Alide Dasnois vs. Independent Newspaper

Mon, Aug 1, 2016

Ruling by the Press Ombud

1 August 2016

This ruling is based on the written submissions of Ms Alide Dasnois, former editor of the Cape Times, and those of Mr Stuart Harrison, on behalf of Independent Newspapers.

Dasnois is complaining about an article on the front page in the Cape Times of 10 May 2016, headlined Independent vindicated as Dasnois settlement reached and running over to page 3, headlined ‘Failed to have Madiba’s death on front page’.

The gist of this story also appeared in sister publications of the Cape Times, and she complains about those as well (details below).

Complaint

Dasnois complains that Independent’s coverage of the outcome of her case against the media house following her dismissal, as heard in the Labour Court, was unfair (details below).

The texts

Some of the articles covered the outcome of the court case between Dasnois and Independent Newspapers, while others mainly reported the latter’s views on this matter.

The arguments

Dasnois’s complaint in more detail

What follows, is Dasnois’s version of events:

She was the editor of the Cape Times when her employment was ended on or about 30 June 2014.

She challenged the fairness of her dismissal, which challenge was filed on her behalf in the Labour Court on 26 January 2016 (in a document headlined, Statement of Case).

She points out the following allegations made by her in that document, which are of particular importance to this complaint:

- Her dismissal was discriminatory in that it breached her editorial independence;

- She was falsely and publicly labelled as:

o a racist; and

o an immoral person, who at the time of Pres Nelson Mandela’s death had disrespected him and those who mourned him.

Dasnois adds that the principal authors of these allegations made against her were Dr Iqbal Survé, owner of Independent Newspapers, and his executive editor, Karima Brown – both of whom still occupied their positions at the time that the offensive articles were published.

In order to vindicate her rights in relation to her unfair dismissal, she claimed payment of compensation, alternatively damages.

The trial date was set for 9 May 2016. However, on May 6 Independent’s legal team approached her attorneys with a settlement offer. As she was advised that such settlements usually focused on money matters, she was not prepared to settle “because my right to dignity was of particular significance to me…”

To meet her concerns in this regard, Independent’s attorneys proposed a joint public statement in which the media house would withdraw some of the more egregious labels that it had attached to her.

“The exact wording of that public statement proved to be an issue of considerable controversy. I obviously assumed that the great concern of [Independent’s] lawyers over each was because their client actually intended to stick to the agreed script when it communicated the facts of the settlement to [its] readers…”

Eventually, a Joint Announcement was agreed upon, which was announced in the Labour Court on May 9. Independent’s group executive for marketing and communication, Lutfia Vayej, then released a statement to other newspaper groups headlined, Independent vindicated as Dasnois settles over Mandela coverage.

The next day, Cape Times published a copy of this release, almost in verbatim form, as an article purportedly written by a “staff reporter” – as if such a journalist had covered the case.

The release did not mention the core features of the settlement agreement – no mention was made of a financial settlement, the terms of which may not have been disclosed, or of the fact that a joint statement was issued as part of the settlement agreement and that this statement dealt in explicit terms with a number of issues on which the Vajey statement commented.

Dasnois submits, “A number of hurtful and untrue allegations which had been made against me and about which I had litigated in the first place are then repeated as if they were the truth.” From this, she concludes that Independent has acted in “extreme bad faith”, having in an act of vindictiveness used the opportunity to once again stick a knife in her back.

She argues that, in the context of court proceedings, the word “vindicated” would mean “exonerated”, or “exculpated”, or “found free from blame” – which was blatantly untrue and misleading, as Independent has in fact undertaken to withdraw damaging and hurtful claims about her.

Also, employers with a good chance of success do not settle in this way – they settle because their attorneys have advised them they stand a good chance of losing. Therefore, Independent’s claim “that if the case went to court it would win and I would lose is not merely a spin but a deliberate falsehood”.

Her attorneys contacted their Independent counterparts, calling on them to withdraw the statement immediately and to undertake not to attempt to publish it again.

Some newspapers nevertheless published the statement in the course of that evening and the following morning. Later, Independent’s attorneys told Dasnois their client believed that the statement was not in breach of the settlement agreement and that it had been prompted by (unspecified) statements by her which were unwarranted and not in accordance with the joint announcement.

The Cape Times then published the two articles in dispute.

She says the crux of the first article is the claim that she had “attempted to conclude the matter in return for a substantial financial payout. We have constantly rejected this and believe that the matter of Dasnois decision … had to be ventilated in an open court”. It also said that she falsely sought to depict her claim as a case about press freedom and editorial prerogative – which made it even more important for her to try it in court.

