Pieter Kloppers vs. Rapport

Wed, Mar 23, 2016

Ruling by the Press Ombud

23 March 2016   

This ruling is based on the written submissions of the Dean of Students at Stellenbosch University (SU), Pieter Kloppers, and those of Marga Ley, on behalf of Rapport newspaper.

Even though the story was written in Afrikaans, the complaint was lodged in English – hence the language of this finding.

Complaint

Kloppers is complaining about a front-page story in Rapport of 14 February 2014, headlined Maties ‘vir die wolwe gegooi’ – Pers meisies sê universiteit wou nie hul kant van die storie hoor nie.

Complaining in his personal capacity, Kloppers says that the journalist:

- reported inaccurate and / or unfair (or misleading) information as the story:

o stated that Mr Mathew Smorenburg (who administers the Listen, Live and Learn residential program at SU) forced the students (by SMS) to place an “apology” that he had formulated – but then the reporter ignored the content of this message, resulting in the wrongful painting of a picture of malpractice at the university;

o used inverted commas around certain words, implying wrongdoing and mistrust with regards to the actions of SU staff;

o did not take the nature of social media into account “where different rules of engagement are present and subscribe comments by Smorenburg on the realm of social media as if it applies to the everyday reality”; and

o omitted to state that the suspension of the students was pending the completion of an investigation;

- did not verify whether Smorenburg had indeed said that the students could not have legal representation – and knowing the constraints on staff of SU to directly answer questions from the media he had a duty to check the available evidence and to seek the views of the subjects of critical reporting (which he did not do); and

- caused some serious personal and professional harm, which was compounded by the fact that the story was published on the front page.

The text

The story, written by Pieter Malan, was about events transpiring shortly after a public outcry over an incident on the campus of SU, involving two female students who painted their faces purple for a party titled “Stellar Space” – and who were said to have “blackfaced” themselves.

The story said that SU had eventually lifted the “temporary” suspension of the students after an “investigation” that lasted seven days. Kloppers had reportedly informed the students of their temporary suspension.

The text is mostly negative towards the university, stating that some of its officials initially refused to listen to the students, despite the fact that they knew the students had been painted purple (not black).

The journalist reported that, according to the students, Smorenburg was intimidating, intense, somewhat insulting and irritated – and not interested in their arguments at all. The students reportedly also alleged he told them that they were not allowed to obtain legal representation before he gave them permission to do so, that he did not care what their intentions were, and that he was not interested in looking at a picture showing that their faces had indeed been painted purple.

The arguments

Inaccurate, unfair information

Forcing students to place a certain apology; ignoring its content

The story said that Smorenburg SMSed an “apology” to the students with the instruction to put it on their Facebook profiles (which they did). The students reportedly thanked those who tried to support them, and asked them not to try and pardon the unpardonable.

Kloppers complains that Malan ignored the content of Smorenburg’s text, resulting in the painting of a picture of malpractice at SU (this is the heart of his complaint).

He says (and elaborated on this subsequent to his complaint) that Smorenburg, in this document:

- acknowledged that the women painted themselves purple;

- did not accuse the students of blackfacing – he merely reacted to a conversation on social media where the incident was labelled as such;

- advised them of a relevant conversation on Twitter; and

- stated that he fully accounted for the students’ side of the story – acknowledging “the purple paint, the theme of the party, the appearance of the photo different to the actual facts, and that there was no intention of blackfacing”.

He adds that members of SU staff knew from the outset that the women had painted themselves purple and had no intention of blackfacing.

Kloppers argues, “By not reading the content of the declaration or giving no indication of what it said – although it is referred to in the article – the reporter paints a picture of malpractice at the university…” He concludes that, if Malan had read Smorenburg’s statement, he would have come to a different conclusion.

Ley denies that the story was inaccurate or unfair – she says it was based on interviews with the students and on a reconstruction of the events leading to their suspension. She argues the story stated clearly that it reported the students’ views, and the newspaper had no reason to doubt that their version was reasonably true. Public interest in this matter is beyond dispute.

She also says that Kloppers merely states that some facts were inaccurate, but in most instances he does not present any evidence to prove his case.

She adds the most important example mentioned by Kloppers is the statement that Smorenburg “forced” the students to apologise in a certain manner. “However, there is a difference of opinion on this matter. The women did not agree – as stated in the article.”

