Re: Complaint number 7781 to the Press Council
National Lotteries vs GroundUp
Request to Adjudicate
Background
1.On 21 February 2020, the National Lotteries Commission filed complaints about a number of articles published in the online publication GroundUp.
Five articles were cited in the complaint. These are:
2. The Lotteries Commission complained that the articles were not truthful or accurate or fair and contravened clauses 1.1; 1.3 and 1.7 of the Code. The Lotteries Board also complains that the headlines were misleading, transgressing clause 10.1 of the Code.
3. The acting Public Advocate Fanie Groenewald, in a letter to both the Lotteries legal representative, Mr Ally Makgopa and the editor of GroundUp, Mr Nathan Geffen, has pointed out that even if one were to take the date of the last in the series of stories the Lotteries Board complains of (17/12/19) and if one were to allow generously for the time period of the Christmas/New year holiday period, the complaint is still 35 working days after the last story was published. The time span between the October and November article and the date the complaint was laid (21/2/20) is even greater.
4. Added to this is legal action being taken against GroundUp by the COO of the NLC. There was also a recent report of criminal charges being threatened by the NLC against one of the reporters, Mr Raymond Joseph, as well as the publication.[1]
Argument of the NLC
5. In its appeal to the Ombudsman, arguing against the decision of the acting Public Advocate, the legal representatives for the NLC argue the articles contained “fundamental factual inaccuracies”, as well as being unbalanced.
6. Both Mr Groenewald and before that Ms Mobara (Executive Director of the Press Council who acted as Public Advocate for a period) asked if there was any pending litigation against GroundUp “in relation to the articles which are the subject matter of your client’s complaint..”
7. They also asked what the reason for the long delay was between the last in the series of articles they found offensive being published and the complaint being lodged.
8.In its response, the legal representatives for the NLC advised that it “has not instituted any legal proceedings against GroundUp. The COO has instituted action against GroundUp in his personal capacity and the NLC is not party to those proceedings as the issues thereof have no bearing on the NLC. The legal proceedings instituted by the COO were premised on the articles which related specifically to the COO and allegations of impropriety on his part.”
The representative of the NLC said it did not instigate legal proceedings “nor will it be footing the bill for the COO’s legal costs.”
9. The NLC argues that the lateness was partly due to the following circumstances: when it became aware of “the flurry of articles”, it took a decision to lodge a complaint with the Press Ombudsman and thereafter seek legal counsel. “The NLC then decided to withdraw its complaint on the basis that litigation processes would ensue and therefore jeopardise the complaint process with the Press Ombudsman.”
10. The NLC’s legal counsel then advised them that it, as a body, could not sue for defamation, citing a court decision from 1946.[2] As the NLC is an organ of state it cannot sue for defamation.
11. It then took time, argues the NLC, to identify which among approximately 54 articles, “to consider and identify….fell within the ambit of the Press Code. We did so by considering amongst other whether any of the articles were the subject matter of any litigation, whether such articles would not form part of contemplated litigation and whether there were any potential complainants would could complain or litigate on the same matters as contemplated in paragraph 1.7.2 of the Press Code.” This states: “Where the Public Advocate has reason to believe that in addition to the complainant who has answered the said questions in the affirmative, there may be other potential complainants who could complain or litigate on the same issues as the first mentioned complainant, he or she may likewise defer acceptance of the complaint pending the finalisation of the pending or contemplated legal proceedings.”
12. The NLC argues that the identification of such articles “took some time.” As soon as this was done, “the complaint was promptly lodged with the Press Council.”
13. The five articles it complains about “are incapable of being litigated upon. As such the NLC’s only available remedy lies squarely and solely with the Press Council.” The NLC has also undertaken “not to launch any court processes in relation to the five identified articles.”
14. They argue there is no alternative remedy to them but through the Press Council.
15. Although the COO who is a senior executive on the NLC “and has been cited in a number of media reports as having acted improperly and implicated in relation to grant funding” has instituted legal action against GroundUp, this is in his personal capacity and “not the NLC as an entity.”
16. For this reason, argues the NLC, there are “no legal proceedings instituted by the NLC against GroundUp” for the articles that form the basis of its complaint.
These articles do not relate to the COO or grant beneficiaries but only to the NLC and the Board.
17. Mr Makgopa, the NLC’s legal representative, also stated “the criminal charges and the intended legal proceedings have nothing to do with the complaints which have been lodged by our client.” (For more on the criminal charges, see below)
18. The legal representatives argue the NLC was “within its rights to seek legal counsel. On any issue relating to the campaign against it by GroundUp and its journalists…Moreover, GroundUp has not heeded calls for submission of evidence of corruption and maladministration to an independent party for proper assessment.”
The decision by the Public Advocate
19. It is worth going back to the acting Public Advocate’s decision here. He said that he was first tempted “to give the NLC the benefit of the doubt and accept the complaint on the condition that were it at any stage during the proceedings before the Press Council…to come to light that the articles/issues indeed formed part of the legal proceeding instituted by the COO, such proceedings would be stopped and the acceptance of the complaint fell aside.”
