Appeal Decision: DD Schwarz vs. The Herald (Minority Decision)

Appeals Panel Hearing

Press Council of South Africa

Finding by Mahmood Sanglay on the Appeals Panel with Judge Bernard Ngoepe and Advocate Ntsikelelo Sandi

Monday 3 March 2014

Humewood Hotel, 8.30am to 12 noon

Appellant:

The Herald, represented by Okyerebea Ampofo-Anti and attorney Avani Singh of Webber Wentzel Attorneys); Heather Robertson, editor of the Herald and Gareth Wilson, journalist at the Herald

Respondent:

Davrin Schwarz represented by his legal counsel Advocate Michelle Beneke and attorney Mark Rossouw

Introduction

1. This finding considers arguments of both the complainant and the respondent, from the date of the original complaint on 2 July 2013 to the appeal hearing on 3 March 2014. I must at the outset express my concern with the procedure of a matter that essentially requires an ethical determination, but which had almost throughout been subjected to—and eclipsed by—legal representations by both parties.
2. In my view this is inconsistent with the raison d’être of the Press Council implicit in its aims and objectives, namely to offer a ‘non-statutory avenue for the mediation and adjudication of complaints against the press’, to ‘promote and to develop ethical practice in journalism’ and to ‘establish and maintain a voluntary independent mechanism to deal with complaints about journalistic ethics’.
3. One of the pillars of the council’s dispute resolution mechanism is a commitment to ethical conduct in journalism as indispensable for journalistic practice. Hence, the forum for such dispute resolution should constitute ethical deliberations, guided by the Press Code.
4. My finding below therefore is informed by the relevant legislation by default, due to the overwhelming preponderance of legal representation and legal arguments. However, my finding is informed—and ultimately guided by—ethical considerations, specifically the ideals of ethical conduct of the press as provided for by the Press Code.
5. Having studied the arguments of both parties I have considered the guiding principle of public interest as stipulated in the code. I have furthermore considered the requirement in the code of care and consideration and avoidance of unnecessary harm in respect of the right to privacy and the dignity and reputation of the complainant in this case.
6. The Appeals Panel is tasked with the responsibility of considering the appeal against the majority and minority findings of the Adjudication Panel. In making a determination in this matter I shall mainly address issues that, in my view, are relevant and that shed new light on the Adjudication Panel’s findings and the arguments and evidence led by Mr Schwarz and the Herald.
7. Aspects of the complaint such as the factual errors have been dealt with and the Herald has conceded to some of the alleged inaccuracies. As they do not make a material difference to my finding I will not be dealing with them here.

