Decision to adjudicate
Complaint 8980
Date of article: 18/06/2021 (online)
Complainant: Ms. Leigh-Ann Mathys
Respondent: EWN
Headline: “Woman who claimed to birth 10 babies shows no signs of pregnancy – sources”
Author: Mahlatse Mahlase
Particulars
Complaint
4. As the headline implies, the article centred around the alleged birth of decuplets. It is by now public knowledge that Ms. Gosiame Sithole allegedly gave birth to 10 babies and thereby claimed to have set a new world record.
5. The EWN report quotes unnamed sources as saying there was no pregnancy. In particular, the sources claimed that Ms. Sithole has been medically examined and that no evidence of a pregnancy or a recent caesarean section was found.
6. Ms. Leigh-Ann Mathys (“Mathys”) complained that “Ms. Sithole’s constitutional rights to privacy and dignity were grossly violated by EWN”, that Ms. Sithole “did not give consent for her medical examination to be published”, and that the article was subsequently “intentional unethical and downright unfair reporting”.
7. The complaint is therefore based on Clause 3 of the Press Code dealing with privacy, dignity and reputation.
Public Advocate’s view
8. According to the Public Advocate, the complainant does not have standing to lodge a complaint.
9. He states Clause 1.1. of the Complaints Procedure, containing the definition of a ‘complainant’ does not contain a general ‘public interest’ clause and the procedure does not allow third parties to lodge a complaint where the “true complainant” has not lodged a complaint herself.
Complainant’s views
10. Mathys states: “I lodged this complaint in the interest of a group of women fighting against obstetric violence that is a horrific reality for majority of South African women.”
11. She argues the Press Code does not override the South African Constitution. The nub of the complaint is the perceived violation of Ms. Sithole’s constitutional rights.
12. Complaints cannot be “immediately shut down”, she says. “It is an utter disgrace that complaints relating to constitutional violations of women, black women in particular, is responded to with instant dismissal.”
13. The National Health Act 61 of 2003 prohibits the disclosure of information concerning a person receiving treatment in a health establishment without permission, a court order authorising same or where there is a serious threat to public health.
14. The Department of Health, Gauteng issued a statement about Ms. Sithole on 18 June 2021, but EWN went further than the statement by including sensitive information. EWN allegedly obtained the medical information of Ms. Sithole illegally.
15. Mathys cited several court judgments about the constitutional rights to privacy. She contends that the EWN article failed to apply the proportionality test employed by the courts when a limitation of constitutional rights is considered.
Analysis
16. Clause 1.1. of the Complaints Procedure is the subject of this dispute. It provides the following definition:
“Complainant” shall mean and include any person who or body of persons which
lodges a complaint and has standing to complain in terms of the following rule:
anyone acting in their own interest;
anyone acting on behalf of another person who cannot act in his or her own name;
anyone acting as a member of, or in the interest of, a group or class of persons; and
an association acting in the interest of its members.”
17. A complainant therefore needs to show “standing” for a complaint to be valid.
18. In the recent matter of SA BDS Coalition v SA Jewish Report (Complaint 8920) the current Ombud noted that Clause 1.1. is virtually identical to section 38 of the Constitution, except that the former does not explicitly afford a complainant standing when acting ‘in the public interest’ while those words are included in the Constitution.
19. While it was not necessary for the Ombud in that matter to consider the ‘public interest’ conundrum, I agree with her sentiment in the ruling that the Press Council’s procedures should not be applied in an overly technical or strict way. To do so would serve as an unjustified tool of exclusion of seemingly valid complaints.
20. In this case, however, the absence of the words ‘public interest’ in Clause 1.1. is at the centre of the dispute. The Public Advocate stated that the procedure “does not allow for third parties to lodge a complaint ‘in the public interest’ where the true complainant (in this case Ms Sithole) has not lodged a complaint herself’.
21. This formulation needs some qualification.
22. For reasons that are set out below, I agree that the Complaints Procedure does not allow a third party to demand a personal right on behalf of another or assert allegations as part of a complaint that cannot be within the third party’s personal knowledge.
23. However, in my view, stressing the absence of the phrase ‘public interest’ in Clause 1.1. blur the lines unnecessarily. Plainly put: There is currently no provision in the Complaints Procedure that allows ‘public interest’ complaints, but there is also no provision prohibiting complaints from someone who is not directly implicated in an article.
24. The Clause cannot be interpreted based on the words it does not contain, but rather on the words that are used. It should further be interpreted purposefully and within the context of the entire Code. The preamble to the Press Code states: “The media exist to serve society.” The entire scheme of the Press Council is to hold the media accountable to the public.
25. Clause 1.1. allows anyone to complain “in the interest of, a group or class of persons” or “in their own interest”. It further allows third parties to act on behalf of implicated individuals under certain circumstances.
26. The Press Council has, as a matter of fact, been accepting complaints from third parties for many years, even in cases where there was a potential ‘true complainant’, being an implicated individual. A few examples include:
Where to draw the line?
27. The commonality between the cases cited above, is that none of the complainants claimed personal rights on behalf of another. The complaints were all about ‘general’ clauses in the Press Code such as unnecessary offence to readers or a breach of the Press Code clause that prohibits the identification of minor accused. Although the Mtimde complaint was framed by the complainant as a reputation or dignity issue affecting the ANC and the late Mr. Tambo, the actual complaint was decided based on Clause 10.1., being headlines that mislead the public.
28. Therein lies the crux when the issue of standing is considered. It is not that complainants are restricted to those who are personally involved or implicated in a report, but that complaints have to be restricted when the complainant is trying to assert personal rights of another or where the complainant lacks personal knowledge of the facts that form the subject of the complaint.