20. However, the time element was also crucial in his view.
The NLC argued it needed time to identify which of the 54 articles “would fall within the ambit of the Press Code” and when this was done ‘the principles of natural justice dictate that the Press Council must consider the complaint particularly given that the Press Ombudsman is given a discretion by the Procedure to accept complaints outside of the 20-day prescribed period.”
21. However, as the acting Public Advocate says, the first story complained about was published on 9 October 2019, the last on 17 December, 2019. “Even if we were to be very lenient and consider the time after 17 December 2019 to the end of the year as well as the first week of January to be ‘holiday’ time, the complaint lodged on 21 February 2020 was after 35 working days after the last story had been published.” He says although he has some sympathy with the NLC argument, this delay (particularly from the October and November stories) “is just too long. Surely with their resources the NLC could have reacted more quickly.”
GroundUp’s argument
22. In his argument to the Public Advocate against accepting the complaint, Mr Geffen, editor of GroundUp, writes “the NLC itself and the COO individually have instituted or threatened to institute litigation against GroundUp.” This would be a breach of clause 1.7.3 of the Complaints Procedure which states: “Where at any stage of the proceedings it emerges that proceedings before a court are pending on a matter related to the material complained about, the Public Advocate, the Ombud or the Chair of Appeals, depending on status of the complaint at that stage, shall forthwith stop the proceedings and set aside the acceptance of the complaint by the Public Advocate, unless it is shown that the issue complained about is not among those that the court is adjudicating.”
23. The NLC has threatened to lodge criminal charges (against Mr Raymond Joseph and the publication) and the COO of the NLC has launched proceedings against the publication in the high court for defamation. “While the NLC may try to argue that its COO is suing in his personal capacity and therefore it may still complain, this would be an attempt to use a technicality to abuse the purpose of 1.7.3.”
24. He also argues that the NLC has “considerable resources and access to lawyers…there is no reasonable excuse for it to be filing complaints outside the 20 working day time period.” The reason given for the delay – that it needed to “contemplate litigation” - is not valid as it has in fact “launched litigation, both as the NLC and via its COO in his personal capacity.”
Decision
25. There are two key issues here:
26. The litigation: The NLC argues that the litigation has been laid by its COO “in his personal capacity”. However, as the NLC itself argues, it is constrained from taking legal action itself as a state body. The litigation instituted by the COO is in relation to articles published by GroundUp on the Lotteries Commission. Thus it is somewhat obfuscating to say that there is no litigation launched by the NLC itself.
It is not clear at all that “the issue complained about” is separate from the material being litigated over.
27. In addition, there have been criminal charges threatened against one of the writers, Raymond Joseph, and, according to Mr Geffen’s document, against the publication itself. The NLC has notified both parties of its “intent” to lay such charges in connection with the contravention of Regulation 8, which makes it an offence to “for a distributing agency to reveal details of both grant applications and awarded grants.”[3]
28. My concern is that were I to adjudicate these complaints, the proceedings, and outcome may unfairly influence the court proceedings.
It would also, in my view, be a transgression of the spirit of the Press Code, which aims to settle disputes about the ethics of journalism in a way that is not financially punitive to either party.
29. The timing of the complaint: the NLC argues that it received legal advice only in December 2019 that it could not sue the publication for defamation as it was an organ of state. They then had to work through 54 articles to identify those that they thought may transgress parts of the Press Code.
30. But as the acting Public Advocate points out, the first article complained about was published on 9 October, 2019 and the last on 17 December 2019. As the complaint was received only on the 21st February, 2020, this would mean a delay of more than four months since the publication of the first article and at least 35 working days (being lenient as he pointed out) from the date of the last published article.
31. The delays point to the Press Code being used as a last, not first, resort. This is against the spirit of the Press Code. On its own admission, the NLC spent considerable time seeking legal advice before deciding to lay this complaint. This partly accounts for the lateness but also indicates that it laid the complaint only when it felt that its other remedies were not viable.
32. Moreover, there is a precedent for lateness being frowned upon even after an adjudication has taken place. In the case of Sadmon vs Spotlight, Judge Ngoepe notes that “the longer a delay, the more cogent the explanation should be.”
In that case the delay – which also spanned the Christmas period – was about 40 days (not taking into account the Christmas and New Year weeks). The previous Ombudsman had given condonation for it, against the recommendation of the Public Advocate, and I felt bound to adjudicate. But as the Chair of the Appeals panel, Judge Ngoepe, cautioned it set a “bad precedent”.
33. The rules exist to ensure fairness to complainants and the publications concerned, not only those involved in a specific dispute but others whose cases may have to wait longer for adjudication.
34. In the light of the above, I support the position of the acting Public Advocate and decline to adjudicate this complaint.
In terms of Section 1.8 of the Complaints Procedure, the complainant may take appeal this decision to the Chair of the Appeals Panel within seven working days of this decision being issued. He can be contacted at khanyim@ombudsman.org.za
Pippa Green
Press Ombudsman
19/3/20
[1] https://www.groundup.org.za/article/lottery-threatens-criminal-charges-against-journalists/
[2] Die Spoorbond and Another v SA Railways; Van Heerden and Others v SA Railways, 1946
[3] https://www.groundup.org.za/article/lottery-threatens-criminal-charges-against-journalists/