The public interest

1. This case essentially turns on balancing the public interest against Mr Schwarz’s right to privacy. To achieve the balance in this case requires care and consideration by the editor to ensure that the public interest value of the article is weighed carefully against Mr Schwarz’s rights to privacy, dignity and reputation as required by section 4.2 of the Press Code. The appropriate decision would also be one that takes into account any unnecessary harm done to Mr Schwarz in this respect as stipulated in the preamble of the code.
2. The Herald makes three key assertions. The first is that Mr Schwarz has no basis for a claim to privacy because it does not meet the test for privacy as stipulated by Ackerman J in Bernstein v Bester. This assertion is made independent of the expungement of his criminal record.
3. The Herald argues that there is nothing private about Mr Schwarz in the article it published. The newspaper supports this position with Bernstein (para 67) which stipulates that only the ‘inner sanctum’ of persons is protected by the right to privacy. Counsel for the Herald cite the sexual preferences and home environment as aspects of the inner sanctum of persons referred to in Bernstein. It follows, according to the Herald, that news of Mr Schwarz’s employment at NMMU is not part of his ‘inner sanctum’ and is therefore not a private matter. Hence it is a matter in the public interest.
4. The Herald makes the first assertion above on the basic premise that the public interest overrides any right to privacy Mr Schwarz has in this matter, by and in itself because it is not a private matter.
5. There is another reason the Herald refutes the allegation of a breach of Mr Schwarz’s privacy, namely that the factual information in the article are already matters of public record sourced from court records, media reports and Mr Schwarz himself.
6. The second assertion of the Herald is that due to the wide publicity given the matter in the media and the nature of his crime ‘Schwarz no longer has a legitimate expectation of privacy concerning this issue’.
7. The premise of the second assertion is that public knowledge of a crime automatically renders the one guilty of the crime subject to indefinite public association with it, regardless of its expungement.
8. The third assertion of the Herald is that, as in Citizen v McBride, it was in the public interest for the newspaper to question Mr Schwarz’s suitability for the post at a public institution. “The Herald strongly believes the public have a right to know that criminals can apply to have their records expunged. The students and parents of students attending NMMU also have the right to know if someone with a criminal record—particularly involving a violent crime—is working on campus, especially given the interactive nature and level of authority the position carries,” the Herald avers.
9. The third assertion is made on the basic premise that the public had a right to know the news of his employment at NMMU as a man with a criminal record and a history of violent crime.
10. I agree with the Herald that the article does not disclose any private information to its readers. The Herald is also correct in arguing that there is no legitimate claim to privacy in respect of the information published because this information is already on the public record. This is a matter of fact and cannot be disputed.
11. However, Mr Schwarz does not claim that the Herald published private information, so a claim in respect of disclosure of private information will not be dealt with in this finding.
12. However, the Herald’s definition of privacy and its reference to Bernstein (para 67) in this respect is relevant to the extent that it relates to the effect of the published information on the ‘inner sanctum’ or the private life of a person.
13. The Herald uses Bernstein selectively in defining privacy. In Bernstein it is not only sexual preferences or the home life of a person, but also ‘his/her family life’ that is included in the definition. This inclusion has significant implications for the matter between the Herald and Mr Schwarz, given that this was a family murder, and in this respect manifests a deeply private aspect to the tragedy. It is the story of a man who succumbed to enormous stress at work and in his marriage. The consequences were as tragic as in any other family murder in which these causal factors play a role.
14. Cameron J in Citizen (para 132) makes reference to Le Roux and Others v Dey in which the Constitutional Court found ‘an apology was an appropriate measure of restorative justice in a case involving ruptured personal relationships’. [My emphasis]
15. It is fair to state that the Constitutional Court effectively ruled in Le Roux on a matter concerning the ‘inner sanctum’ of Dr Dey’s claim. The latter’s dignity was impaired with the publication of computer-generated images by school learners. Mr Schwarz’s complaint essentially relates to how his private life, dignity and reputation have been affected, particularly his personal relations with his children, other members of his family and friends.
16. It is therefore fair to conclude that given the impact the article had on Mr Schwarz’s personal relationships, it had affected the ‘inner sanctum’ of his life as defined in Bernstein. To the extent that these relationships, as the ‘inner sanctum’ of Mr Schwarz’s life, are vulnerable to the impact of sustained or indefinite public exposure of his past, they are eligible for protection by the right to privacy.
