Nadine Hamman vs. Huisgenoot

This ruling is based on the written submissions of Ms Nadine Hamman and Mr Pieter Conradie (Cliffe Dekker Hofmeyr Inc), for Huisgenoot.

Even though Huisgenoot is an Afrikaans magazine, all the correspondence (including the complaint) was in English – hence the language of this finding.

COMPLAINT

Hamman complains about a picture of a minor on the front page of Huisgenoot on 14 November 2013, headlined Oom Bennie oor seun: Moet niemand dan lief wees vir hom? The sub-heading read: Griekwastad: Huisgenoot by Don Steenkamp se voog.

She complains that the minor was identified in the picture, causing him unnecessary harm; she also asks for an investigation into the allegation that Huisgenoot pays for some of its stories, including the one in question.

ANALYSIS

The context to the article was the murders of the Steenkamp family on their farm near Griekwastad, some months ago. A 17-year old boy was the only surviving member of this family, and he had been accused of these murders.

The story itself (published on page 6) was about the alleged admission of Ms Cornelia de Wet that she had been present when the murders took place, giving hope to the minor that the murderers of his family had been identified (and exonerating him in this process).

Identified; unnecessary harm

The two relevant sections of the Press Code read:

·         8.1: “The press shall…exercise exceptional care and consideration when reporting about children under the age of 18. 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 unless a custodial parent or similarly responsible adult consents, or a public interest is evident”; and

·         8.3: “The press shall not identify children who have been victims of abuse, exploitation, or who have been charged with or convicted of a crime, unless a public interest is evident and it is in the best interests of the child.”

The complaint, arguments

Hamman complains that the minor was identified in the picture, causing him unnecessary harm. She argues that the publication of the photo and placing his name on the cover was in breach of parts of Section 8 of the Press Code, that it was detrimental to his image and self-confidence, and that it exposed him to unnecessary pressure and prejudice.

She adds that, by quoting his guardian, the story implied that the minor was guilty; and, if the guardian gave his consent to the publication of the picture and his name, his motives (as well as that of the magazine) were questionable.

She explicitly states that she is not referring to the article itself, as she wants to focus on the cover of the magazine.

Huisgenoot’s reply (including some remarks of my own)

The magazine’s reply does not make sense in many respects. For example, in its defence on this issue it refers to Section 8.3 of the Code – arguing that the minor’s guardian consented to his picture being taken. However, that very section does not mention consent of a guardian at all (Section 8.1 does).

I therefore assume that Conradie meant Section 8.1 (and not 8.3).

If the minor’s guardian indeed gave his consent, then clearly there can be no breach of Section 8.1, regardless of the intentions of that custodian (as argued by Hamman). I have no reason to disbelieve Huisgenoot’s evidence that the guardian did consent to the picture having been taken (and therefore having been used).

But that is not the end of the woes. Conradie (twice) refers to Section 8.5 of the Code – a section that does not exist, neither in the present Code nor in the one that preceded it.

Again, I have to make an assumption. This time, I think that he actually meant Section 8.3, which now becomes the focus of my attention.

In this regard, he denies that Huisgenoot has revealed the minor’s identity as having been “charged with or convicted of a crime”. Conradie argues: “There is no nexus between Don Steenkamp and a person being charged with a crime”; and again: “Huisgenoot did not publish any information on the cover page that revealed Don Steenkamp as an accused in any criminal proceedings.”

My considerations

I note that Section 8.3 of the Press Code does not allow for the consent of a guardian when identifying a minor. The only exceptions are “public interest” and the “best interests of the child”.

I am cognisant of the fact that sub-sections of the Code should be interpreted in context (specifically referring to Section 8.1, which allows for the consent of a guardian). On that very same count, though, I should also take the first sentence of Section 8 into account that says: “Section 28.2 of the Bill of Rights in the South African Constitution states: ‘A child’s best interests are of paramount importance in every matter concerning the child’.”

Therefore, I now need to determine whether:

·         the minor was identified as a person having been charged with a crime; and

·         if so, if the publication of the picture was in the public interest and in his best interests.

In her reply to Huisgenoot’s response, I note that Hamman argues that any reasonable person who knew about the Griekwastad murders could have made a connection between the picture on the front page and the charge of murder against the minor.

I cannot agree more with Hamman. The accompanying words of “Griekwastad”, coupled with the minor’s name, did not leave any doubt in my mind when I first saw the picture – this was the person who had been charged with the murders (even though the magazine did not state it as such).

