Graeme Smith vs. Sunday Times
This ruling is based on the written submissions of RD Becker & Associates Attorneys on behalf of former South African cricket captain Graeme Smith, and those of Susan Smuts, legal editor of the Sunday Times newspaper.
Complaint
Smith is complaining about:
· a report on page 1 in Sunday Times of 8 March 2015, headlined Divorce by SMS: How Biff lied to his wife – Friends reveal shocking details of Graeme Smith’s secret plans to end his marriage. The story continued on page 2 under the headline Biff lied to his wife about his secret divorce plan;
· a Twitter feed on the same day, headlined Divorce by SMS: How Graeme Smith lied to his wife – read about it in the #Sunday Times today;
· posters which reflected the headlines mentioned above; and
· the text headlined Caught by his own slips, in the Hogarth column’s Mampara of the Week on page 20.
He complains that the headlines/Twitter/posters:
· wrongly stated allegations as fact (further details below);
· did not take due care and consideration regarding his dignity and reputation; and
· did not take into account that two young children were involved.
Smith adds that the story did not state that the newspaper had been unable to verify the content of the alleged SMS, that the journalist used a single, anonymous source and that the article was based on hearsay.
He also complains that the:
· reporter did not give him sufficient time to respond to her questions; and
· opinion piece (Mampara of the Week) repeated and reinforced the unsubstantiated conclusions of the headlines.
The texts
The story quotes “friends” of Smith’s wife, Ms Morgan Deane, who reportedly said that Smith had mistakenly sent her an SMS, advising that he was going to file for divorce and that he had lied to his wife by telling her he had arranged for them to undergo marriage counselling.
Mampara of the Week called Smith ruthless because he had tricked his wife into thinking that he had lined up marriage counselling – only for her to learn that, in fact, he wanted a divorce. It stated as fact that Smith sent her an SMS to this effect, while the SMS was intended for his attorney.
The complaint in more detail
Headlines/Twitter: stating allegations as fact
Smith complains that the headlines (on pages 1 and 2) and the Twitter feed:
· wrongly stated the allegations (as described above) as fact;
· were emphatic, in that they were in bold type to achieve the emphasis the newspaper intended; and
· were sensationalist, because they were designed to shock and capture attention.
He says that they were therefore in breach of the following sections of the Press Code:
· 10.1 (headlines should give a reasonable reflection of the contents of a report);
· 2.1 (reporting should be fair);
· 2.2 (reportage should be balanced); and
· 2.3 (if a story is based on opinion, allegation, rumour or supposition, this should be indicated).
Smith concludes that there are thousands of people who do not buy the newspaper, but only read the headlines in shops. “These people would have read the headline and simply concluded that [he] had told his wife that he was divorcing her by SMS and that he had lied to his wife.”
Headlines/Twitter: dignity and reputation
Smith complains that the headlines/Twitter violated Section 4.7 of the Press Code, as they did not “exercise care and consideration” regarding his dignity and reputation. His attorney says the publication (“the most widely read weekend newspaper in South Africa”) did not give due consideration to the fact that Smith had a high profile.
Headlines/Twitter: children
Smith complains that the headlines/Twitter violated Section 8.1 of the Press Code, as they did not give due consideration to the fact that Smith had a high profile, or that two young children were involved (both Smith and Deane had appealed for privacy for this very reason).
Posters
Smith complains about posters that were likely to have repeated the same or similar headlines. However, he says that he has been unable to personally verify the text of the poster.
The story: Unable to verify; single source; hearsay
Smith complains the story did not state that the newspaper had been unable to verify the content of the alleged SMS. He contends that, while the reporter apparently based her story on information garnered from “friends” (plural), “it becomes apparent that the source of the vast majority of information is in fact a solitary ‘friend’”. Smith concludes that the information obtained from this single, anonymous source was based on hearsay.
He denies ever sending Deane an SMS (mistakenly or otherwise) advising her that he or they were getting a divorce and “puts the [newspaper] to the proof thereof”. Smith also argues that the publication has misrepresented him and indeed failed to verify the allegations in question. “Where it was not possible to verify the fact and content of the alleged SMS, it should have stated this clearly in the article…”
Smith complains that there was only one (anonymous and biased – a friend of Deane’s) source from whom the vast majority of the information came. He also contends that there is no evidence to support this information.