17. It is noteworthy that the Herald makes an important concession in this respect. The deputy editor of the newspaper, in her letter (9 July 2013), expresses regret for ‘any pain the article may have caused his family and friends’. However, the editor of the Herald states in the appeal hearing that she does not believe the article had caused Mr Schwarz any harm. She added that any harm Mr Schwarz may have suffered is directly as a result of the crime he committed and cannot be attributed to the newspaper.
18. For the purposes of this appeal it is useful to consider the publication of the article as having had an effect on each of three parties. The first is the public in whose interests the Herald claims it is acting. The second is Mr Schwarz, the complainant who argues that the article had infringed his rights. The third is the people close to Mr Schwarz, who are affected by a re-visitation of the narrative in the case of his children and by disclosures in the media that affected his ‘lady-friend and her children’ in the case of his friends. None of the family or friends of Mr Schwarz are represented in the complaints and appeals process so their position need not be considered here. However, the impact the article has had on them insofar as it matters to Mr Schwarz is relevant.
19. Had there been no complaint one may assume the article had no effect on the privacy, dignity and reputation of Mr Schwarz and his loved ones. However, Mr Schwarz asserts his right to claim that he is affected and that this includes the impact the article has had—and continues to have—on his relationship with his loved ones. This effect was recognised by the Constitutional Court in Le Roux where the court found in favour of the complainant.
20. It is therefore important for this panel to recognise that while Mr Schwarz does not have a case for a claim of disclosure of private information, he does have a case—and he does make this claim—that publication of the information had indeed compromised his personal relationships. Mr Schwarz is therefore not only entitled to seek protection for this ‘inner sanctum’ of his private life; he has a legitimate expectation of protection of these personal relationships from unnecessary harm.
21. This is in direct conflict with the Herald’s second assertion that Mr Schwarz ‘no longer has a legitimate expectation of privacy concerning this issue’ and that it is a standard which is objectively measured against ordinary and reasonable sensibilities and not against hypersensitiveness.’
22. This stigma is a sensitive matter for Mr Schwarz and everyone connected to him in any way personally and professionally. The consequent rupturing of personal relations and the termination of professional relations were a direct result of the article and editorial reviving the stigma of guilt and pain of the family murder. This is the impact on the normal sensibilities of Mr Schwarz, and not hypersensitiveness as stated by the Herald. Therefore the Herald’s assertion that any harm Mr Schwarz may have suffered is as a result only of the crime he committed and that it cannot be attributed to the newspaper is untrue and must be rejected.
23. The premise of the Herald’s second assertion—that public knowledge of a crime automatically renders the one convicted of the crime subject to indefinite public association with it, regardless of its expungement from the record—is also inconsistent with the view of Cameron J in Citizen (para 79):
24. Does this mean that, despite amnesty, Mr McBride’s conviction for murder can indefinitely be flung in his face? Can he be called a murderer ‘forever and a day’? The answer is No. The common law of defamation conformably with the Constitution protects Mr McBride’s right to reputation and dignity. The law of defamation requires at the outset that an issue be a matter of public interest before any defamatory allegations may be made of another. This inhibits indefinite re-conjuring of past issues.
25. Thus the second assertion of the Herald must be rejected.
26. Cameron J concurs with O’Regan J in Khumalo and Others v Holomisa (para 36, n 38) who averred in 2002 that ‘past mistakes should not be raked up after a long period of time has elapsed.’ Hence there is merit in Mr Schwarz’s claim that after sixteen years the public interest in his crime had dissipated. It is reasonable to argue that publication of material relating to Mr Schwarz’s past in the way that the Herald had done should be subjected to the inhibition of a ‘re-conjuring of past issues’.
27. The Herald cites Citizen (para 72) in arguing that expungement of Mr Schwarz’s crime does not entitle him to ‘render untrue’ the fact that he was convicted, or to obliterate the historical truth of his conviction. In particular, the Herald avers that expungement of his crime does not entitle Mr Schwarz to ‘attempt to mute their description’ or ‘stifle the language that may accurately describe the events that led to the conviction’.
28. Mr Schwarz cannot and does not seek to render an untruth true in his application. Neither does he seek moral and social absolution for his deeds. But he does seek protection from an ‘indefinite re-conjuring’ of his crime ‘forever and a day’. He also seeks that he be granted due care and consideration should any press coverage about him be contemplated in the public interest. His complaint is that he was neither granted this protection nor was he accorded such care and consideration.

