Ruling by the Press Ombudsman
February 21, 2013
This ruling is based on the written submissions of Mr Frik Bossert and the You/Huisgenoot magazine.
COMPLAINT
Mr Frik Bossert and his son, Schalk, complain about an article in You on 16 February 2012 and headlined I sent my man to jail. The same article appeared in Huisgenoot under the headline Tronk toe, my man!
They complain that the article contained the following inaccurate statements:
· Frik was addicted to pornography and he had an argument with his wife, Annelise, about it;
· Schalk was uncontrollable;
· Annelise was dozed when she was raped;
· Annelise had placed her son (Schalk) in Frik’s care; and
· Annelise had not seen Schalk since.
They also complain that they have not been contacted for comment prior to publication.
ANALYSIS
The article, written by Danèl Blaauw, was about Frik who allegedly “brutally” raped Annelise. According to an unnamed “legal expert” this was one of the first cases in South Africa where a man has been convicted of raping his wife. The article also quoted Annelise as saying that her son was uncontrollable.
Here are some general comments before I analyse the complaint:
· I do not know why Blaauw called the alleged rape “brutal” – all incidents of rape are brutal;
· It is a mystery to me why the “legal expert” wanted to go unnamed;
· The legal situation regarding Frik’s petition to the court is not relevant to this complaint (except when it comes to asking him for comment);
· I am not interested in the merits of the court case – my only concern is if the article can stand up to the Press Code. I am therefore not judging the Bosserts. So even if Frik is a criminal and is eventually going to go to jail, my only question still remains how reasonable and fair the article was at the time of publication;
· I am ignoring all side-arguments that are not material to the matter of journalistic ethics (of which there are quite a few examples from both sides); and
· In its response to the complaint, You/Huisgenoot mainly relied on comment from Annelise. This bothers me, as she was not responsible for writing the article – the magazine was. There is nothing wrong with asking her for comment and using that in its defence, but in the end it is the publication that is accountable for the text, not Annelise.
Pornography
The article quoted Annelise as saying that Frik had been addicted to pornography and added as fact: “Bossert raped Annelise after an argument about pornography.” (emphasis added)
Addicted
Frik denies the allegation that he was addicted to pornography and says that this has defamed him.
Annelise retorts that she lived with Frik for 13 years and that she knows that her allegation is true.
I define “defamation” as follows: “Any communication that intentionally and falsely harms a person’s reputation; decreases the respect, regard, or confidence in which a person is held; or induces disparaging, hostile, or disagreeable opinions or feelings against a person. In short, defamation is the malicious, unfair, significant lowering of one’s public image (which was worthy of dignity and reputation).”
The use of the word “falsely” above needs to be interpreted in the context of a recent court verdict that declared: “In our law, it is not good enough, as a defence to or a ground of justification for a defamation, that the published words may be true: it must also be to the public benefit or in the public interest that they be published.”
So where does this lead me to?
I do not think that someone’s image can be significantly lowered by an allegation about being addicted to pornography if that same person has already been found guilty of rape (with or without a petition against the court’s refusal for leave to appeal).
Please note that I am not in a position to decide if the statement was true or not.
Argument
Frik denies that he ever had an argument about pornography with Annelise.
On the face of it, the article stated as fact that Frik and Annelise had an argument about pornography. This is problematic, as neither Annelise nor the magazine was able to substantiate or to prove the veracity of the statement.
You/Huisgenoot argues that the same “argument” is on court record and that Frik was consequently found guilty by a court of law.
This does not hold water, as the mere fact that the matter was argued in court does not necessarily imply that the argument was true.
I also take into account that a court can hardly find someone guilty of having had an argument (about pornography), as surely it is not illegal to argue. Neither is pornography unlawful (I am not talking about child pornography here).
The court case can therefore not be of any help in this specific matter.
However, I note that, although the article presented the statement as fact, it also appeared directly in-between two direct quotes by Annelise. The ordinary reader may therefore have interpreted this statement as coming from her. On the other hand, the way in which this statement was worded may have induced other readers to interpret the statement as fact and not as opinion.
In other words, if the sentence in dispute is seen in isolation, it indeed would breach the Press Code; when interpreted in context, there is reason to argue the opposite.
So, again: Quo vadis?
