Ruling by the Press Ombud and a Panel of Adjudicators
8 December 2018
Particulars of complaint
Lodged by: Mr Dean Peacock and Ms Heather van Niekerk, co-executive directors of Sonke Gender Justice (Sonke)
Date of article: 9 September 2018
Headline: There is a new man
Page: 5
Online: News24
Authors of article: Tian Johnson, Nokhwezi Mabutyan
Respondent: Dumisane Lubisi, executive editor
HEARING
Place and date: Johannesburg; 4 December 2018
Complainant represented by: Dean Peacock
Publication represented by: Dumisane Lubisi
Also in attendance: Michael Power; Avani Singh, both from Power Singh Inc.
Members of panel: Public representative: Peter Mann
Media representative: Joe Thloloe
Complaint
In general, Sonke complains that the article was based on wrong, untruthful and distorted information which were “deeply damaging” to its reputation. It says it is especially concerned about the allegation that it had “mishandled” allegations of sexual harassment in the organisation.
In particular, the organisation complains that the:
Sonke concludes that the reportage was malicious and has unnecessarily tarnished its reputation.
The text
The writers, who both worked at Sonke for some time, stated there were allegations against a certain Mr X regarding sexual harassment. He was the organisation’s national project manager for a news campaign at the time. Mr X’s task reportedly was to help men reinvent themselves and to “promote positive male norms”. (Hence the title of the article.)
Despite these allegations, the article said that “for nearly a decade there was no sanction and Mr X continued to manage the programme tasked with changing the face of ‘masculinity’ in South Africa”.
However, some four male staff members complained to a line manager that they were being sexually harassed by Mr X. “Instead of action being taken, Sonke staff were warned to be cautious of what was said about our colleagues as it could be regarded as defamation of character,” the authors wrote.
The column made the point that it took Sonke much too long to act against Mr X.
It continued: “The silence reveals how deep the race, class and power rot has set in to civil society. Together we need to be urgently supporting the creation of safe spaces to rage, to hurt, to say it, to name it. To name ‘them’. We don’t have a choice, we don’t have the luxury of waiting, we don’t have the luxury to not name perpetrators. We ignore survivors at our peril.”
The arguments
Sonke says it recognises and respects the importance of the right to freedom of expression, including the importance of protected comment in order to facilitate the exchange of ideas and debate. However, it argues this is not an unbridled right and this freedom is not absolute. The comment must still be based on facts that are true – which, it says, did not happen with the article in question.
Article based on false information
SONKE complains about the following:
It adds the claim that Mr X was a “senior Sonke staff member” was also incorrect, as he was was never a member of senior management, and that the article falsely stated that Johnson was employed by Sonke for three years.
The Williams report
The organisation says it sought an independent report from Adv J.L. Williams in August this year. This report, headlined, Assessment of Sonke Gender Justice’s approach to addressing and preventing sexual harassment reads: “There were three cases involving formal action taken against employees accused of sexual harassment in the past. The formal cases have been dealt with properly and in accordance with the legal obligations on employers and the policy in place at the time. The disciplinary procedures followed have been substantively and procedurally fair. Sonke has acted swiftly in all cases. The attacks on Sonke in the social media about the way the organisation has dealt with previous case were largely without merit and have been unhelpful during this assessment. Sonke should guard against this attack in the media diverting attention from the real issues that need to be addressed in building a sexual harassment free workplace.”
Sonke says this clarifies that the allegations regarding the handling of sexual harassment complaints were untrue. Instead, and contrary to the position espoused in the article, Sonke in reality dealt with cases properly, in accordance with the law, promptly, and in a manner that was both procedurally and substantively fair.
It concludes: “The Williams report therefore offers a clear and firm basis that the facts on which the article are based are untrue.”
Mr X; Johnson
Sonke says the following aspects of the article were also untrue:
Referring to an article in the Mail & Guardian in this regard, Sonke adds that Johnson should reasonably have known its position in relation to its handling of allegations of sexual harassment.
Sonke also notes that Johnson has made repeated allegations against the organisation on social media and other news platforms that were baseless and harmful to its reputation. Sonke says it has sought to resolve the matter with Johnson amicably by inviting him to discuss his concerns directly with the organisation, which he has declined to do. Instead, he has continued to tarnish the good name of the organisation in the media. Sonke submits that Johnson “is acting out of malice towards the organisation, with the article being a further instance of his misconduct in this regard”.
