Appeal Panel Decision: Sunday Times vs. Jean-Yves Ollivier

SUNDAY TIMES                                                                                          APPLICANT

AND

[1]     The Sunday Times (“appellant”) appeals against the Ruling of the Ombudsmen dated 11 June 2015. The Ruling was on complaints lodged by Mr Jean-Yves Ollivier (“respondent”), emanating from articles by the appellant published on 13 February 2015.  A heading on the front page read: “Threat to gag us over hidden Swiss billions.”  In general, the story was that people were stashing billions of American dollars in secret Swiss accounts with the HSBC Bank.  A number of South Africans and non-South Africans were mentioned, with varying amounts.  Respondent was one of those mentioned; not as a South African, but as someone with connections with the country.

[2]     The Ombudsman dismissed all the complaints, except two related ones: he found that the appellant had acted in breach of articles 2.1 and 2.2 of the Press Code.  The articles read:

“2.1   The press shall take care to report news truthfully, accurately and fairly;

2.2    News shall be presented 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 summarisation.”

[3]     The portion referring to the respondent, which forms the basis of his complaints and which informed the Ombudsman’s Ruling, reads:

Another account holder linked to South Africa is Algerian-born Frenchman Jean-Yves Ollivier, who styles himself as a diplomat ‘of influence, making use of my personal relationships with heads of state and political leaders to facilitate peace negotiations.’

Ollivier, the only foreigner to be awarded honours by South Africa’s government, played a role in Nelson Mandela’s release from prison.

He is linked to 10 HSBC accounts, two of which held $707,7619 in 2007.  His spokesman said Ollivier ‘became resident in Switzerland in 1994 [and] has paid all taxes due’ “.

The gist of the respondent complaint was that the article lumped him together with people of dubious character, involved in money laundering, corruption and tax evasion.  The implicated part of the report reads: “This week, shocking evidence emerged of more than 100,000 clients of HSBC internationally, who included tax dodgers, drug dealers and government officials who used the secret Swiss accounts to launder cash and hide money.”  Immediately after this, the article went on to mention a few people describing them in negative terms, before coming to the respondent as per the paragraph quoted above.

[4]     In his Ruling that the appellant violated articles 2.1 and 2.2, the Ombudsman had regard to the context in which respondent was mentioned; it was a matter of the interpretation of what was said about the respondent.  His finding was that the article lumped respondent together with the miscreants.  Counsel for the respondent was therefore correct, in his heads of argument, to say that “the only issue before this tribunal is … whether the finding by the Press Ombud that the Sunday Times breached sections 2.1 and 2.2 of the Press Code was correct ….  The main issue in this appeal is therefore the interpretation of the article and the interpretation of the references to Ollivier in the broader context of the article.”

[5]     The matter is therefore about the interpretation of what was said of the respondent, given the context.  It was argued for the respondent that regard being had to the third paragraph of the article, which spoke of “shocking evidence” as also to the fact that reference was made to drug dealers, money launderers etc, the mentioning of respondent painted him as one of such people.  It was argued that a reasonable reader would not go into the minor details of the article (some of which did not implicate respondent); that, because a reasonable reader does not go into such details, the impression the reader would have would be that respondent was one of the miscreants.  Counsel for the appellant argued the opposite.  Referring to the portion specifically mentioning the respondent, he submitted in his heads of argument that “there is nothing in this account which is untrue, inaccurate or unfair.  No material facts have been omitted”.  As the matter turns on the interpretation of what was said, we must look at the entire story so as to establish the context.

[6]     We are of the view that, regard being had to the context of the article, what was said of the respondent did not breach articles 2.1 and 2.2 of the Press Code.

6.1    The opening two paragraphs of the article refer to the “list of South African clients”, who allegedly “stashed R3-billion on secretive Swiss bank accounts”.  It is common cause that respondent is not a South African; he cannot therefore automatically be understood to be implicated in these paragraphs.

6.2    The third paragraph speaks of “shocking evidence” of many international clients of the bank “who included tax dodgers, drug dealers … who used the secret Swiss accounts to launder cash and hide money.” Thereafter follow a few paragraphs which refer to correspondence with the bank’s lawyers, the South African Revenue Authority, as also to the person who had allegedly stolen the bank’s secret information.  Only thereafter does the article return to South Africans.  It dealt with Fana Hlongwane, Jeff Wiggill, and then Julian Askin before coming to the respondent.  All the above three South Africans are cast as miscreants.  It was only after dealing with those three South Africans, that the article moved onto the respondent, who is for that matter not a South African (a point which already sets him apart from them). Counsel for the respondent argues that there should have been a clear dividing bright light between these three South Africans and the respondent; failure to do so has resulted in him being seen in the same category. This cannot be correct Firstly, each person is described in his own box.  They are compartmentalized; this is also clear from the fact that details of the personal history of each are given.  There is no question of what being said about the one overlapping onto the next.  An average reader would each time realize that they are about a different person with his own history and facts.  Secondly, as already said, while the three are presented as South Africans, the article distinguishes the respondent.  He is introduced as “(A)nother account holder linked to South Africa is Algerian-born Frenchman”. This introduction constitutes a dividing line.  It ushers the reader into the story of a different person; someone different from the three allegedly infamous South Africans.  Thirdly, there is nothing said about the respondent specifically which lumps him with the three South Africans; on the contrary, unlike the three, positive things are said about him, such as the contributions he made in this country; in this respect, see what is quoted about him in paragraph 4 above. Fourthly, it is particularly telling that starting from the respondent until the end of the article, nobody is presented as a drug dealer, tax dodger or money launderer; none is presented as a miscreant.   There are therefore two groups: the bad one and the good one. Nothing in the article puts the respondent in the former group; on the contrary, he fits more comfortably in the latter. His argument that the article should have specifically taken him out of the bad group is not sound because there was no need to do so in the first place.

7.      Finally, and equally important, is that the second paragraph of the article stated upfront that the article was going to deal not just with the bad, but also with a category of the good (CEO’s of blue-chip companies etc.). The reader would therefore have known that they were also going to read about the good as well, something which in fact happened as explained above.

8.      For the reasons given above, we are of the view that the Ombudsman erred in his finding that appellant acted in breach of article 2.1 and 2.2 of the Press Code; the appeal must therefore succeed.  The following order is accordingly made:

The finding of the Press Ombudsman dated 11 June 2015 that the Sunday Times breached articles 2.1 and 2.2 of the Press Code is overruled, and the sanctions he imposed are set aside.

Dated this 22 day of September 2015

Judge B M Ngoepe, Chair, Appeals Panel

Mr F Groenewald, Member, Press Representative

Mr P van der Merwe, Member, Public Representative