The way forward is rather simple – the seriousness of the statement is decisive. If the statement had the potential to defame Frik and to cause him unnecessary harm, the benefit of the doubt will go his way; if not, it will go the other way.
In this case, the matter is merely about an argument (about pornography). The matter is therefore not that serious (much less serious than probably all the other statements and allegations in the article), which means that I am giving the benefit of the doubt to the magazine.
I have to issue a word of caution, though. If the second quotation by Annelise was more than one paragraph away from the statement of fact that is in dispute, I would have ruled for Frik. Such reporting is risky and leaves itself open to misinterpretation. A word such as “alleged” coupled with “argument” would have tied the statement much closer to Annelise.
Schalk being uncontrollable
The article said that Annelise was awarded custody of Schalk “but the youngster became uncontrollable”.
Again, the article presented this as a statement of fact, and again this was snugly wrapped between two direct quotes by Annelise.
This time, though, the allegation is much more serious and potentially much more harmful than the one about an argument.
To justify this statement, the article quoted Annelise as saying that Frik:
· told Schalk to steal documents from her house;
· spurred on his son to spy on her; and
· sent Schalk to break into her office and to go through her desk.
She reportedly added that Schalk had:
· charged her with assault;
· changed the locks of her house (based on Frik’s instructions);
· threatened her that he would set her place alight;
· vandalized her house and car; and
· called her office up to 15 times a day.
Frik and Schalk deny these allegations and assert that they defamed both of them.
Annelise says that some of these allegations were confirmed by social worker Annelie Olivier’s report before the Family Violence Court in Krugersdorp, and the others by an officer of law and by herself. She adds: “The Bosserts are doing a perfect job (in) ‘defaming themselves’. I am sure they do not need any assistance from outsiders in succeeding.”
In search for independent evidence, I asked the editor for some credible information to this effect. Were Annelise’s comments only hers, or was there some form of outside corroboration or verification available?
The documents that the editor furnished me with merely confirmed Annelise’s testimonies, but no independent source (neither from a person nor from documentation) was forthcoming.
I therefore cannot accept the truth of all of these accusations on face value.
My question now is whether the magazine was justified in publishing these allegations, as well as the conclusion that Schalk had been “uncontrollable”.
Firstly, let me take a look at the magazine’s argument in this regard. I shall add my comment on each of the bullets in italics.
The magazine states that:
· Schalk hardly ever returned home from school in time – if he sometimes did not return at all, that may have been an indication of being uncontrollable;
· he refused to answer his cell phone – this is no evidence of being out of hand;
· his marks deteriorated at school – the magazine does not state how serious this deterioration was, and, given his circumstances, I do not blame him for that;
· he was “totally irrational” in normal everyday family activities – again, the magazine does not explain exactly what it means;
· his school complained to it about Schalk’s disrespectful behaviour and the “fact” that he was caught shoplifting – disrespect and stealing are not necessarily signs of being out of control;
· he burnt debris in his room – I do not know what the extent of this fire(s) was; and
· a policeman advised him to behave and cautioned him to have respect for his mother – even so, I do not believe that this is enough to typify Schalk as having been out of control.
I do not buy the magazine’s argument on this issue, even if I take all the arguments above as a whole.
Please note that I do not know if any of Annelise’s accusations were true or not – it is not my task to establish that either. My questions are if the magazine was justified and fair in publishing her view that was untested, unverified, uncorroborated, potentially harmful and even defamatory of both Schalk and Frik?
If her remarks were just and fair, somebody needs to explain the meaning of these terms to me. This goes for both Frik and Schalk.
Defamation, though, is another story.
Firstly then, Frik: I take the following into account:
· The things that Annelise accused him of were all of a less serious nature than rape (of which he was already found guilty) – these statements could therefore hardly have lowered his public esteem significantly; and
· From what I could gather, the relationship between him and his ex-wife could not have deteriorated much or even any further. In other words, her accusations may have been reasonably true (even if I do not know if they are true or not).
Schalk: The allegations that he charged Annelise with assault and that he called her office up to 15 times a day were not so serious that I can construe them as defamation.
However, the following accusations represent a different kettle of fish (I mention them in order of importance):
· Schalk vandalized her house and car;
· He threatened his mother that he would set her home alight; and
· He changed the locks of her house.
Again, I do not know if these accusations are true or not. I also note that Annelise never charged her son with these alleged actions and threat of violence.