LUBISI denies Sonke’s general complaint, as documented above.
He says it is a fact that Mr X was a colleague of both complainants at Sonke and that he remained a staff member after allegations of sexual harassment. He adds the claims that were raised in 2009 might have been dealt with then, whereas the “lived experiences” of the reporters and colleagues who interacted with them are different.
The editor says the writers maintain it is true that Sonke warned its staff to be cautious as it could be regarded as defamation of character. He argues that this justifies the use of the words “instead of action being taken” in the article, which was and remains the writers’ perception. He also notes that the text was an opinion article, and argues that the words “instead of action being taken” was their perception based on their experience at Sonke.
He also submits that:
The Williams report
Lubisi says the Williams report did not form part of the article as published by City Press and as such is not relevant to the complaint, and adds that the writers were not party to the report. Therefore, he says that this office should not accept this argument – but should it decide otherwise, City Press then requests a full disclosure by Sonke on its past dealings with Williams on matters involving sexual harassment at the organisation. “Such disclosure could then be interrogated to see if there is no conflict of interest where Sonke enlisted the services of Advocate Williams knowing full well of what the outcome would be,” he states.
He adds, though, that Sonke’s argument misses the aim of the opinion article – processes are one thing, whereas practice and culture are something different. “The lived reality of survivors of sexual harassment at Sonke cannot be called untrue,” he concludes.
Mr X; Johnson
Lubisi emphasises that Mr X formed part of Sonke senior management. He says the article pointed to a senior staff member and that Mr X continued to manage the programme that he was tasked with. He points out that Sonke says Mr X was not part of senior management – while he was the national project manager for a new campaign called Brothers for Life.
He says Sonke initially claimed that Johnson was in its employ for a year and that he had lied about the number of years he had worked there. However, when the newspaper disputed this, Sonke approached the Ombud and changed its stance on how long Johnson had worked there. He says Johnson worked at Sonke for over a year – whether on a full-time, or on a contract basis. In any event, he asks: “Does the amount of time that Mr Johnson was employed at Sonke make his experience, reality and perception of sexual harassment less valid? The authors wrote about their experiences when in the employ of Sonke.”
The editor also argues Sonke’s stated position that it had acted decisively did not negate Johnson’s opinion based on his experience.
Finally, he says City Press is not aware of the repeated accusation that Johnson allegedly has made in the media and therefore cannot address this aspect of the complaint; besides, he says, it was not part of the published article. He concludes, though: “City Press is not in the business of tarnishing any person or organisation’s image.”
SONKE replies the crux of the article sought to:
It says this was factually inaccurate, and asserts that it dealt with the 2009 incident as follows:
Sonke says it dealt with a complaint against Mr X in 2015 as follows:
It says this information was detailed in the Williams report, and would have been made readily available to the City Press if so requested. “It is therefore patently untrue to aver that Sonke took no action after the 2009 incident,” it argues.
Sonke remarks that, even when presented with the facts regarding the measures it had taken to address the complaints against Mr X, City Press is still unwilling to accept this.
Moreover, it continues, City Press justifies the use of the words “instead of action being taken” in the article on the basis that this “was and remains the perception of the authors” – while this is not an answer to the complaint. It says that while the writers may have an unbridled right to freedom of opinion, that right is subject to certain limitations when such opinions are expressed in the public domain. “The publication of such opinions requires that they be based on facts that are true. This is – understandably – what is required by the Press Code, to ensure that persons and organisations are not wilfully maligned without basis or substantiation,” it argues.
Sonke also says the newspaper’s distinction between “processes” and “practice and culture” is without merit. It submits: “The processes – including disciplinary and investigatory processes – have been put in place by Sonke precisely to ensure that the practice and culture in the organisation cohere with the values of the organisation. Where people engage in conduct that is out of line with these values, it is again these processes that seek to ensure that they are appropriately sanctioned.”
Moreover, it adds, Sonke has at no point called the “lived realities” of survivors of sexual harassment to be untrue. It notes, though, that the writers did not themselves aver having personal experience of wrongdoing within the organisation, and, therefore, it is therefore not their own experiences that were addressed in the article.