But I needed more than my first impressions, as the question is how the ordinary reader would have understood the picture (regardless of if the charges of murder against the minor was mentioned or not). So, I asked some other people when looking at the picture – all of whom said: “This is the child that was accused of murdering his family.” Some added: “Everybody knows that.”

However, even that was not enough to base a finding on. So I had to dig deeper.

In my ruling regarding the complaint of Mr Kirith Haria against City Press on 12 July 2013, I noted that Constitutional Court Judge Edwin Cameron said that stories should be interpreted in context if an unreasonable period has not passed between these articles.

I submit that this is the case in this specific instance. The Griekwastad murders were (and still are) big news. I do indeed think that the reasonable reader would have put two and two together – even if the story did not specifically state that fact, his name (and his town) was mentioned, and the implication should have been clear for everybody to grasp.

It was common cause that the minor was accused of the murders, and it is difficult to see how any argument can obliterate this fact. I therefore have little doubt that the child who has been charged with murder has been identified by the mere publication of his picture and the mentioning of his name and town (Griekwastad).

I am not going to fall into the trap of making a legal statement (such as, “The publication of the picture was illegal”) – I am merely saying that the publication of the photo was unethical and in breach of a Code of Ethics that is called the South African Press Code.

Based on my arguments above, I simply cannot conclude that the publication of the picture was in the public interest – and, least of all, that it was in the minor’s best interests to have done so (as required by Section 8.3 of the Press Code).

Having come to this conclusion, I have to concur with Hamman as to the unnecessary harm that the picture, accompanied by the minor’s name, may have caused him prior to the outcome of the court case. Let me hasten to add that, even if there was no such harm, the magazine has in any case breached the relevant section of the Code.

Let me repeat the relevant clause in the Press Code. Section 8.3 says: “The press shall not identify children…who have been charged with…a crime.”

Some after-thoughts:

·         The minor had been identified in the press before he was charged with murder;

·         This fact falls outside the scope of this complaint (and ruling); and

·         His identification prior to the murder charges did not exempt Huisgenoot from its obligation not to identify him after the charges had been filed.

Paying for the article

Hamman asks for an investigation into the allegation that Huisgenoot pays for some of its stories, including the one in question. She argues that this is particularly serious, as the minor was accused of criminal offences.

Section 12 of the Press Code is relevant in this case. It says: “The press shall avoid journalism in which informants are paid to induce them to give information, particularly when they are criminals – except where the material concerned ought to be published in the public interest and the payment is necessary for this to be done.”

Huisgenoot denies that it has paid any remuneration. It also argues that the minor’s guardian was not an “informant”.

The magazine quite correctly argues that Hamman’s reference to another story was irrelevant to the complaint at hand.

I have no reason to disbelieve the magazine on this issue. Even if it did pay for information used in the article, the Code allows for it. I also note that the relevant section specifically mentions criminals – which the minor is not (yet?), as a court has not (yet?) found him guilty of a crime.

FINDING

Identified; unnecessary harm

Huisgenoot identified the minor who was charged with the murder of his parents and sister, even though it did not mention this fact – and without the necessary public interest or with regards to the best interests of the child. This is in breach of Section 8.3 of the Press Code.

Paying for the article

This part of the complaint is dismissed.

SANCTION

Huisgenoot is severely reprimanded for having published the picture of a minor who was charged with murder on its front page and for having used the minor’s name next to the picture (identifying him in this process).

The magazine is directed to publish:

·         a kicker on its front page with the words: “Griekwastad: Press Ombudman severely reprimands Huisgenoot” (translated: “Griekwastad: Persombudsman berispe Huisgenoot ernstig”); and

·         the text (below) on page 6.

Beginning of text

The Press Ombudsman has severely reprimanded Huisgenoot for having published the picture of a minor that was charged with murdering his family on a farm near Griekwastad and for having used the minor’s name and town next to the picture (in fact identifying him in this process).

Ms Nadine Hamman lodged a complaint with the Ombudsman about this matter that was published on 14 November 2013, headlined Oom Bennie oor seun: Moet niemand dan lief wees vir hom? The sub-heading read: Griekwastad: Huisgenoot by Don Steenkamp se voog.

She complained that the minor was identified in the picture, causing him unnecessary harm; she also asks for an investigation into the allegation that we pay for some of our stories, including the one in question.

The context to the article was the murders of the minor’s family on their farm near Griekwastad, some months ago. The boy (17) was the only surviving member of this family, and he had been charged with these murders. The story itself was about the alleged admission of Ms Cornelia de Wet that she had been present when the murders took place, giving hope to the boy that the murderers of his family had been identified (and exonerating him in this process).