In the absence of any supporting evidence, and realizing that the magazine had only Annelise’s testimony to go on, I have to conclude that the publication of these damaging statements did indeed lower Schalk’s public image significantly (read: defamation).
As Annelise based her allegation about her son having been uncontrollable mainly on these accusations, it follows that this specific statement was also defamatory of him.
It follows that the article did not take the necessary care and consideration regarding his reputation and dignity. I do not believe that public interest may have overridden these matters in this case, as the main focus of the article was Annelise and Frik and not Schalk.
Dozed when raped
As this part of the complaint is potentially particularly damaging to Frik, I quote the whole passage in question:
“In 2002 Annelise began to suspect she was being raped at night. ‘We were no longer intimate but we shared a room. I would sleep really deeply and when I woke up I wouldn’t be able to open my eyes. I felt tired and knew I was being raped. The first time I thought I was going crazy but the second and third time I knew what was happening’.”
Frik complains that this passage falsely implied that he had dozed Annelise before he had raped her. He argues that the court rejected these allegations and found him to be not guilty on this matter.
Annelise does not deny Frik’s use of the word “doze” and also not his assertion that the court rejected these allegations. However, she says that “even though the court did not take the rape chemical cases forward it does not mean that it did not happen…”
I submit that the ordinary reader would have interpreted this passage to indeed mean that Frik doped Annelise before raping her – even if the article did not use the word itself. Nobody can “sleep” so deeply as not to wake up and notice what was going on.
These are my other considerations:
· You/Huisgenoot did not provide me with any evidence that Annelise’s allegations were reasonably true, nor did it furnish me with documents to the effect that the court had accepted her version of this part of the story – I therefore have no grounds to accept that the statement in dispute has a factual basis;
· The underhand way of the reporter to not directly use the word “doped” or “dosed”, but to surely imply it, was disingenuous.
· Most importantly: This office has to take into account that rape is one (always terrible) thing, but that doping a woman in order to rape her is another matter. I also take into account that Annelise alleged that this did not happen once, but a few times.
Given the absence of any denial on Annelise’s part that the court did not find him guilty on this issue, as well as the lack of any concrete evidence to this effect, I cannot but find her statements to be fundamentally unfair to Frik.
However, Frik was found guilty and has been sentenced for raping Annelise. In light of these facts, I cannot reasonably conclude that her testimony significantly lowered his public image.
Still, Annelise’s insinuation that she was doped or dozed before being raped was not reason enough for the magazine to have published those statements. I am convinced that this reportage caused Frik some real, unnecessary harm – the article did not take exceptional care and consideration in matters involving his private life and concerns, and in the process the magazine also did not show any proper regard for his dignity, as it should have done according to the Press Code.
Annelise placing Schalk in Frik’s care
The article stated as fact that Annelise placed Schalk in Frik’s care.
This time, the statement was not placed between two quotations. Therefore, I cannot but interpret it to be a statement of fact and not as an opinion.
Frik complains that it was the court, and not Annelise, that placed Schalk in his care.
You/Huisgenoot says that Annelise disagrees. She claims that the high court ruled that it was in Schalk’s best interest to reside with her. “Unfortunately…the Bosserts did not adhere to the findings and Schalk never returned.”
Annelise’s defence is shaky, to put it mildly:
· Surely, if the court decided that Schalk should be placed in her care, as she says that it did, why on earth would she then place her son in Frik’s care? If her version of events was correct, it begs the question why she had sidelined the court’s decision (irrespective of what circumstances she had to face). Was she therefore not in attempt of court?
· Annelise also contradicted herself – on the one hand she said that she had placed Schalk in Frik’s care, but on the other hand she stated that “the Bosserts did not adhere to the findings and Schalk never returned” (emphasis added). This implied that the initiative for Schalk living with his father came from them and not from her.
I therefore conclude that it would be unreasonable for me to accept the veracity of the statement that Annelise placed Schalk in Frik’s care – I do not believe this to be reasonably true.
Annelise not seeing Schalk ‘since’
The story said that Annelise has not seen Schalk since Schalk lived with his father.
The Bosserts deny that this is true and argues that Annelise has seen Schalk many times at the courts.
Annelise argues that she hardly considers “seeing” her son at court as constituting meaningful contact. She states that in a period of seven years he paid her no visit, and he did not even attend his own birthday parties.