Ley points me to an interview with one of the students, published in Die Burger and stating, “Regarding the so-called apology that the two students published on Facebook, she (one of the students) smiles. Mathew (Smorenburg) typed it, she said, even though she objected to it.”

Kloppers responds as follows, saying:

- he agrees that the newspaper’s interviews with the students formed the basis of its story;

- he notes that Rapport refers in its response to the complaint to “girls” and not to “women” (this is not reflected in my summary, but the Afrikaans word “meisies” does appear several times in the newspaper’s reply). He argues that this merely adds to his indignation or resentment of the article;

- he rejects the newspaper’s argument that its story was also based on a reconstruction of events. He says that, if Rapport had read Smorenburg’s “apology” (he remarks that the newspaper has not indicated that Malan had read that text), it would not have produced such a negative report, and submits that it was not an apology at all, but rather a statement (“verklaring”);

- because Malan had not read the statement, Rapport cannot claim that it had credibly “reconstructed” the events – see also his argument below;

- the story was “shaped” in such a way as to project a negative light on the way SU staff had handled the matter;

- Malan did not distinguish between a temporary suspension pending an investigation (which is not a disciplinary step), and a suspension following a disciplinary process – see also his argument about the use of inverted commas around the word “temporary” (suspension) below; and

- the story did not only mention that the women were not satisfied with the “apology” – Rapport in fact indicated that it also felt that way.

My considerations

Smorenburg’s SMS reads as follows (unedited): “We are aware that our actions in the #blackfacing incident last night at the Heemstede stellar space party where painting our bodies dark purple and cover with glitter appeared as black and thus as attempt to demean and exotify blackness. We apologise for any offense occurred and take full responsibility for this. We are working with the University and other role players in this regard. We thank those who are trying to support us knowing we had no bad intentions but request that you do not try to defend the indefensible practice of #blackfacing.”

Before discussing in detail what this text says and what it does not say (in order to establish whether it should or could have materially changed the story, had Malan taken it into account), I need to state that it is rather strange that Rapport did not respond to Klopper’s complaint on this issue – this is the heart of his complaint...

It is also important to note what the story said in this regard (and what it did not say). It stated, “Smorenburg also typed out an ‘apology’ on his cell phone which he SMSed to them with the instruction to put it on their Facebook profiles. In the apology they thank those who ‘try to support us’ and request that (our friends) do not try to pardon that which is inexcusable.”

Based on this, I accept that Malan had the full text of the SMS at his disposal. I have also established that the text the students posted on their Facebook pages were exactly the same as that of Smorenburg.

So therefore, the questions now are whether the:

- reporter quoted the SMS correctly; and

- omission of the rest of the text would or should have made any difference to his story.

As far as the content of the SMS goes, Malan only stated that the students thanked those who tried to support them and requested their friends not to try and pardon the inexcusable.

This quote does not conform to the journalistic standards set by the Code of Ethics and Conduct, as:

- the omission of the words “knowing we had no bad intentions” (after having thanked their friends who tried to support them) left the reader with no indication as to the students’ intentions – and, in fact, it may easily have been interpreted that the students admitted they were guilty (read: that they in fact had tried to blackface themselves); and

- even worse, the second part of the SMS stated the students requested that their friends should not try to defend the indefensible practice of #blackfacing. Malan omitted these last three words. Again, the context of what was really said was lacking.

When read in conjunction with the fact that the quote did not cover the intentions of the students (or lack thereof), the second omission most probably would have exacerbated the impression that the “inexcusable” (or “indefensible”) referred to their behaviour – while, in fact, it pointed to the practice of blackfacing (which they were accused of on social media, but which they did not intend to do).

Given the fact that Smorenburg formulated this text, I need to conclude he accepted that the students did not intend to blackface themselves, and that the caution not to justify referred to blackfacing and not to their actions. Clearly Smorenburg’s intention was to rectify any false perceptions in this regard. Unfortunately, this attempt was not reflected in the story.

The second issue is whether the omission of the rest of the SMS would or should have made any difference to Malan’s story.

The following are the most important of SU’s observations in this regard, with which I concur:

- The use of the “#” in the term “#blackfacing” refers to an incident featuring on social media – but without the intention of stating as fact that the students had blackfaced themselves;

- The words “attempt to demean and exotify blackness” with reference to blackfacing demonstrates an understanding of why some people may have been offended by it;

- The apology acknowledges that people were hurt and angry, and shows willingness to be held accountable by SU’s structures (even if their intention was above reproach); and

- The students called for calm, thereby reducing the likelihood of friends or family making aggravating comments in an attempt to show them some support.

