Ranjeni Munusamy vs. Sunday Times

Provisional ruling by the Press Ombudsman

This ruling is based on the written submissions of Ranjeni Munusamy, associate editor of the Daily Maverick, and those of Susan Smuts, legal editor at the Sunday Times newspaper.

COMPLAINT

Munusamy is complaining about an article published in the Sunday Times of 3 August 2014, headlined Zuma revealed as hidden hand in spy scandal – In this edited extract from his new book, Mzilikazi wa Afrika reveals the truth behind a story that helped the president duck prosecution. The sidebar read Becoming puppets in a bigger political game.

Munusamy complains that the:

• article was factually incorrect in several aspects;
• newspaper did not ask her to respond to the allegations made against her;
• article was not presented in context (unbalanced);
• allegations were not verified;
• story revealed the name of a “source”; and
• article has harmed her reputation and dignity.

THE TEXT

The article is an extract from a book, Nothing left to steal – jailed for telling the truth, by Mzilikazi wa Afrika. It is about a story that helped Pres Jacob Zuma “duck prosecution” (by accusing National Prosecuting Authority head Bulelani Ngcuka of being an apartheid spy).

With this text came a sidebar headlined Becoming puppets in a bigger political game. It read, inter alia: “This extract is a timely reminder of how easily journalists become actors in dramas orchestrated by outside directors.”

SUNDAY TIMES’S RESPONSE

Smuts says:

• while the published text constituted editorial content, the responsibility for the content of the book must lie with Penguin Books (the publisher);
• the book is freely available in South Africa;
• there is a long-established tradition among newspapers to publish extracts of books;
• the material was clearly presented as an extract from a book – and readers knew about Penguin;
• publishers, like Penguin, take responsibility for checking the facts they publish – making it reasonable for the newspaper to have relied upon Penguin (especially since it was aware that the publisher did take steps to verify the facts); and
• the content of the book was produced by wa Afrika in his own time and edited and published by a publishing house with no business with the Sunday Times – “[we] should not be compelled to defend material produced by another entity”.

She argues that, if the newspaper was expected to do its own fact-checking on an extract from a book already fact-checked by its publisher, “it would open a minefield of potential problems”. For example, this might involve altering copy in a book already published by a professional and responsible publisher. And: “How then could we say it was an extract?”

Smuts concludes: “If there is any problem with the content, only the book publisher can recall the copies, correct the manuscript and redistribute the books.” She says the newspaper would be willing to reflect any concession made by Penguin in respect of the extract it published.

MY CONSIDERATIONS

As is always the case in media ethics, pros and cons (shades of grey) are involved in this issue as well.

Firstly, as a general principle Sunday Times is correct in all of its arguments (as reflected above).

For example, let’s say someone publishes a book headlined Nkandla – the truth behind the truth. It would be ludicrous, if not impossible, for a newspaper to establish the veracity of the new “facts” before reporting on the content of the book.

Neither could it be held responsible for this author’s work – even if the writer was/is on the newspaper’s editorial staff.

It is unthinkable that this office would hold a newspaper responsible for publishing an extract from a book.

Here is another example: Mr Stupid writes a book called The earth is flat – facts that cannot be denied. Every reasonable and enlightened person knows that is not true, but that should not prohibit a newspaper from publishing an extract from that book.

In this regard, the finding by Judge J.A. Hefer (National Media Ltd. and Others vs. Bogoshi – 29 September 1998) is of particular importance.

Hefer said:

“…the publication in the press of false defamatory allegations of fact will not be regarded as unlawful if, upon a consideration of all the circumstances of the case, it is found to have been reasonable to publish the particular facts in the particular way and at the particular time. In considering the reasonableness of the publication account must obviously be taken of the nature, extent and tone of the allegations. We know, for instance, that greater latitude is usually allowed in respect of political discussion…and that the tone in which a newspaper article is written, or the way in which it is presented, sometimes provides additional, and perhaps unnecessary, sting. What will also figure prominently, is the nature of the information on which the allegations were based and the reliability of their source, as well as the steps taken to verify the information. Ultimately there can be no justification for the publication of untruths, and members of the press should not be left with the impression that they have a license to lower the standards of care which must be observed before defamatory matter is published in a newspaper…a high degree of circumspection must be expected of editors and their editorial staff on account of the nature of their occupation; particularly, I would add, in light of the powerful position of the press and the credibility which it enjoys amongst large sections of the community.”

Of course it has to be clear that the content is the view of the writer (and not necessarily that of the publication).

In light of this verdict, as well as the “general” principle that I have outlined above, I provisionally submit that it was reasonable for Sunday Times to publish this particular extract from wa Afrika’s book – regardless of whether it was true or not.

However, after having said “A”, I now need to proceed to “B”, because this freedom of expression is not absolute.

Section 16 of SA’s Bill of Rights guarantees freedom of expression to “everyone” (including the press), but it also stipulates that this right “does not extend to propaganda for war, incitement of imminent violence, or advocacy of hatreds that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm”.

This, in fact, defines “hate speech”.

It is trite that the repetition of hate speech is also hate speech (as correctly indicated by Munusamy in later correspondence).

However, I could not find any trace of such speech in the text. This means that the newspaper passes the second test.

But there is more…

While a newspaper has the freedom to publish extracts from a book, even though there may be falsehoods in that text (not perpetuating hate speech, though), the publication should make it clear that the views contained in the extract are those of the author (which is what the Sunday Times has done).

But: If a publication accepts the veracity of the contents of a book on which it reports, it then should take full responsibility for the contents.

In this case, both the sub-headline and the side-bar make it clear that the newspaper has accepted the truth of the statements made by wa Afrika (for example, the sub-heading said that his book “reveals the truth behind a story” – emphasis added). Smuts has also confirmed this in her correspondence to this office.

If that is the case, then the onus is on Sunday Times to prove the truth of wa Afrika’s allegations.

Please note: It is not the task of this office to determine who is right and who is wrong in this instance (as has been suggested in the press). That would have placed the onus on me to establish “the truth”. On the contrary, my sole duty is to determine whether the newspaper was justified in publishing the text.

Lastly, when a newspaper publishes an extract of a book, it is not normal practice to ask anybody for a right to reply (this holds true, even if the newspaper published editorial comment next to the extract); and if the book, which is freely available, discloses a source, surely that is already in the public domain.

TWO OPTIONS

Sunday Times now has two options. It either has to:

• state that wa Afrika’s views were his own. The publication does not have to distance itself from his statements (implying that they were incorrect) – it merely has to say that the views contained in the article do not necessarily present its own views. In that case, it should acknowledge that it has made a mistake in presenting his views as the truth (in both the sub-headline and the side-bar), and apologise for this; or
• prove the veracity of the statements, if it does not see its way open to do the above.

FINDING

I am withholding my finding until the newspaper’s response to the above alternatives has been received.

Johan Retief, Press Ombudsman