It does not matter how many times Annelise “saw” Schalk in court. The statement in dispute did indeed not represent any sort of meaningful contact, as Annelise justifiably argued. I submit that a literal interpretation of the word “see” would do injustice to what Annelise clearly meant to communicate.
Not asked for comment
Frik and Schalk complain that the magazine did not contact them for comment. They say that they realize that the article was partly about court reporting, but they also argue that Blaauw did interview Annelise and that the journalist should therefore have listened to their side as well.
You/Huisgenoot says that it has covered Annelise’s story as she was one of the first women who accused her husband of rape within a marriage. “We did not ask her husband (Frink) for comments as he is still appealing his guilty verdict and this was Annelise’s story of her struggle and experiences regarding her husband.” The magazine adds that the article was about a legal issue and argues that it was in the public interest. It states that the story was told from Annelise’s perspective.
Firstly, there is nothing wrong with writing an article from someone’s perspective – I take into account that the text was not a news story. The public interest in this case is also beyond dispute.
The dilemma is that the magazine’s argument is correct from a legal perspective, but not from an ethical one.
On the legal side, a publication is in fact not allowed to get comment from someone who is tied up in a court case. Technically, the magazine is therefore correct.
On the other hand, this does not give a publication a free pass to publish derogatory, pejorative or even defamatory allegations without balancing them out with facts and context (read: the statements about Schalk who was allegedly uncontrollable, and the reportage of the “doping”). Without such balance the article became fundamentally unjust and unfair – and in Schalk’s case, also defamatory.
From an ethical perspective, therefore, the magazine should have refrained from publishing unfair, damaging statements until the other party was in a position to refute the allegations.
So, therefore: If the article was balanced and published the court’s rejection of some of Annelise’s accusations, it would to some extent have sufficed. I have little doubt that this neglect was unfair to them and that it has caused them unnecessary harm.
Note that I am not saying that the magazine should have refrained from publishing an article – I am merely arguing that it should have been more circumspect and responsible in this process.
FINDING
Pornography
Addicted
The part of the complaint that deals with defamation is dismissed.
Argument
This part of the complaint is dismissed.
Schalk being uncontrollable
Frik: The relevant sentences with reference to him was unfair and in breach of Art. 1.1 of the Press Code that says: “The press shall be obliged to report news…fairly.”
The complaint with regards to defamation is dismissed.
Schalk: The statement that he was uncontrollable, as well as other references to this effect were unfair to as well as defamatory of him.
This is in breach of:
· Art. 1.1 of the Press Code that says: “The press shall be obliged to report news…fairly”; and
· Art. 5: “The press shall exercise care and consideration in matters involving dignity and reputation…”
Dozed when raped
The magazine was not justified in publishing the unfair allegations in question. This is in breach of the following sections of the Press Code:
· Art. 1.1: “The press shall be obliged to report news truthfully, accurately and fairly”;
· Art. 1.2: “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…”;
· Art. 4.1: “The press shall exercise exceptional care and consideration in matters involving the private lives and concerns of individuals…”; and
· Art. 5: “The press shall exercise exceptional care and consideration in matters involving dignity…”
Annelise placing Schalk in Frik’s care
The statement in dispute is not reasonably true. This is in breach of Art. 1.3 of the Press Code that says: “Only what may reasonably true, having regard to the sources of the news, may be presented as fact… Where a report is not based on facts of is founded op opinion, allegation, rumour or supposition, it shall be presented in such manner as to indicate this fairly.”
Annelise not seeing Schalk ‘since’
This part of the complaint is dismissed.
Not asked for comment
The complaint about not having been asked for comment is dismissed.
However, the publication of Annelise’s damning, unfounded and out-of-context statements (which did not represent the whole article) was fundamentally unfair to the Bosserts and it caused them unnecessary harm.
This is in breach of:
· Art. 1.1 that says: “The press shall be obliged to report news…fairly”; and
· Art. 1.2: “News shall be presented in context and in a balanced manner…”
SANCTION
You/Huisgenoot is directed to apologise to:
· Frik for unfairly implying that he doped or dozed Annelise before raping her (a few times) and for not reporting the fact that the court rejected these remarks;
· both Schalk and Frik for unfairly stating that the former was uncontrollable (as the reasons for this offered by the article involved both of them) and for defaming the youngster; and
· both for causing them unnecessary harm.