The public’s right to know v care and consideration

1. This brings us to the Herald’s third assertion that the ‘public have a right to know that criminals can apply to have their records expunged’ and that students and their parents ‘have the right to know if someone with a criminal record—particularly involving a violent crime—is working on campus’.
2. The Criminal Procedure Amendment Act which provides for the expungement of criminal records was promulgated in February 2009, more than four years prior to the publication of the article on Mr Schwarz. The Herald’s article was therefore clearly not news about the legislation per se, but about Mr Schwarz. Therefore the matter that ‘criminals can apply to have their records expunged’ was not of compelling public interest of and in itself at the time. It was the successful application for expungement of the record of Mr Schwarz that was of public interest.
3. It is a little different with the news of Mr Schwarz’s appointment as investigator at NMMU. His appointment, even after four months, was still current news and the dissemination of this information was of public interest.

Four criteria

1. The Herald has a responsibility to exercise care and consideration to ensure that no unnecessary harm is done in its reporting and editorial comment. This responsibility requires that the weight of the public interest value in Mr Schwarz’s successful expungement application and his appointment at NMMU be carefully weighed against the potential harm that may be caused to his privacy, dignity and reputation.
2. There are a number of objective measures the Herald can reasonably be expected to have taken in exercising care and consideration in the case of Mr Schwarz. The first is to take into account that although Mr Schwarz was employed at a public institution he was not a public figure, adding greater weight to his claim to privacy.
3. The second reasonable expectation is that the Herald should have tested the case of Mr Schwarz against criteria ‘prepared in accordance with acceptable principles of journalistic conduct’ as prescribed by section 4.2.4 of the Press Code. In this case the criteria constitute, at it were, a journalistic ethics test to make a determination regarding the propriety of publishing the article and the editorial.
4. The first criterion is whether Mr Schwarz’s character, personality and professional background render him unsuited for the position at NMMU. The evidence led by Mr Schwarz, and confirmed by the Herald, indicate that professional bodies such as PSIRA, Masakhane and the relevant managers at NMMU had done the necessary due diligence checks and had approved Mr Schwarz’s appointment.
5. It is conceivable that Mr Schwarz would have continued working there had the Herald not revisited the narrative of his crime and revived the stigma of his past, resulting in his services being phased out with that of Masakhane. (It is noteworthy that the Herald persists in stating, at least until its application for leave to appeal, that Mr Schwarz had been dismissed, when there is no evidence to this effect and it is denied by Mr Schwarz.)
6. The second criterion the Herald can be expected to have considered is whether Mr Schwarz’s work places any member of the NMMU campus population or anyone beyond the campus boundaries in any kind of danger. Again, the evidence led indicates not, as Mr Schwarz had been rehabilitated and over a period of sixteen years he had earned the right to apply for and undertake gainful work. This is also undisputed by the Herald, except for the query that Mr Schwarz is still taking medication for depression. This query is inconclusive and does not detract from the finding that Mr Schwarz was found fit for work by professional bodies and was not considered a threat to anyone.
7. The third criterion is whether Mr Schwarz’s history of a singular violent crime could adversely affect the public good. Again, the rehabilitation of Mr Schwarz with over 400 sessions with psychologists and psychiatrists, and his successful advancement in civic life, subject to due process, indicate not.
8. The fourth criterion that the Herald should have considered is one dealt with in Citizen (para 79) and Khumalo (para 36). It is the question of consistency between the complainant’s claim in respect of his reputation and his true character. The Constitutional Court upheld Mr McBride’s claim for damages in respect of the Citizen’s contention that he showed no contrition. Sincere regret for one’s past deeds that caused hurt is an important consideration and mitigating factor when questions of suitability for office are raised, especially by the press.