Press Ombudsman Johan Retief said that we have breached Section 8.3 of the Press Code that says: “The press shall not identify children…who have been charged with…a crime.”

He argued: “It was common cause that the minor was accused of the murders, and it is difficult to see how any argument can obliterate this fact.

“I therefore have little doubt that the child who has been charged with murder has been identified by the mere publication of his picture and the mentioning of his name and town (Griekwastad).”

Retief remarked that he was not going to fall into the trap of making a legal statement (such as, “The publication of the picture was illegal”) – he said that he was merely saying that it was unethical and in breach of a Code of Ethics that is called the South African Press Code.

“Based on my arguments above, I simply cannot conclude that the publication of the picture was in the public interest – and, least of all, that it was in the minor’s best interests to have done so (as required by Section 8.3 of the Press Code).”

Retief dismissed the complaint that we have paid for the information contained in the story. He said: “I have no reason to disbelieve the magazine on this issue. Even if it did pay for information used in the article, the Code allows for it. I also note that the relevant section specifically mentions criminals – which the minor is not (yet?), as a court has not (yet?) found him guilty of a crime.”

Visit www.presscouncil.org.za for the full finding.

End of text

A translated version of the text follows below:

Begin van teks

Die Persombudsman het Huisgenoot ernstig berispe omdat ons ‘n foto van ‘n minderjarige gepubliseer het wat aangekla is van die moord op sy familie naby Griekwastad en omdat ons sy naam en sy dorp saam met die foto geplaas het – waardeur ons hom in feite geïdentifiseer het.

Me. Nadine Hamman het ‘n klag by die Ombudsman oor hierdie saak gelê, wat ons op 14 November 2013 gepubliseer het onder die opskrif Oom Bennie oor seun: Moet niemand dan lief wees vir hom? Die onderskrif het gelees: Griekwastad: Huisgenoot by Don Steenkamp se voog.

Sy het gekla dat die foto die minderjarige geïdentifiseer en dat dit hom onnodige skade berokken het; sy het ook ‘n ondersoek aangevra oor die bewering dat ons vir sommige van ons stories betaal, insluitende die een wat hier ter sprake is.

Die konteks van die artikel was die moorde op die minderjarige se familie op hul plaas naby Griekwastad enkele maande gelede. Die seun (17) was die enigste oorlewende van hierdie familie, en hy is aangekla van hierdie moorde. Die storie self was oor die beweerde bekentenis van me. Cornelia de Wet dat sy teenwoordig was toe die moorde gepleeg is, wat hoop sou gegee het aan die seun dat die moordenaars van sy familie geïdentifiseer is (wat hom sou kwytgeskeld het).

Persombudsman Johan Retief het bevind at ons Art. 8.3 van die Perskode verbreek het wat lui: “Die pers sal nie kinders identifiseer…wat aangekla is van…’n misdaad nie.”

Hy het gesê: “Dit was algemene kennis dat die minderjarige aangekla was van die moorde, en dit is moeilik om te sien hoe enige argument hierdie feit tot niet kan maak.

“Ek het daarom min twyfel dat die kind wat van die moorde aangekla is, wel deur die blote publisering van sy foto en die noem van sy naam en dorp (Griekwastad) geïdentifiseer is.”

Retief het gesê dat hy nie in die slaggat gaan trap om ‘n wetlike stelling te maak nie (soos “Die publisering van die foto was onwettig”) – hy sê dat hy slegs aanvoer dat dit oneties was en ‘n verbreking van ‘n Kode van Etiek was bekendstaan as die Suid-Afrikaanse Perskode.

“Gebaseer op my bogenoemde argumente, kan ek eenvoudig nie tot die gevolgtrekking kom dat die publisering van die foto in die openbare belang was nie – en, die minste van alles, dat dit in die beste belang van die minderjarige was (soos vereis deur Art. 8.3 van die Perskode).”

Retief het die klag van die hand gewys dat ons vir die inligting betaal het. Hy het gesê: “Ek het geen rede om die tydskrif te wantrou oor hierdie saak nie. Selfs al het hy ook betaal vir inligting wat in die artikel gebruik is, maak die Perskode tog daarvoor voorsiening. Ek let ook op dat die artikel spesifiek die term’misdadiger’ gebruik – wat die minderjarige (nog nie?) is nie omdat ‘n hof (nog nie?) hom aan ‘n misdaad skuldig bevind het nie.”

Besoek www.presscouncil.org.za vir die volledige bevinding.

Einde van teks

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 Chair of Appeals, Judge Bernard Ngoepe, fully setting out the grounds for the application. He can be contacted at [email protected].

Johan Retief

Press Ombudsman