The magazine is reprimanded for unjustifiably stating that Annelise placed her son in Frik’s care.
The magazine is requested to interview the Bosserts as soon as Frik’s petition is finalised (if they wish to do so) and to publish their views on all the matters relating to its unfair reportage as stated above. The Bosserts will not be allowed to make any allegations against Annelise in this process.
You/Huisgenoot is directed to publish the following text on either page 14 or 15 and to use the name “Bossert(s)” and the word “apologise/apology” in the headline:
You/Huisgenoot apologises to Mr Frik Bossert for unfairly implying that he dozed or doped his (then) wife Annelise before raping her and for not reporting that the court rejected these remarks; we also apologise to him and his son, Schalk, for publishing an unfair quote by his mother (Annelise) to the effect that the latter was uncontrollable – and for defaming him in the process.
We realize that we have caused both of them some unnecessary harm.
This comes after the Bosserts lodged a complaint with the Press Ombudsman about an article in You on 16 February 2012 and headlined I sent my man to jail.( The same article appeared in Huisgenoot under the headline Tronk toe, my man!)
The article, written by Danèl Blaauw, was about Mr Bossert who allegedly “brutally” raped his wife Annelise – according to an unnamed “legal expert” this was one of the first cases in South Africa where a man has been convicted of raping his wife. The article also quoted Annelise as saying that her son was uncontrollable.
The passage about the “dozing” or “doping” read: “In 2002 Annelise began to suspect she was being raped at night. ‘We were no longer intimate but we shared a room. I would sleep really deeply and when I woke up I wouldn’t be able to open my eyes. I felt tired and knew I was being raped. The first time I thought I was going crazy but the second and third time I knew what was happening’.”
Press Ombudsman Johan Retief said: “… Annelise’s insinuation that she was doped before being raped was not reason enough for the magazine to have published statements to this effect. I am convinced that this reportage caused Frik some real, unnecessary harm – the article did not take exceptional care and consideration in matters involving his private life and concerns, and in the process the magazine also did not show any proper regard for his dignity, as it should have done according to the Press Code.”
The other passage in dispute was the statement by Annelise that Schalk became uncontrollable.
To justify this statement, the article quoted Annelise as saying that Frik:
· told Schalk to steal documents from her house;
· spurred on his son to spy on her; and
· sent Schalk to break into her office and to go through her desk.
She reportedly added that Schalk had:
· charged her with assault;
· changed the locks of her house (based on Frik’s instructions);
· threatened her that he would set her place alight;
· vandalized her house and car; and
· called her office up to 15 times a day.
Retief said that if we were justified and fair in publishing untested, unverified, uncorroborated, potentially harmful about the Bosserts, “…somebody needs to explain the meaning of these terms to me”.
However, he dismissed the complaint that we have defamed Frik in this regard. “The things that Annelise accused him of were all of a less serious nature than rape (of which he was already found guilty) – these statements could therefore hardly have lowered his public esteem significantly,” he argued.
Retief added, though, that some of Annelise’s accusations against Schalk have defamed him as they have significantly lowered his public image, and argued that we did not take enough care regarding his dignity and reputation.
He reprimanded us for unjustifiably stating that Annelise placed Schalk in Frik’s care.
Retief dismissed the complaints about Annelise having alleged that Frik was addicted to pornography (which did not necessarily made the accusation true), and the statement of fact that the two had an argument about it. He also rejected the complaint about Annelise having not seen her son “since” some alleged incidents, as well as the Bossert’s claim that we should have asked them for comment (as the matter was sub judice at the time of publication).
He added, though, that while legally we should not have asked Frik for comment (as his petition to the court to allow him to appeal was still ongoing), from an ethical perspective we should have refrained from publishing unfair, damaging statements until he was in a position to refute the allegations.
Retief requested us to interview the Bosserts as soon as Frik’s petition is finalised (if they wish to do so) and to publish their views on all the matters relating to its unfair reportage as stated above. The Bosserts will not be allowed to make any allegations against Annelise in this process.
We hereby apologise for the unnecessary harm that our reporting has caused the Bosserts.
Visit www.presscouncil.org.za for the full finding.
End of text
Appeal
Please note that our Complaints Procedures lay down that within seven 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 Khanyim@ombudsman.org.za.
Johan Retief
Press Ombudsman