In addition, I note that the SMS acknowledged that the paint “appeared” black – which clearly it was not, by Smorenburg’s own words.

Based on all of the above, I believe that the apology (“for any offense occurred”) was for a misunderstanding which came about because of the wrong interpretation of the students’ actions and intentions, and for the harm that was caused by that, rather than for their behaviour and intention.

And again, I must note that this conclusion is based not on the students’ words, but on those of Smorenburg. It was his intention to convey this message – but the selective use of his text by Malan has led the public to a different understanding.

This is what happened:

- Malan quoted selectively from the sentence on which he chose to focus, leaving the false and unfair impression that the students admitted they were guilty, and that they requested people to stop defending them (while they were appealing to people not to defend the practice of blackfacing); and

- The omission of important parts of the rest of the SMS aggravated this situation – the matter would have been put in a different light if Malan had reported that he (Smorenburg):

o did not state that the students blackfaced themselves – rather, that he accepted they did not intend to do so; and

o had tried to rectify the situation, inter alia by explaining that blackfacing may be offensive to many people.

My conclusion is inevitable – by selectively quoting from a sentence, and by omitting material information from the rest of the text, the reporting on this matter was unfair, out of context and one-sided. It unnecessarily put Smorenburg in a bad light – and with that, of course also SU.

Inverted commas

Kloppers complains that Malan used inverted commas around certain words to attribute wrongdoing and mistrust regarding the actions of SU staff.

He does not specify the words to which he is referring.

Ley does not respond to this part of the complaint.

In a follow-up correspondence, Kloppers argues that the strategic use of inverted commas served to put the matter in a negative light or to put doubt in the readers’ minds, which amounted to inaccurate and unfair reporting. As an example he cites the use of the word “temporary” (“tydelike”) with reference to the students’ suspension.

My considerations

Inverted commas are mainly used to:

- directly attribute words or a statement to a source;

- draw attention to some special issue; or

- put some doubt in the readers’ minds.

Firstly, I asked Kloppers, “You refer to the use of inverted commas around certain words, but omitted to state exactly which words you were referring to. May I assume that you have the following words in mind: “ondersoek” (“investigation”…), “tydelike” (“temporary”…), and “verskoning” (“apology”)…?

He responded in the affirmative.

The first two words appeared in the second sentence of the article that said, “SU eventually … after an ‘investigation’ of seven days … officially lifted the ‘temporary’ suspension…”

I have little doubt that the inverted commas in this sentence were used to put doubt in the readers’ minds – the issue was not “special”, as the investigation had been going on for a week and the public had been informed about it, and neither were those words attributed to a source.

When read in context, the same goes for the word “temporary”.

My question is not whether inverted commas were used to put doubt in the public’s mind (because it did do exactly that), but rather whether this intention was justified. Was it reasonable for Rapport to question the validity of those two concepts?

Given my argument about Smorenburg’s SMS above, as well as the context and meanings of the words in question, I have little hesitation to decide that Malan was not justified to put doubt in the readers’ minds with regards to the concepts in dispute. Not only was that unnecessary, but it was also unfair.

Social media

Kloppers complains that Malan did not take the nature of social media into account “where different rules of engagement are present and subscribe comments by Smorenburg on the realm of social media as if it applies to the everyday reality”.

He argues that Malan was fully aware that in social media:

- it does not matter what your intentions are – once a conversation is labeled #blackface then it is beyond anybody’s control (including SU) to change; and “to insert your intention into a social media conversation can only aggravate hostility towards you”; and

- it would make no difference to the #blackface conversation to show photos of yourself as purple as the first pictures were already there and the next ones “is ignored”.

Kloppers adds that the theme of aliens was already being interpreted in the #blackface online conversation as showing that other race groups do not belong.

He concludes, “By not making it clear…that these comments were made with reference to the context of social media the reporter strengthens his case that the staff acted irresponsibly or without regard for the students.”

Ley replies that Klopper’s argument says much about his warped sense of justice – which is not annulled on social media. She says the newspaper could find no case where a judge in a South African court found someone guilty on the basis that someone on Twitter “thought” that someone else was guilty and therefore concluded that it “made no difference” what really happened. “It is an absurd idea that Smorenburg’s alleged comments to the students should be interpreted differently just because it was done ‘in the context of social media’.”