Not enough time to respond
Smith complains that the reporter did not give him sufficient time to respond to her questions. He says the reporter sent his PR representative, Ms Kirsti Lyall, a list of ten questions at 14:00 on Friday, 6 March 2015, giving him until 11:00 the following morning to respond. This was “too short a timeframe to expect [him] to meet with [his] professional advisors and formulate any meaningful and detailed response… [T]his is unfair and unbalanced reporting…”
Mampara of the Week
Smith complains that the opinion piece repeated and reinforced the unsubstantiated conclusions as reported in the headlines. “This is grossly unfair and in breach of Section 2.1, 2.2 and 2.3 of the Code.”
| The newspaper’s response
Incorrect assumptions Sunday Times replies the complaint is incorrectly premised on the assumption that it relied on a solitary source and on hearsay. “We spoke to two people, who had detailed accounts of the events that we reported on… Mrs Smith, in her distress, told her friends about it. They in turn chose, independently, to share the information with us.” Smuts adds that the sources corroborated each other’s information. “We submit that the information they supplied us with was true, or reasonably true, as stipulated by the Press Code and by the courts through the Bogoshi judgment.” This, she argues, confirms that the sources were not biased, pointing out that at least one of them was a friend to both Smith and Deane. She also attests that one of the friends saw the SMS; the other was told about it by Deane. Smuts’s following argument is important enough to quote in full:
Smuts concludes that the: · facts underpinning the headlines supported the words used. “We submit that corroboration from two people of the salient information, under circumstances where very few people would be party to the events, is enough to justify the headlines”; · phrase “Divorce by SMS” was justified in the headline because it “summarized” the manner in which Deane had learned about her divorce; · headline did not say that Smith had informed his wife by SMS that they were getting divorced; and · reference to lying was justified on the basis that the facts as reported, and not contested, were true. Asking for comment The newspaper says it tried “all week” to track Smith down for comment. Having been unsuccessful, it then contacted his representative (Lyall). Smuts states that both Smith and Lyall were media-savvy people – they would have known that they might have been able to negotiate for more time to prepare a response. “They did not attempt to do this, nor did they try to delay – or even avert – publication.” The legal editor also points out that the questions put to Smith did not require any research as they were “within the direct personal knowledge” (of Smith). She concludes that the newspaper discharged its duty by giving Smith an opportunity to respond “and his failure to do so cannot be blamed on us”. She adds that the newspaper is still interested in publishing Smith’s responses and invites him again to respond to the questions. Posters Smuts argues that this part of the complaint is frivolous and without merit, as neither the abbreviation “SMS” nor the word “lied” was used on the poster. High profile Smuts refers to the several times that Smith’s high public profile is mentioned in the complaint. “We submit that it is exactly his high profile and the fact that he is a role model that makes his conduct open to scrutiny. The test is, in any event, not whether he has a high-profile, but whether he in fact behaved callously or lied. We submit that the facts support such a reading. We point out that he and his wife announced their divorce to the media, clearly in recognition of the profile he enjoys. The statement opened the door to speculation about the reasons for the demise of the marriage, and Mr Smith must have known that the media would seek to take the matter further.” Mampara of the Week Smuts argues that this part of the complaint should be rejected because it was satire and comment, and therefore protected both by the Press Code and by legal precedent. “The facts, as demonstrated above, support a conclusion that he behaved in a way that elicited the label ‘mampara’.” |
Smith’s response to the newspaper’s reply
Sources
Smith says Sunday Times appears to suggest that his complaint is entirely centered on allegations relating to the source(s). He says that is not the case, as the matter of the sources only relates to one or two of the eight parts of the complaint.
Regarding the newspaper’s statement that the source(s) had “detailed accounts of the events that we reported on”, he argues that:
· it is disingenuous – even if there were two separate sources, neither of them had detailed accounts of “the events” because they were not there to witness “the events”. “It was hearsay”; and
· the reports were not “detailed” – they were sketchy.
Smith also doubts that the newspaper did in fact have two sources, as this is “not consistent with the wording in the article” – only the first three paragraphs refer to “friends”, after which the rest of the story has been sourced from one friend. “If it had been sourced from two friends, the reporter would surely have reported as such, indeed stated expressly that the information had been corroborated by another source.”
He says the newspaper’s statement that the source(s) were not biased is “astonishing”, considering the fact that the first paragraph of the story stated that the sources were “close friends” with his wife.
Smith adds that, given the fact that the reporter was in WhatsApp contact with his wife, he cannot be blamed for concluding that it is “entirely more likely” that Deane was one of the “sources” and was providing information to the journalist under the guise of a “friend”.
