Ruling by the Deputy Press Ombud
September 29, 2016
This ruling is based on the written submissions of Belinda Walter and Daily Maverick editor Branko Brkic.
Walter is complaining about the contents of an article printed on the Daily Maverick website written by Marianne Thamm on August 16, 2016, entitled SARS wars massive data leak alleges British American Tobacco SAS role in bribery (http://www.dailymaverick.co.za/article/2016-08-16-sars-wars-massive-data-leak-alleges-british-american-tobacco-sas-role-in-bribery-and-corruption/#.V7Kn2EJMb8k)
Complaint
Ms Walter
- denies that there is an affidavit with the information cited by the Daily Maverick and says the information in the story is “blatant lying and relying on fabricated evidence”
- says the writer has not disclosed her “personal and improper” relationship with Johann van Loggerenberg when writing these articles on his behalf
- says she was not given an opportunity to respond to the allegations .
Text:
The story reports on documents leaked via a twitter account which points to wide-scale industrial espionage, fraud, racketeering, corruption and bribery by agents representing and working on behalf of British American Tobacco SA (BATSA).
Among these documents, according to the story, are those which mention the complainant. The story reads:
”In an affidavit deposed by Walter in February 2014 in the North Gauteng High court and in a matter involving Carnilinx, the attorney said she had been introduced to BAT through her handlers at South Africa’s State Security Agency. She had agreed to spy for the tobacco multinational while acting as an agent for the SSA. Over and above this, Walter acted as legal adviser to BAT’s competition Carnilinx and also was the chairwoman of the Fair-Trade Independent Tobacco Association (FITA).”
"According to an affidavit seen by Daily Maverick, Walters earned £3,000 a month totalling £30,500 (just over half a million rand) in payments from BAT. In a confidential letter to Walter dated March 2014, BAT admits to paying her in cash or loading money on to two Travelex cards registered to a BAT employee in the UK. Walter was able to draw cash from ATMs in South Africa.”
The Arguments
Walter denies that any such affidavit exists before the High Court of South Africa and demands that Daily Maverick produce this affidavit and the High Court case number. She says the affidavit deposed by her was "after assurances of complete secrecy and in terms of intelligence legislation". She also disputes that she deposed an affidavit on the amounts of monies mentioned in the story.
Walter says the writer is "is blatantly lying and relying on fabricated evidence from Johann van Loggerenberg" and adds "Marianne Thamm has not disclosed her personal and improper relationship with Johann van Loggerenberg when writing these articles on his behalf”.
In response, Daily Maverick notes that when the newspaper became aware that the affidavit in question was not deposed in the Gauteng High Court by Walter, it made changes to the story to that effect.
The Daily Maverick says the allegations in the story stand but they were incorrectly attributed to an affidavit by Walter. It was in fact Carnilinx director Kyle Phillips who, in his affidavit, referred to a meeting Carnilinx had with Walter on 1 February 2014, where she made these confessions to them.
Daily Maverick says Phillips recounted this in an application to the Gauteng North (Johannesburg) division where Carnilinx sought to interdict Walter and BAT in August 2014 and referred to her February 2014 confession.
Daily Maverick says the reporter Thamm had never met Van Loggerenberg. The Daily Maverick notes that there was no evidence to back up the claim that Thamm was writing stories "for" Van Loggerenberg and that these allegations border on being libellous.
Daily Maverick says Van Loggerenberg had not been an instigator or source for any stories on Walter and had "consistently declined to make any public comment regarding Ms Walter when requested to do so, with exception of a request to the editor to put certain facts straight". Van Loggerenberg wasn't asked to comment (on Walter) in the article in question.
Walter countered that the journalist did not attempt to contact her for her side of the story. She insisted that the information could only have been obtained from the secret affidavit which would be in contravention of the Press Code. If the information was obtained from the Kyle Phillips affidavit, then Daily Maverick should have reported on the opposing affidavits filed in August, she added.