The organisation also says it would never treat the lived realities of survivors lightly. “… following the dismissal of Mr X, Human Resources held debriefing sessions with the staff [who] had reported the allegations of sexual harassment, and free counselling was offered. To our knowledge, Sonke has addressed the lived realities of the affected persons in a supportive, sensitive and confidential manner. The City Press and the authors cannot denounce the true state of facts simply because this does not cohere with the authors’ misconceptions of how matters were handled at Sonke,” it argues.
The Williams report
Sonke says had the newspaper contacted it prior to publication, it would have drawn City Press’ attention to the Williams report as it dealt with precisely the same matters as those covered in the article.
It reiterates that the report is of direct relevance to the matters in question, and provided a firm, objective basis for stating that the article was factually incorrect and misleading.
Mr X; Johnson
The organisation says: “It is unclear on what basis the City Press seeks to impugn the integrity of both Advocate Williams and Sonke through its speculation of a conflict of interest or that Advocate Williams was briefed on this matter because the outcome was a foregone conclusion. Sonke considers this a serious and important matter, with the report being an important tool for Sonke and its staff in ensuring a conducive and safe workplace. This is an unfortunate and reckless averment on the part of the City Press, and without any merit or basis. While Sonke denies that this information is of relevance to the Complaint or that there is any basis for the City Press to request it, Sonke will provide the Press Ombudsman with any further information in this regard should it be requested.”
Analysis
No sanction for nearly a decade
At the heart of the complaint, at least to a large extent, is the statement that “for nearly a decade there was no sanction and Mr X continued to manage the programme”.
At the hearing, Peacock described in detail what steps Sonke took relating to complaints against Mr X in 2009 and in 2014.
The 2009 complaint: Peacock said on 19 May 2009 management had been informed of a complaint regarding remarks Mr X had made at a workshop in Durban. On that very day, Sonke suspended Mr X, pending the outcome of an investigation.
After two unsuccessful attempts at getting a suitable person to chair the investigation, the chairperson of Sonke’s Board took on the job. On June 11 and 12 she met with the two complainants, and reported back to Sonke on June 15.
Her verdict was that Mr X was not guilty of sexual harassment, but that he did make some inappropriate sexual remarks. Sonke then reinstated Mr X, on condition that he wrote a letter of apology to the complainants, met them, and undertook not to repeat similar statements.
Therefore, Peacock concluded, it was not true that Sonke did not do anything, or tried to silence the matter – in fact, it acted immediately. All in all, it took a mere 34 working days for the matter to be resolved since the complaints were received.
The 2014 complaint: Peacock said that, in mid-November, rumours of sexual harassment by Mr X surfaced in the Johannesburg office. However, at that stage the complainants did not want to lay an official complaint, even though they were reminded of their right to complain.
On November 27, Sonke informed the HR manager about the allegations, and they flew Mr X to Cape Town at the earliest opportunity to discuss the matter with him.
On January 5, a fourth complainant lodged a formal complaint of sexual harassment against Mr X – upon which some of the other complainants joined in.
This resulted in Mr X being suspended on January 15, pending an investigation. This time, the report was damning – on February 4, he was found guilty as charged. Sonke fired him the very next day, and informed its members of staff on February 6.
Again, Peacock argued, Sonke acted swiftly and decisively.
Given these facts, the panel opines that Sonke did enforce sanctions, even though in 2009 this did not result in the firing of Mr X – his suspension, as well as the conditions set for his reinstatement were indeed “sanctions” taken by the organisation.
Therefore, we are convinced the statement that “for nearly a decade there was no sanction” and Sonke merely sat back in the face of allegations of sexual harassment in its midst was untrue and unfair.
The panel understands that the article was an opinion piece, in which the authors recorded their experiences at Sonke – and that the authors had every right to express their opinion, as did City Press to publish their views. The question, though, is not if this could have transpired, but how it should have done so.
The panel is convinced that the article did not take reasonable account of all material facts (i.e: the actions and sanctions Sonke did take in relation to this matter), as required by Section 7.2.4 of the Press Code.
Staff warned to be cautious
The panel has no record of any correspondence regarding the statement that Sonke staff were warned to be cautious of what was said as it could be regarded as defamation of character, and neither do we have any evidence to the contrary – although it was explicitly denied by Sonke at the hearing. We note that Sonke’s policies do not allow for such comments, but we also take into account that some member of its management could have uttered words to that effect.