The alleged SMS; verification
Smith says the main substance of the story (the part which generated the headlines) was based on an alleged SMS which the reporter did not see prior to publication – she asked his wife by WhatsApp for the alleged SMS two days after publication.
He argues that the reporter therefore had reason to doubt the accuracy of her information (see Section 2.4 of the Press Code). The journalist should have verified the contents of the SMS prior to publication, failing which she should either not have published the news report, or at least have stated that the contents of the SMS could not properly be verified.
He calls the headlines “simply reckless”, and concludes: “The [newspaper] had a professional reporter writing a headline story for the Sunday Times based almost entirely on something she…had not even seen, [it was] essentially gossip from a biased source.”
Smith says various SMS messages were sent and received between him and his wife at the time. He believes that what the source was referring to, was a message in which he mentioned the fact that their mediator had informed her that he had seen a family lawyer for advice. This related to the issue of whether his wife could take the children back to Ireland without his consent.
He reiterates that there was no SMS informing or notifying his wife of a divorce, nor did he have any “secret plan”.
Not enough time
Smith says it is irrelevant whether or not the newspaper tried to contact him or Lyall during the course of the week – the fact is that a list of ten questions was sent at 14:00 on Friday, March 6.
He states the suggestion by Smuts that he should have asked for more time to respond is “somewhat disingenuous”, considering that the reporter made it clear that she was going to print, no matter what. (She stated below her questions: “Please note that we will be publishing the story on Sunday…”)
In reaction to Smuts’s argument that he had personal knowledge of all the information required by the questions and that he should have been able to respond to them in time, Smith says: “The [newspaper] would or should have known that, given the sensitivities and complexities of the matter, [he] would have needed adequate time to consult with his advisors, including his publicist, agent, professional advisors and his divorce attorney in respect of the questions posed.”
He adds that he and his wife agreed that no statements would be issued by either of them without the consent of the other – so it was also necessary for his divorce attorney to discuss the matter and any proposed responses in detail with his wife’s attorney. “The [newspaper] should have foreseen that this would have taken more time than that permitted by the [journalist].”
The headlines
Smith says the newspaper’s submission that the respective headlines were justified because he did not deny the allegations is “completely without foundation” – a “no comment” cannot by default be interpreted as an admission that an allegation is true.
He adds that, in his complaint, he did deny sending his wife an SMS advising that he or they were getting a divorce.
Regarding the newspaper’s argument that it did not say that he had sent Deane such an SMS, either in the headlines or in the story, Smith says this distinction is fallacious and wholly objectionable, and asks: “It begs the obvious question: what does ‘Divorce by SMS’ in the headline mean?” The average reader could only have interpreted this to mean that he had, mistakenly or otherwise, sent an SMS to his wife, notifying her that he was getting a divorce. “With respect, it does not, as the [newspaper] alleges, simply ‘summarise the matter in which Mrs Smith learned about her divorce’.”
Mampara of the Week
Smith replies the newspaper’s contention that the “facts” as reported justified the label “Mampara of the Week” (and also the headlines) was not factual at all (as stated above).
My considerations
Headlines/Twitter: stating allegations as fact
The gist of the complaint is that the headlines and the Twitter feed stated the allegations in question as fact.
I note that, while Smith denied these allegations, he did not complain about the fact that the allegations were published as allegations in the body of the news report.
Therefore, I am not going to delve deeper into this matter, save to say that I am uncomfortable with the publication of the allegations as such – given the fact that his comment was not published, and the possibility that the sources might indeed have been biased. (Or maybe not.) I shall comment on these matters as I go along.
As I have on various occasions stated in my findings, the mere fact that an allegation has been made does not by default justify a newspaper to publish it – allegations can be baseless, defamatory, and they can cause huge unnecessary harm.
Be that as it may, I now turn to the complaint about the headlines and the Twitter feed.
Judge Phillip Levinsohn has recently (in 2013) said in a Supreme Court case in Swaziland: “Many readers of newspapers simply glance at the bold headings only and then move on. The impression implanted in the mind of the reader by such blaring headlines is likely to be both deep and lasting. Most readers do not read the whole story…”
From this, it is fair to say that headlines should stand on their own and be interpreted as such. (I have asked him personally whether this interpretation was correct, to which he replied in the affirmative.)
That is why Section 10.1 of the Press Code states that headlines “shall give a reasonable reflection of the contents of the report…in question”. At the very least, this means that headlines should not add to the story, nor should they misrepresent it.