29. This was illustrated in the matter of Jane Barnard v Mail&Guardian (8 May 2020) when the then Ombud declined to adjudicate a complaint for lack of standing after applying Clause 1.1. The complaint was from a farmer in the Western Cape who felt aggrieved by reporting about the allegedly unacceptable living conditions of farm workers without seeking the views of the implicated (but unnamed) farmer.
30. The Ombud held in Barnard that the complainant was not implicated in the article, was not acting on behalf of the implicated farmer, and could not be said to have acted “as a member of, or in the interest of a group or class of persons”.
31. I do not read the ruling in Barnard to mean that third parties, i.e. those who are not directly implicated, could never have standing in terms of Clause 1.1. to complain. The crucial aspect in Barnard was that the complainant was claiming a right of reply on behalf of another farmer and complained about alleged factual inaccuracies which could only have been within the knowledge of the implicated farmer.
32. For many Press Code clauses, there will rarely be a single ‘true complainant’. Examples include instances of plagiarism (Clause 1.13), conflating editorial and advertorial content (Clause 2), or complaints about hate speech and discrimination (Clause 5).
33. There will also rarely be a single, clearly defined “group or class of people” in whose interest someone may act or a single organisation representing certain interests of their members.
34. Who should be allowed to complain on behalf of Christians? May only a woman complain about the offence caused by the word ‘tits’? Would one have to prove one’s sexual orientation before complaining about hate speech or discrimination against gay people? These types of absurdities crop up through a mechanical interpretation of Clause 1.1. and a blanket ban on third party complaints.
35. In my view, someone could be complaining “in their own interest” or “in the interest of a group or class of persons” – as provided for in Clause 1.1. – if the complaint is about those ‘general’ clauses mentioned above. This is so even if they are not directly implicated.
36. On the other hand, Clause 1.1. does not envisage an opening of the floodgates where anybody can complain and allege that it is done ‘in the public interest’. This would burden the Press Council with adjudicating complaints based on hearsay, assumptions, speculation or where the implicated persons themselves might have chosen not to complain.
37. In summary, I am of the view that a third party may complain in his or her own interest or in the interest of society – as provided for in Clause 1.1. – as long as the third party is not claiming a personal right of an implicated party and as long as the ‘facts’ asserted is within the complainant’s personal knowledge.
38. This is in line with the long list of decisions by the Press Council where third-party complainants were involved.
39. This approach is also not unique to the Press Council. Given the fact that the host radio stations of the respondent also subscribe to the Broadcasting Complaints Commission (BCCSA) for broadcast bulletins, it is of interest to note that the BCCSA Tribunal follows the same approach.
40. The BCCSA’s complaint criteria simply reads:
“Complainant – shall include any individual or any association, body, corporation, institution, political party, organisation or movement, society, union, or any office-bearer duly nominated in writing to represent such association, body corporation, institution, political party, organisation or movement, society or union for the purposes of pursuing the complaint.”
41. There is also no empowering or prohibitive provision for ‘public interest’ complaints or explicit requirement to show standing, but the BCCSA Tribunal has consistently distinguished between complaints about personal rights and complaints about other transgressions of their code.
42. In Lorgat vs SABC – SAFM [2013] JOL 30614 (BCCSA) the Tribunal held that a complainant only has locus standi in a complaint relating to a right of reply if he is claiming it on his own behalf and not a third party.
43. In Buthelezi vs Talk Radio 702 [2012] JOL 29259 (BCCA) the Tribunal refused to entertain a complaint of alleged dignity infringements of Zulu King Goodwill Zwelithini as the latter did not complain himself.
44. Finally, in Le Roux vs Heart 104.9FM [2011] JOL 27727 (BCCSA), the Tribunal selectively entertained a complaint about vulgar and abusive language used during a broadcast. In that case, the presenter used words such as ‘bitch’ and ‘whore’ with reference to his ex-girlfriend. The Tribunal adjudicated the complaint about the vulgar language that denigrated women (which is regulated by their code) but held that the complaint about the dignity of the ex-girlfriend can only be adjudicated if the ex-girlfriend herself complained.
Does Mathys have standing?
45. I have already stated that Mathys’ complaints fall squarely within Clause 3 of the Press Code.
46. Mathys seeks to exercise the right to dignity and privacy of Ms. Sithole. These are personal rights and inextricably linked to what a particular individual’s legitimate expectation of privacy is.
47. The other identified complaints are an alleged infringement on Ms. Sithole’s constitutional rights and Ms. Sithole’s rights in terms of the National Health Act.
48. Those rights can only be exercised by Ms. Sithole or someone duly mandated by Ms. Sithole.
49. Finally, I must make the following observations: Mathys argues that the Press Council should adjudicate the matter as EWN acted ‘illegally’ and in contravention of the National Health Act. She further argues that EWN failed to perform a proportionality evaluation for the limitation of constitutional rights.
50. The Press Council is not a court of law. The Ombud cannot make a ruling on whether any party is guilty of criminal, unlawful, or unconstitutional conduct. This is the domain of the courts. The Press Council will only enforce the Press Code and pronounce on matters of ethics.
Conclusion
51. For the reasons cited above, I decline to adjudicate the complaint of alleged contraventions of the privacy and dignity Clause (Clause 3) due to a lack of standing of the complainant.
52. I reiterate that the merits of the complaint have not been considered.
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.
Herman Scholtz
Deputy Press Ombud
5 July 2021