Because the panel does not have enough evidence either way, we are not able to pronounce on this issue.
Johnson’s employ at Sonke
The article said that Johnson was in the employ of Sonke between 2013 and 2016. The panel asked both Sonke and Lubisi to send us copies of the relevant contracts. Interestingly enough, the three contracts that the editor forwarded, Sonke did as well.
The dates of those contracts are:
Sonke added another contract that started on 1 February 2013 (without indicating when this would end).
The panel finds the overlapping of times in the respective contracts quite puzzling. Be that as it may, the evidence placed before us by both Sonke and City Press suggests that Johnson was in Sonke’s employ in 2013 and 2014 – and not until 2016.
Malice
Section 7.2.2 of the Press Code requires that comment should be without malice. This brings the following questions to the fore:
Sonke alleges that Johnson made repeated denigratory and baseless allegations against it on social media. That may, or may not, be true – but the panel’s focus is on the article, and therefore, needs to apply its mind to how the reasonable reader would have interpreted the text.
We believe that such readers would not have had sufficient ground to expect malice because the:
Therefore, we do not believe that the accusation of malice (which is an extremely serious allegation) has enough legs to stand on.
It follows that Lubisi probably also did not suspect malice, which (at least partly) explains why he knew about an article on the same issue published in the Mail & Guardian, but never even bothered to read it. While the editor certainly could have done more to verify that the authors’ intent was not malicious, we do not believe that this is serious enough so as to warrant a finding that he was in breach of the Press Code in this regard.
Other matters
The panel notes the Williams report cleared Sonke of any allegation regarding the handling of sexual harassment complaints (even though the article did not refer to that report).
We also are convinced the claim that Mr X was a “senior Sonke staff member”, while he never was a member of senior management, is a matter of semantics.
Conclusion
In the end, the spirit of the article was to convey the message that Sonke did not do anything about allegations of sexual harassment in its midst – for nearly a decade. That was not true, and it did not take fair account of all material facts (as required by Section 7.2.4 of the Press Code) in that Sonke did take prompt and decisive action regarding both complaints.
If the authors of the article felt differently, it was their prerogative – but not by ignoring and indeed denying the steps that Sonke did take in handling the complaints.
No right of reply, proper verification
SONKE complains that City Press did not provide it with an opportunity to state its case before the article was published. It says it knows that a right of reply is not guaranteed where text is presented as comment. “However, it must be emphasised that, in the present circumstances, a simple opportunity to reply would have enabled Sonke to ensure that the correct facts and information were put forward,” it submits. Such a response, it argues, would have informed the public that Sonke vehemently denied the allegations.
The organisation emphasises that the spurious allegations ran fundamentally counter to its primary objectives and values, and were patently damaging to its reputation. A right of reply was therefore necessary to ensure that no undue harm to reputation was caused, it argues.
LUBISI says the text in question was not a news article, where the subject of critical reportage should get a right of reply – it was published in the opinion section of the paper and no reasonable reader of the newspaper (in print or online version) would confuse it for a news article. Hence, he concludes, City Press had no reason to contact Sonke for its side of the story.
He also denies that the text made spurious allegations against Sonke.
Analysis
The text was clearly comment and not a news report, which means that City Press was not obliged to ask Sonke for comment. This is standard practice in journalism, worldwide.
The remaining question is if the newspaper took reasonable steps to corroborate or to verify the information. At the hearing, the panel was not convinced that that was the case. While the editor focused on the “lived experiences” of the authors, we were not satisfied that he sufficiently verified the processes which Sonke took to handle both complaints.
From correspondence that Lubisi sent to the panel subsequent to the hearing, though, it seems as if he put in more effort to verify the experiences by the authors than we originally thought.
For example, he provided us with a statement by a person (whose name the panel withholds as we do not have his permission to identify him) which Johnson had presented to Sonke on 28 January 2015 on the former’s behalf. The content of this document, involving allegations against Mr X, is quite explicit, even emotional.
At the end, Johnson added some of his own related experiences.
It is noticeable that this statement was read while the investigation that led to Mr X’s dismissal was underway.