9. Schwarz’s regret for his crime is evidently deep and sincere. The Constitutional Court in Citizen (para 79, n 84) held that ‘a person’s interest in their reputation can only further constitutional values if that reputation is a true reflection of their character (Khumalo, para 36). Schwarz adopted a basic Christian stance to his crime. He beseeched God for forgiveness as well as those most directly affected by his crime, namely his own children. This conduct is consistent with that of a man whose dignity and reputation is worthy of protection by both the Constitution and the Press Code.
10. It is evident that the Herald did not exercise care and consideration by failing to apply the rigour of these four criteria in its decision to publish the article and editorial. This deficiency in care and consideration effectively caused unnecessary harm to Mr Schwarz’s personal relationships and actionably impaired his dignity and reputation. Consequently, the Herald is in breach of 4.2.4 of the Press Code.
11. The Herald does argue, however, that it exercised care and consideration in ensuring balance in the article by reflecting Mr Schwarz’s own comments, his plea for a second chance and the comments of students who accepted him in their midst. This is true. However, it does little to mitigate the unn ecessary harm caused by its failure to undertake the routine due diligence check in journalistic ethics explained above.
12. The irony of the Herald’s defence regarding the headline ‘Killer in plea for second chance’ is unmistakable. Mr Schwarz confirmed in the appeal hearing that he had directed this plea to the Herald not to revisit the narrative of his tragic past and not to publish the article. Mr Schwarz made this plea to the Herald in the interests of affording him that second chance and allowing him to maintain the personal relationships and reputation he had rebuilt over sixteen years. The Herald denied him this chance, and then published his plea, notably in the headline.
13. Yet the headline creates the impression that Mr Schwarz is directing his plea to the public (the reader). The irony deepens when it emerges from the Herald’s article, and Mr Schwarz’s submissions, that in his encounters with staff and colleagues at NMMU, and with students interviewed, he was accepted and given the ‘second chance’.
14. The Herald also states that the information its journalist had gathered was from Mr Schwarz himself. This is true. However, it should be recognised for the record that Mr Schwarz’s participation in the interview in which this information was gathered was neither voluntary nor was it willingly provided. He agreed to be interviewed only because it offered him an opportunity to moderate or mitigate the potential harm of the article the Herald intended to publish with or without his co-operation.
15. It is further a matter of concern that Mr Schwarz’s reaction to the Herald’s article and editorial—the consequences of which include ruptured personal relations, diminished job prospects and the impact on his sixteen-years-long effort to rebuild his life—is dismissed as hypersensitive.
17. I concur with the minority finding of the Press Ombudsman in this regard. The editorial is the space for the newspaper to express its opinion on any matter of public interest. Even though the public interest aspect of the article is already dealt with and was found not to be in the public interest, the newspaper is still entitled to provide fair comment on the matter in the editorial.
18. In my view the Herald had missed this opportunity in its editorial by engaging in comment that perpetuates the harm done in the article. However, the newspaper is entitled to hold such views under the provisions of freedom of expression, irrespective of how disagreeable one finds these views.
19. The editorial is also not in the public interest—for the same reasons as argued for the article—but the Herald is not in breach of any provision of the Press Code by publishing it. I concur with the Ombudsman that there is no breach of the Press Code in publishing material that is not in the public interest, provided that public interest is considered in isolation of other criteria.

