdown of their alleged involvement in the paralysis of the SSA. The allegations are compartmentalised, and a reasonable reader will know that the allegations levelled against Thulani Dlomo, for example, is not ascribed to Moodley or any of the other identified individuals.

39. Read as a whole, there is no distortion of the facts. There is also no suggestion that allegations were presented as fact.
40. With regards to the reference to Moodley as a “controversial figure”: It is fair to say that unanswered allegations of a high-ranking official associated with the SSA handing a typed note to the Public Protector on the proposed wording to change the mandate of the Reserve Bank makes him a controversial figure. I haste to add that Moodley has provided a reply in excess of 2500 words. The bulk thereof gives an exculpatory explanation for the meeting with the Public Protector, his involvement as an IT expert as opposed to an “economist”, and the involvement of the SSA with the Public Protector’s investigation. The Press Ombud is not a media institution and does not publish news. These explanations are to be provided to media institutions who sought his clarification on the issues. It appears as if News24 was not in possession of these allegations at the time of publication. It therefore cannot have a bearing on my consideration of whether it was fair to describe Moodley as controversial or not.
    .
41. Finally, the aspect of News24’s paywall needs consideration. Moodley is correct in stating that readers who are not subscribed to News24 would not be able to read the entire article. This part of the complaint stands on a different footing. It is an important consideration given the increasing trend of media institutions to set up paywalls.
42. In my view, the public portions of behind-paywall content must be considered on principles similar to those applicable to headline posters of traditional newspapers or social media “teasers”. Each one of those publications is an independent publication which must comply with the prescripts of the Press Code, specifically Clause 10:

“Headlines, Captions, Posters, Pictures and Video/Audio Content

10.1 Headlines, captions to pictures and posters shall not mislead the public and shall give a reasonable reflection of the contents of the report or picture in question.”

43. In selecting the headlines, pictures and excerpts to accompany the “teaser” to be viewed publicly, publications must be alive to the fact that many readers will only see that portion of the article and the public portion must be a reasonable and fair reflection of the contents.
44. I now consider the “public portion” of the article. It contains:

44.1 The same headline, being: “SSA DECLASSIFIED. Rogue’s gallery: Those who stand accused of paralysing SA’s spy agency.”

44.2 A picture of the gallery.

44.3 A caption to the picture, which reads: “Rogue’s gallery: Those who stand accused of paralysing SA’s spy agency”

44.4 A single paragraph in progressively faded font. It reads: “The Investigative Directorate, the police and a private forensic firm are investigating a litany of alleged crimes that occurred at the SSA over nearly a decade. Millions of rands were stolen, laws were broken. But those who perpetrated the alleged crimes are still at…(ineligible)”

44.5 An invitation to subscribe to read the remainder of the article and a free 14-days trial subscription.

45. None of the individuals in the “rogue gallery” are identified by name, but only by picture. Some of the faces are more recognisable to the news-consuming public than others.
46. A “teaser” in this form faces the same constraints as a social media teaser or newspaper poster. It naturally cannot include the entire article. Nor can it provide detailed context.
47. It is for this reason that Clause 10 places only two obligations on content of this type: It must not mislead and must give a reasonable reflection of the contents.
48. The teaser is a reasonable reflection of the contents of the article. The article summarises allegations against individuals accused of “paralysing SA’s spy agency”, as the headline and caption state.
49. The only question is whether the single introductory paragraph is misleading. In my view, the paragraph is couched in wide and broad enough terms to include the allegations of political and executive interference by the SSA for the following reasons:

49.1 As pointed out by News24, the ABSA/CIEX controversy speaks to the constitutional mandate of the SSA, whether that was breached, and therefore whether laws were broken.

49.2 The alleged politicisation of the SSA is central to the allegations now being investigated by a range of authorities and organisations, as the report highlights.

50. It follows that the teaser did not mislead the public and gave a reasonable reflection of the contents of the article.

Conclusion

51. For the reasons given above, the complaint stands to be dismissed.

Appeal

The Complaints Procedure lays 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].

Herman Scholtz

Deputy Press Ombud

13 June 2022