The editor also provided the panel with another (undated) document in which Johnson again voiced his concern about the emotional and psychological wellbeing of survivors.
These documents prove that:
The panel notes Peacock says that these documents do not demonstrate that City Press verified the claims in the article – in fact, he says, they do the opposite. He adds that the documents rather confirm that Sonke’s management acted proactively and decisively.
We agree with the latter half of his reasoning.
‘Talk to us’
At the end of the online edition of the article, it stated: “TALK TO US – Is the gender justice sector pervaded by sexual predators? If so, how can survivors and whistle-blowers be protected? SMS us on 35697 using the keyword SONKE and tell us what you think.”
SONKE complains that this drew an unjustified, false, misleading and inappropriate direct link between it and other organisations that were “pervaded by sexual predators”. It says the News24 platform could have selected any keyword for the SMS, but has instead chosen to create a direct correlation with Sonke in this regard. This reference, it says is a breach of Section 6.1.2 and 6.1.3 of the Press Code.
LUBISI says the text in question was relevant to the article since the story was based on experiences that the authors experienced while at Sonke. He argues that the use of the word “Sonke” to get readers’ views did not misrepresent the article in any way.
SONKE replies that the newspaper does not address the crux of its complaint in this regard, namely that this aspect of the publication drew a direct link between Sonke and organisations that were “pervaded by sexual predators”. It adds it could have used any other keyword without seeking to directly impugn Sonke in this manner.
Analysis
The panel debated the question if the use of the keyword “Sonke” falsely implied that the organisation was guilty of having hosted “sexual predators”. One member of the panel said the article was about Sonke, and that the use of that word was therefore justified. He added that this did not necessarily imply that that organisation had been pervaded by sexual predators. Another panellist remarked that there indeed was a “sexual predator” at Sonke – Mr X, who had been found guilty of sexual harassment.
Based on these arguments, the panel was not convinced that the use of the word “Sonke” constituted a breach of the Press Code.
Correction not clearly noted (online edition)
SONKE says Lubisi indicated on 15 September 2018 as follows: “We agree that the sentence – ‘Ultimately, four more people would come forward with similar accusations about Mr X before he was found guilty and dismissed’ – could be misread to mean an additional four cases. The point the article was that there were four complaints that had to come before action was taken. We have since corrected the sentence in the online article to be more exact and the sentence now reads as follows: ‘Ultimately, four people would come forward with similar accusations about Mr X before he was found guilty and dismissed’.”
It says while this correction was made online (on October 3), the newspaper failed to clarify that it has been duly corrected and submits that the published correction therefore infringed Section 1.11 of the Press Code.
LUBISI says that the article had since been corrected.
SONKE replies that, as at 9 November 2018, this had not yet been done.
Analysis
Regarding the online version, it is noticeable that the newspaper did not admit it made a mistake and then reported the correct information – it merely corrected it, without any comment. It would have been better to draw the public’s attention to the fact that the initial figure was wrong.
The panel also took note of Lubisi’s argument that he gave Sonke a right of reply after the publication of the article, which is when he would have corrected this particular mistake in print – an offer that the latter however rejected. When he was notified of Sonke’s complaint with this office, he decided that the matter was sub judice – which was why he has not yet published the correction in print.
That decision was reasonable, but it also implies that the panel has to take action in this regard.
Text not clearly presented as comment (online edition)
SONKE complains that, while the article was published in the opinion section of the print edition of City Press, the online edition did not make it clear that the article purported to be an opinion piece.
LUBISI says the text can only be found under the voices section on the online platform. “Further, the attribute at the bottom of the article show who the authors are and their titles. This is only used on opinion articles and not on news articles,” he adds. He also points out that the one inaccuracy in the article was promptly corrected.
SONKE replies that the indication of an opinion piece was insufficient to meet the standard required by the Press Code as it was not “clearly” marked as such. It says such an indication should be at the top of the article, and be clear and unambiguous.
Analysis
This part of the complaint does not have a leg to stand on – the article was published in the voices section, fulfilling the requirement of Section 7.2.5 of the Press Code which says comment should be presented “in such manner that it appears clearly to be comment”.
Reputation tarnished
SONKE says the article contained false and defamatory statements, presented as facts, that hurt its name and reputation. It says the reportage created the impression that Sonke was not true to the values that it espoused, and did not treat allegations of sexual harassment with the appropriate concern that they deserved.