After close scrutiny of the report, I am satisfied that nowhere does it state any of the allegations in question as fact. The report consistently ascribes these allegations to “friends”. It is clear that the allegations, whether factually correct or not, were the views of people.
This leaves me with one question: Did the headlines and the Twitter feed state the allegations as fact? In other words, did they add to the story, or misrepresent it?
In this regard, I quote a part of my recent report to the Press Council and to the SA National Editors’ Forum, under the headline Trends:
| The writing of headlines…seems to continue posing problems. All too often a story would state allegations as allegations, but the headline would present them as facts.
Sometimes a publication argues that I should look at headlines “holistically”, meaning that they should be interpreted in the context of the stories. This is not what the Press Code requires – headlines should reasonably reflect the content of a report. |
The newspaper’s arguments in this regard are not convincing. Smith does deny the accusations in his complaint, while Smuts incorrectly contests this. Also, Smuts’s argument, denying that the headline said Smith had sent his wife such an SMS, is not relevant – the real question is how the average reader would have interpreted it, and whether the headline reasonably reflected the story.
Having closely considered the two headlines and the Twitter feed, I can only conclude that they stated as fact that Smith was a liar and that he had a secret divorce plan – which the story did not do.
When looking at the main headline in the context of the sub-headline, the most likely interpretation of the words “Divorce by SMS” is that he had notified his wife per SMS that he wanted a divorce. No matter how the newspaper tries to explain these headlines and Twitter feed away, I cannot but conclude that the headlines/Twitter went too far.
The next remark is important enough to make it in bold, and put it in a box:
| By making a decision that the publication of the headlines/Twitter was unjustified, I am not (therefore) finding that the allegations made against Smith are false. For all I know they may be true. I simply do not have any evidence to either effect and, besides, the Press Ombudsman’s office is not a court of law – it is an institution of ethics. My decision is therefore not a judicial, but rather a journalistic one. All I am saying is that, with the information at the newspaper’s disposal at the time of publication, it was not justified in stating the allegations as fact in the headlines and in the Twitter feed. |
Smith’s complaint that the headlines and the Twitter feed were emphatic and designed to shock and capture attention has no leg to stand on. In itself, this cannot be in breach of the Press Code. However, the sanction will reflect these matters as a sanction should be appropriately prominent in cases such as this (see Section 2.6 of the Press Code).
Headlines/Twitter: dignity and reputation
The newspaper did mention Smith’s high profile (Smuts’s argument on this issue is convincing), but it did not respond to the complaint that the headlines and Twitter feed did not “take care and consideration” regarding his dignity and reputation, thereby breaching Section 4.7 of the Press Code.
I am convinced that none of the sub-sections in 4.7, which make room for exceptions, apply in this case.
Having decided that the headlines and Twitter feed unjustifiably stated the disputed allegations as fact, it follows that I need to find for Smith on this issue as well. I also take into account that the allegations were serious, and I have little doubt that they have done unnecessary harm to his dignity and reputation.
Headlines/Twitter: children
Sunday Times does not reply to this part of the complaint.
The relevant section says: “The Bill of Rights…in the South African Constitution reads: ‘A child’s best interests are of paramount importance in every matter concerning the child’. The press, applying the spirit of this section, shall therefore exercise exceptional care and consideration when reporting about children. If there is any chance that coverage might cause harm of any kind to a child, he or she shall not be interviewed, photographed or identified without the consent of a legal guardian or of a similarly responsible adult and the child (taking into consideration the evolving capacity of the child), and a public interest is evident.”
Although the children are likely to read the headlines and the Twitter feed at some later stage, the story was not about them. This office cannot prohibit a newspaper from publishing a story about two adults merely because their children might read it.
Posters
The poster read, Graeme Smith’s divorce shame.
It is true, as Smuts argues, that the posters did not contain the words “SMS” or “lied”.
However, more is at stake in this matter. The word “shame” suggests some wrong-doing on Smith’s part – which is (again) merely an allegation in the story and not necessarily a fact.
While I think that the posters have done him some harm, I also believe that this harm is much less than what the headlines etc. have caused him. The word “shame” is a general term, unlike the explicit words used in the other texts.
This will be reflected in the finding, and in the lack of a sanction on this issue.
The story: Unable to verify; single source; hearsay
I have no reason to believe that the newspaper relied on one source only. Smith’s argument is merely his own conclusion – one I cannot share without the necessary evidence.
The fact that the two sources were both close to Deane may make their information suspect. But then again, Smith did not complain about the fact that their allegations were published as allegations.