Kloppers replies that there is a difference between standing trial in a “court of public opinion” and a court of law. He says Rapport’s argument about a court case in this regard is disingenuous – he submits that that is not what he said in his complaint.

He adds the newspaper knows full well that social media form their own court of public opinion. “When Smorenburg notes that the strict procedures of a court of law do not apply where public opinion is formed, it is not a warped sense of justice at all and even less absurd” – as Rapport itself demonstrated with the story in dispute. He concludes, “Rapport’s denial that a ‘court of public opinion’ exists and that it applies different rules as courts of law do, is absurd.”

My considerations

I am convinced that the two parties are not on the same page on this issue, and I am not going to try to unravel this confusion, or to enter into any such debate. I need to keep my eye on the ball, which directs my attention to the letter and the spirit of the story – which I am not going to find in this matter.

Omitting a central fact

Kloppers submits that Malan knew that the students were suspended pending the completion of an investigation, and complains that the reporter left out those words – implying that SU took a disciplinary step, and thereby casting further doubt on the actions of the staff.

Ley denies this part of the complaint. She says that the story already stated in the second paragraph that the suspension was rescinded subsequent to an investigation. She says this was re-stated later in the article.

My considerations

Ley’s argument is correct. I therefore do not believe the story implied that SU disciplined the students.

No verification

Kloppers complains that Malan did not verify whether Smorenburg indeed said that the students could not have legal representation – and knowing the constraints on staff of SU to directly answer questions from the media he had a duty to check the available evidence and to seek the views of the subjects of critical reporting (which he did not do).

Ley says Malan asked Smorenburg for comment on February 12. This communication read, “I am writing an article for Rapport heavily critical of your handling of purple matter. Please phone Pieter…” (I have deleted his cell number.)

He responded the same day as follows: “I am aware. Any request for comment regarding business of@StellenboschUni can be sent to the media office as per protocol.”

The reporter adds that, earlier that day he also sent questions to the university’s media office (addressed to Susan van der Merwe). In this correspondence, he stated that he possessed information that was potentially embarrassing to the university, as well as to certain employees. “I therefore hope the university sees its way open to respond to this in detail,” he added.

Van der Merwe told him that an official was under way, after which he e-mailed the following message: “In that case please indicate if you gave Smorenburg and (Pieter) Kloppers (Dean of Students at SU) the opportunity to personally respond to the very serious allegations made against them.”

He says that Van der Merwe never responded to this message, but it was clear that she did show his enquiry to Smorenburg as he responded that he “was aware” – and yet he did not want to comment. The journalist argues this shows that he did ask Smorenburg for comment, and it is safe to say that the latter accepted that the university spoke on his behalf.

From this, Ley argues that, because Smorenburg reported to Kloppers and were friends, it was safe to assume that the latter was also aware of Malan’s questions to SU’s media office.

She also says that both Kloppers and Smorenburg accepted the SU’s response, and that it was therefore not true that Malan did not ask them for comment.

In addition, Ley says Malan did ask about the issue of legal representation for the students. “If Smorenburg and / or the university responded to this question, there would have been enough opportunity to clarify matters. The fact that they did not make use of this opportunity is not the newspaper’s fault.”

In conclusion, she says the story was in the public interest and was substantially correct. “The complainant produces no evidence to the contrary, except by making a general observation that the story was ‘factually wrong’…”

Ley also points out that the university’s vice-chancellor has in the meantime apologized in public for what the two students had to endure and launched an independent investigation into [the university’s] handling of the matter – as presented by Rapport.”

Kloppers replies that Ley’s argument (that he did not produce any evidence to the contrary) is disingenuous – he did mention Smorenburg’s statement, which was evidence.

He says he accepts that Rapport did ask for comment. “However, Rapport knew that members of staff could not respond to questions from the media, and therefore journalistic ethics demanded that the newspaper should have been more careful in its conclusions.”

My considerations

Clearly cognizant of the fact that SU’s protocol dictates that members of staff are not allowed to respond to the media about matters involving the university, Malan sent a list of 25 questions to its media office.

He has to be commended for doing so, and for asking so many probing questions on this matter.