This, the organisation says, was inimical to the values of the organisation.
It submits: “The appropriate manner of dealing with allegations of sexual harassment … is a matter currently being debated amongst various organisations and members of the public. Sonke is a key voice in this discourse given our work and expertise. Spurious allegations such as those made in the article … run the risk of diminishing the role that Sonke can play in this discourse and continuing the important work in which we are engaged. It further may raise doubts in the minds of persons who may want to seek our assistance, potential funders, and members of the broader public who may be inclined to discredit the views put forward by Sonke as being hypocritical. This is a serious concern and risk to the organisation, and one that can seriously hamper our work. Sonke submits that it is wholly inappropriate for such falsehoods to persist in the public domain when they are clearly without basis.”
Analysis
The panel has already found that the article falsely (and unfairly) suggested that Sonke looked the other way and did not adequately deal with allegations of sexual harassment. Given the nature of the organisation’s work, it follows that we also believe that the reportage has unnecessarily tarnished its dignity and reputation. One can hardly think of any matter that could potentially harm Sonke’s reputation as much as the allegations at hand.
Section 3.3 of the Press Code makes provision for instances when matters involving dignity and reputation may be overridden.
This section reads in full: “The media shall exercise care and consideration in matters involving dignity and reputation. The dignity or reputation of an individual should be overridden only if it is in the public interest and in the following circumstances:
None of these provisions applied in this case.
Finding
Article based on false information
The statement that that “for nearly a decade there was no sanction and Mr X continued to manage the programme” was untrue and did not take fair account of the fact that Sonke indeed took immediate action regarding both the complaints (in 2009 and in 2014), and that it also enforced some sanction. This was in breach of Section 7.2.4 of the Press Code that reads: “[Comment or criticism is protected even if extreme, unjust, unbalanced, exaggerated and prejudiced, as long as it] has taken fair account of all material facts that are substantially true.”
The statement in the original online version of the article, as well as in the print edition, that there were eight complainants (and not four) was inaccurate, and in breach of Section 1.1 of the Code that says: “The media shall take care to report news … accurately…”
The panel makes no finding on the complaint that the article said that Sonke staff were warned to be cautious of what was said as it could be regarded as defamation of character”.
The article incorrectly indicated that Johnson was in Sonke’s employ from 2013 to 2016. This was in breach of Section 1.1 of the Press Code, as quoted above.
The following complaints are dismissed:
No right of reply, proper verification
The complaint that City Press did not ask Sonke for comment prior to publication is dismissed.
The editor adequately verified the “lived experiences” of some former Sonke members of staff, which is why this part of the complaint is dismissed.
‘Talk to us’
This part of the complaint is dismissed.
Correction not clearly noted (online edition)
This part of the complaint is dismissed.
Text not clearly presented as comment (online edition)
This part of the complaint is dismissed.
Reputation tarnished
The article conveyed the false impression that Sonke has done nothing, for “nearly a decade” about allegations of sexual harassment in its midst. This was in breach of Section 3.3 of the Press Code that says: “The media shall exercise care and consideration in matters involving dignity and reputation…”
Seriousness of breaches
Under the headline Hierarchy of sanctions, Section 8 of the Complaints Procedures distinguishes between minor breaches (Tier 1 – minor errors which do not change the thrust of the story), serious breaches (Tier 2), and serious misconduct (Tier 3).
The breaches of the Press Code as indicated above are all Tier 2 offences.
Sanction
City Press is directed to apologise to Sonke for the:
The newspaper is also reprimanded for:
The newspaper is directed to:
The texts should:
Addressing on sanction
Section 5.5 of the Complaints Procedures reads, “At the conclusion of a hearing, and after a Panel has reached a decision, both parties shall be entitled to address the Panel, personally or in writing, on sanctions and where appropriate mitigation.”
This section should not be confused with an appeal – it merely gives each party an opportunity to address the panel on the sanction itself. The opportunity to appeal, either the finding or the sanction, remains open for the next seven workings days, as outlined below.
Appeal
The Complaints Procedures lay down that within seven working 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.
Peter Mann (public representative)
Joe Thloloe (media representative)
Johan Retief (Press Ombud)