As evidence that Daily Maverick was used by Van Loggerenberg, Walter cites incidences or anecdotes where she has been told that people were being encouraged to make "my life difficult".
She says that an online amendment is not sufficient and correctly notes that the Press Code says that articles must reflect previously contained errors which were corrected. She adds that it was unacceptable that the journalist offered no apology for the false reporting.
Walter claims that the journalist is in breach of Sections 1.1, 1.2, 1.3, 1.4, 1.7 and 1.8.
Analysis
The story is based on a data leak via a Twitter account. It places an onus on the writer to ensure that the documents are authentic and that the content can be substantiated. Failure to do so would be in breach of Section 1.1 of the Press Code which says "The media shall take care to report news truthfully, accurately and fairly."
The article itself covers a broad range of events of which Walter's disputed content is only one element. Within this broad range of issues, the writer has tried to provide context that assists the reader in understanding the full story.
Section 1.3 says that 1.3. "Only what may reasonably be true, having regard to the sources of the news, may be presented as fact, and such facts shall be published fairly with reasonable regard to context and importance. Where a report is not based on facts or is founded on opinion, allegation, rumour or supposition, it shall be presented in such manner as to indicate this clearly."
The Daily Maverick has acknowledged that the affidavit has been incorrectly attributed to Walter. The Press Code is clear, any corrections to online content must reflect that a correction has been made as per section 1.11 which states: "An online article that has been amended for factual accuracy should indicate as such. In the event of an apology or retraction, the original article may remain, but the publisher must indicate in a prominent manner that it has led to an apology or retraction - and should link to both the apology/retraction and the original article."
Walter's complaint that the writer has not disclosed her "personal and improper" relationship with Johann van Loggerenberg when writing these articles on his behalf is serious and in the absence of comprehensive proof needs to be retracted. Constant reporting on a specific source cannot point to a relationship beyond a professional journalistic one.
Walter's third complaint that she was not asked for comment hinges on whether or not she is the subject of critical reportage who should, in terms of Section 1.8, be asked for her comment. The allegations in the affidavits are serious enough to warrant a response unless there were specific reasons why Walter could not be approached.
The view that Walter's complaint led to the decimation of the unit along with the allegations of her earnings all warrant a response from Walter. As she notes in her complaint, she disputes the figures given in the affidavit. The fact that much of the content has been in the public domain does not remove the onus on the media to getting a response from the subject of critical reportage which we deem Walter to be.
Findings:
Affidavit
The initial story has published by the Daily Maverick was, by its own admission, inaccurate in that it reported that the affidavit being quoted was one deposed by Walter. In correcting this inaccuracy, the Daily Maverick needs to clearly state what has been changed and why this has been changed.This complaint is upheld.
Improper relationship
There is no evidence of any relationship beyond a professional one. This complaint is dismissed.
Right of reply
The story positions Walter in a critical role and reports on issues that require her comment. This complaint is upheld.
Seriousness of breaches
Under the headline Hierarchy of sanctions, Section 8 of the Complaints Procedures distinguishes between minor breaches (Tier 1), serious breaches (Tier 2) and serious misconduct (Tier 3).
The breaches of the Code of Ethics and Conduct as indicated above are a Tier 2 offence.
Sanction
The Daily Maverick needs to publish a correction under the online story that indicates which elements of the story were wrong and required correction.
In addition, Belinda Walter should be invited to a Right of Reply with a published Letter to the Editor of about 800 words or as agreed by the editor.
In drafting an apology, the following should be noted:
The text should:
• start with the sanction (apology);
• refer to the complaint that was lodged with this office;
• end with the sentence, “Visit www.presscouncil.org.za for the full finding”; and
• be approved by the Deputy Ombud.
The headline should reflect the content of the text. A heading such as Matter of Fact, or something similar, is not acceptable.
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 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.
Paula Fray
Deputy Press Ombud