Regarding the specific issue raised by Kloppers, namely that of legal representation, the reporter did ask for comment on Smorenburg’s (alleged) statement that “he would inform them when [the students] could get their own legal representation”.

This question implied that the students were not immediately allowed legal representation. I am therefore satisfied that Malan has done what he could, given the circumstances, to clarify this matter.

Personal, professional harm

Kloppers concludes that Malan either deliberately ignored information available to him, or he did not live up to the expected standards of journalism – thereby (unnecessarily) causing some serious personal and professional harm, which was compounded by the fact that the article was published on the front page.

Ley denies that the story was inaccurate and unfair, and asks this office to dismiss the complaint.

My considerations

Based on my arguments above, it follows that I believe that the story with reference to Smorenburg was biased, one-sided and unfair as argued above, and that this has unnecessarily tarnished his professional reputation. I also accept that it did him some personal harm.

In this process SU also unnecessarily and unfairly suffered.

Section 3.3 of the Code of Ethics and Conduct is relevant here. It states:

3.3 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:

3.3.1. The facts reported are true or substantially true; or

3.3.2. The reportage amounts to fair comment based on facts that are adequately referred to and that are true or substantially true; or

3.3.3. The reportage amounts to a fair and accurate report of court proceedings, Parliamentary proceedings or the proceedings of any quasi-judicial tribunal or forum; or

3.3.4. It was reasonable for the information to be communicated because it was prepared in accordance with acceptable principles of journalistic conduct and in the public interest.

3.3.5. The article was, or formed part of, an accurate and impartial account of a dispute to which the complainant was a party.

Based on the selective quoting of Smorenburg’s SMS, I do not believe that any of the provisions as cited above (Sections 3.3.1 – 3.3.5) applies to the matter at hand.

General comment

This is important: This finding should not be seen as a condonation or a rebuttal of either the actions of the students or those of SU prior, during or after the university’s handling of the matter. The task of this office is not to adjudicate people outside of the press – my focus is on the ethical quality of the text that Rapport produced on this specific issue, and only on that.

Finding

Inaccurate, unfair information

Forcing students to place a certain apology; ignoring its content

The selective quoting from Smorenburg’s SMS (both the sentence that Malan did quote, and the rest that he ignored) resulted in reportage that was unfair, one-sided, misleading and out of context, and it unnecessarily put Smorenburg as well as SU in a negative light.

This is in breach of the following sections of the Code of Ethics and Conduct:

- 1.1: “The media shall take care to report news truthfully, accurately and fairly”; and

- 1.2: “News shall be presented in context and in a balanced manner, without any intentional or negligent departure from the facts whether by … summarisation”.

Inverted commas

The story used inverted commas, unjustifiably putting doubt in the readers’ minds regarding SU’s “investigation” and the students’ “temporary” suspension. This is in breach of Section 1.1 of the Code (with regards to the word “fairly”).

Social media

This part of the complaint is dismissed.

Omitting a central fact

This part of the complaint is dismissed.

No verification

This part of the complaint is dismissed.

Personal, professional harm

The story has caused unnecessary harm to Smorenburg’s professional reputation and to him as person, as well as to SU. This is in breach of Section 3.3 of the Code which states, “The media shall exercise care and consideration in matters involving…reputation…”

Seriousness of breaches

Under the headline Hierarchy of sanctions, Section 8 of our 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 Tier 2 offences.

Sanction

Inaccurate, unfair information

Rapport is directed to apologise to Smorenburg in particular and to SU in general for:

- selectively quoting from Smorenburg’s SMS (both the sentence that Malan did quote, and the rest that he ignored) resulting in reportage that was unfair, one-sided, misleading and out of context, and that this unnecessarily put Smorenburg as well as SU in a negative light;

- the use of inverted commas, unjustifiably putting doubt in the readers’ minds regarding SU’s “investigation” and the students’ “temporary” suspension; and

- causing unnecessary harm to Smorenburg’s and SU’s reputation.

The newspaper is directed to publish this apology in full on its front page, above the fold.

The text, which should be approved by me, should:

- start with the sanction; and

- end with the sentence, “Besoek www.presscouncil.org.za vir die volledige bevinding.”

The headline should reflect the content of the text. A heading such as Matter of Fact, or something similar, is not acceptable.

The text should be published on Rapport’s website as well.   

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 [email protected].

Johan Retief

Press Ombudsman

Issued by the Press Council, 24 March 2016