Freedom of expression and editorial discretion

1. The Herald argues that it is not appropriate for the Ombudsman to determine whether the article and editorial are in the public interest or to ‘second guess’ an editorial decision. The newspaper contends that this is tantamount to undermining editorial discretion and therefore freedom of expression. It further avers that where there are differing views the editor should be free to exercise discretion and that it is inappropriate for the Ombudsman to ‘second-guess’ the editor.
2. In Khumalo (para 25) we are reminded: “[A]lthough freedom of expression is fundamental to our democratic society, it is not a paramount value. It must be construed in the context of the other values enshrined in our Constitution. In particular, the values of human dignity, freedom and equality.”
3. It is instructive that the press is reminded of the limitations of this freedom. It is these limitations in law that apply in this case, and particularly in the ethical conduct as prescribed the Press Code. The Press Ombudsman’s role is neither to undermine editorial discretion, nor to ‘second guess’ editors’ decisions, but to ensure that the Press Code, through the mechanism of its office, ‘offers a non-statutory avenue for the mediation and adjudication of complaints against the press.’
4. This appeals process functions as part of this mechanism, with the participation of both public and press representatives to ensure more diverse input in determinations and resolutions of disputes preceded by complaints against the press. The findings by the Press Ombudsman and related structures are mandated by the Council and their determinations are consistent with the code and relevant procedures.
5. The courts recognise that it is the function of the law of defamation to hold a balance between the competing interests of freedom of expression on the one hand, and privacy, dignity and reputation on the other. Similarly, the Press Ombudsman recognises that it is the function of the Press Code to maintain a balance between freedom of expression and ethical standards in journalism.
6. This panel, in making a finding in respect of balancing the competing interests of freedom of expression and ethical journalism, has both the responsibility and the prerogative to assess editorial discretion. In fulfilling this role the panel is serving the public interest and cannot admit to ‘second-guessing’ editors’ decisions or undermining their discretion. This includes editorial decisions relating to the placement of articles and their relative prominence in the newspaper.
7. In section 2.6 the Press Code prescribes ‘retraction, correction or explanation’ of ‘appropriate prominence’ in respect of sanctions for breaches of the code. The Herald’s assertion that the placement or prominence of articles are beyond the discretion of the Ombusdman is clearly inconsistent with the logic of this section of the code. It is naïve of anyone to argue that editorial discretion relating to the formatting, design and placement of newspaper content has no effect on readers or that editorial decisions in this respect should be beyond the discretion of the Press Ombudsman.
8. A similar point is made by the Herald about newspaper headlines. Counsel for the Herald at the appeal hearing argued that headlines have no relevance to unnecessary harm and that the two are independent and mutually exclusive.
9. The code stipulates in section 10.1: “Headlines and captions to pictures shall give a reasonable reflection of the contents of the report or picture in question.” It is inconceivable that the code would make this stipulation if the Herald’s contentions were true.
10. In particular, the editorial discretion of placing the article on the front page, the headline “Killer in plea for second chance” and the sub-headline “Ex-policeman who hacked wife to death had record cleared, gets job at NMMU” are constructed with a view to convey the two key messages of the article relating to Mr Schwarz’s criminal record and his job at NMMU. In essence, the narrative of Mr Schwarz’s past is re-conjured in the headline.
11. In addition, the headline generates reader interest through sensational placement, prominence and design. No commercial newspaper can deny the importance of these decisions in newspaper sales. No commercial newspaper can deny that such editorial decisions, amongst others, are a vital function in newspaper sales.
12. As is evident from this case, editorial decisions relating to article placement or headlines or whether an article is in the public interest have far-reaching ethical implications for the press. For this reason, amongst others, the Press Ombudsman has proper discretion and a responsibility to consider these functions in his or her adjudication of a complaint against the press. The Herald’s contention in this respect is therefore rejected.
13. Mr Schwarz’s criminal record had been expunged. This is the crucial fact on which ethical considerations relating to publishing material on him should be based. Adding considerably to the weight of this merit of his argument is the fact that Mr Schwarz is rehabilitated, that sixteen years have lapsed since the crime was committed and that he worked tirelessly to re-build his personal relations, dignity and reputation. In a single article which denied him that ‘second chance’ he was unnecessarily harmed and set back many years.
14. As shown above, there are sound legal arguments pointing to a proscription for publishing articles like the Herald had published. However, given the provisions of the Press Code, there are even more compelling ethical reasons for this proscription. It is not ultimately a matter of what is legal to publish, to the exclusion of responsible and ethical journalism. Furthermore, the standard for assessing ethics and responsibility are not to be found in law, but in the Press Code.
16. Neither the article nor the editorial comment are in the public interest. The Herald also did not exercise due care and consideration to avoid unnecessary harm in publishing the article and the editorial.
17. However, only the article is in breach of the following sections of the Press Code:

Section 4.1

The press shall exercise care and consideration in matters involving the private lives and concerns of individuals.

Section 4.2

The press shall exercise care and consideration in matters involving dignity and reputation. The dignity or reputation of an individual should be overridden only in the following circumstances:

Section 4.2.4

It was reasonable for the article to be published because it was prepared in accordance with acceptable principles of journalistic conduct and in the public interest.

1. There is no breach in respect of the editorial.
2. The appeal is dismissed.
4. The Herald is directed to publish the following text on its front page:

The Herald apologises to Mr Davrin Schwarz for the pain and distress it caused him by publishing an article on 6 June 2013 on its front page. The article was on the expungement of his criminal record and his appointment to a position at the Nelson Mandela Metropolitan University (NMMU). The Herald acknowledges that the article was not in the public interest. We further acknowledge that the article caused Mr Schwarz unnecessary harm by not exercising due care and consideration regarding his privacy, dignity and reputation as required by the Press Code. In particular, the Herald failed to exercise care and consideration by not applying acceptable principles of journalistic conduct to weigh any possible public interest against any possible harm to Mr Schwarz’s privacy, dignity and reputation.

Mahmood Sanglay                              Date:

__________________                        15 April 2014

Panel Member (Press)