I have asked Smuts whether the reporter had actually seen the SMS prior to publication. She replied: “The reporter did not see the SMS. One of the friends read to it to her, and the other told her about it.”
This makes me uncomfortable, as the gist of the article was based on the content of the SMS. I submit that the reporter should have insisted on seeing the SMS before she went to press with her story.
However, the newspaper’s response that one of the friends read the SMS to her is a mitigating factor. Again, I take into account that the story presented the allegation about the SMS as an allegation.
I can understand Smith’s conclusion that Deane may have been one of the sources. However, in addition to other statements to this effect, Smuts submitted: “Mrs Smith, in her distress, told her friends about it. They in turn chose, independently, to share the information with us.” The legal editor also said that one of the friends saw the SMS; the other was told by Deane about it.
I have no reason to disbelieve Smuts on this issue, and I have no evidence to the contrary.
Not enough time to respond
The issue is whether or not the timeframe the newspaper gave Smith was sufficient and therefore fair and reasonable.
The reporter sent her questions to Lyall on Friday, March 6, at 14:02; and gave him time until 11:00 the following morning to respond.
Smuts correctly argued that Smith had personal knowledge of all the issues raised in the questions, and that he could easily have responded in time.
On the other hand, I have sympathy for Smith as well, seeing that he had to consult with various people – including Deane’s attorney.
However, that is not the newspaper’s problem. I also take into account that neither Lyall nor Smith asked Sunday Times for an extension. They should have done so, regardless of the surmised outcome.
Mampara of the Week
Mampara of the Week took the allegations in the story as fact and called Smith ruthless because, as it claimed, he had tricked his wife into thinking that he had lined up marriage counselling – only for her to learn that, in reality, he wanted to divorce her. It stated as fact that Smith sent her an SMS to this effect, while it was intended for his attorney.
Even satire has its moral and ethical limits. Th at is why Section 7.3 of the Press Code says: “Comment by the press shall be an honest expression of opinion…and shall take fair account of all available facts which are material to the matter commented on.” (My emphasis.)
If the story stated the allegations as fact, the column would have been in order. I do not expect columnists to investigate the truth of stories generated by their colleagues. However, in this case the column was based on headlines and a Twitter feed, which in turn were mistakes (as argued above).
Finding
Headlines/Twitter: stating allegations as fact
The headlines and the Twitter feed stated the allegations in question as fact. This is in breach of Section 10.1 of the Press Code which states: “Headlines…shall give a reasonable reflection of the contents of the report…in question.”
Headlines/Twitter: dignity and reputation
The headlines and the Twitter feed unnecessarily harmed Smith’s dignity and reputation. This is in breach of Section 4.7 of the Press Code: “The press shall exercise care and consideration in matters involving dignity and reputation…”
Headlines/Twitter: children
This part of the complaint is dismissed.
Posters
The word “shame” suggests some wrong-doing on Smith’s part – whereas the story reports allegations only. This is in breach of Section 10.2 of the Press Code: “Posters shall not mislead the public and shall give a reasonable reflection of the content of the reports in question.”
The story: Unable to verify; single source; hearsay
This part of the complaint is dismissed.
Not enough time to respond
This part of the complaint is dismissed.
Mampara of the Week
Mampara of the Week took the allegations in the story as fact. This is in breach of Section 7.3 of the Press Code: “Comment by the press shall be an honest expression of opinion…and shall take fair account of all available facts which are material to the matter commented on.”
Seriousness of breaches
Under the headline Hierarchy of sanctions, Section 8 of our Complaints Procedures distinguishes between minor breaches (Tier 1), serious breaches (Tier 2) and serious misconduct (Tier 3).
The breaches as described above are all Tier 2 offences.
Sanction
Sunday Times is directed to:
· apologise to Smith for stating the allegations in question (that he advised Deane via SMS that he was getting a divorce, that he lied to her, and that he had a secret divorce plan) as fact in the headlines, in the Twitter feed and in Mampara of the Week, and for suggesting, without supporting evidence, some wrong-doing on Smith’s part by the wording of the posters – thereby unnecessarily harming his dignity and reputation;
· retract the statements in question; and
· publish:
o a short apology on its front-page, immediately below its masthead, containing the words “apology” or apologises” (or something to that effect) and Smith’s name in the headline;
o a full apology on page 2;
o the following words at the end the text: “Visit www.presscouncil.org.za for the full finding”; and
o the full apology on its website (if the offending headlines were published there as well).
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 Ombudsman