Yet, elsewhere on the same page, it was reported that the case had inexplicably been settled by agreement.

Dasnois points out the settlement agreement, signed by Survé, said Independent Newspapers acknowledged that her:

- decision not to put Mandela’s death on the front page had not been intended in any way to show disrespect for him or for his legacy, or to embarrass the media house, its owners or its management – it was a decision in respect of which she was exercising her prerogative as editor; and

- conduct had not been motivated by racism – and it retracted all allegations of racism made against her.

She continues that, despite these statements, Independent still proceeded to publish an article which sought to reassert that her conduct had been “an affront to the dignity and legacy of [Mandela]” and that as an editor she had been guilty of racism.

She summarises it as follows: “[After] informing a court that it agreed to end a dispute with me [Independent Newspapers] immediately recanted with a view to painting a picture of itself as being a victor who was ‘vindicated’ in court when no such thing had happened.”

Dasnois submits that the reportage therefore amounted to a Tier 3 breach of the Code of Ethics and Conduct, which is about “serious misconduct” (by allowing personal or other non-professional considerations to influence or slant reporting).

In closing, she points out that the editor of the Cape Times simply dutifully republished a PR release from the owner of the media house, on the front page, as if it was news.

Dasnois asks as relief an apology, a retraction of the media statement as well as of the two articles in dispute – which went for the reportage in the sister publications as well.

Analysis

In general

I have summarized Dasnois’s arguments quite extensively, not because everything in it was relevant to my adjudication of the matter, but to document the context within which this complaint came to my table.

In turn, Independent has offered a different scenario regarding the background. I am not summarizing this view, as it is not my task to establish who is right and wrong with regards to the interpretation of what has happened prior to the publication of the articles in question.

To avoid repetition, I shall refer to Independent’s arguments only in so far as I disagree with them or they need further thought or exposition.

The following issues fall outside my jurisdiction:

- Everything that happened leading up to the eventual dismissal of Dasnois;

- The content of the final settlement between the parties; and

- The content of the media release by Independent Newspapers (issued by Vayej), and the accompanying complaints by Dasnois about the media house’s actions and intentions in this regard.

My mandate only extends to what the newspaper(s) published. My sole task is to determine whether those texts were in accordance with the Code of Ethics and Conduct – meaning, specifically, whether the reportage was accurate, and whether it was fair (read: balanced, without the omission of material elements).

This first issue of contention is the quotes of Survé’s comments on the matter.

Let me be absolutely clear here: The question is not whether Survé had the right to his opinion, or whether he had the right to express such an opinion. Of course he had that right. I cannot dictate to him what to say – even if the newspaper(s) expressed an opinion by Survé which went contrary to the letter and the spirit of the agreement.

Likewise, the question is also not whether the newspaper(s) had the right to publish his views.

Where the Ombud does come in, is on the issue of whether the public was misled as to the content of the agreement.

I need to keep Independent’s argument in mind that the articles comprised of reporting on the media release and on Survé’s comments – and that the quotes reflected his views.

As Independent correctly points out that Survé’s views are not subject to the Code of Ethics and Conduct and the newspaper was justified in publishing those views, it follows that this office can also not find that the newspaper has allowed personal or other non-professional considerations to influence or slant its reporting – his “considerations” is none of this office’s business.

Also of interest is Independent’s version that it was not only Survé who has commented on the agreement – Dasnois, in fact, preceded him in doing so. She was inter aliareported in various publications as saying that the agreement was a victory for all journalists, and that it underlined the importance of editorial independence for which she had been fighting. She added the real reason for her sacking was the publication on the front page of a finding by the Pubic Protector that Survé’s company, Sekunjalo Marine Services, had been “improperly” awarded a tender.

Harrison submits that it was in fact these statements by Dasnois that prompted Survé to counter with his own media statement.

It is now important to establish exactly what the joint announcement said, and what it did not say – and then to compare it with the newspapers’ reportage.

Let us take a look at the relevant text first. According to my records, the parties agreed on the following matters (slightly edited):

***

In relation to the appropriateness of how Nelson Mandela’s death was covered in the 6 December 2014 edition of the Cape Times, the parties have differing views. While Independent Newspapers does not agree with the decision taken by Alide Dasnois, as editor, to publish a special wraparound, Independent Newspapers acknowledged the following:

a. Her decision wat not intended by her in any way to show disrespect for Mandela or his legacy, or to embarrass Independent Newspapers, its owners or management, and was a decision, in respect of which Dasnois was exercising her prerogative as editor;

b. However, the parties disagreed whether the manner in which she exercised this prerogative was appropriate;

c.  The editor’s conduct was not motivated by racism, and Independent Newspapers retracted all such allegations made against her in the course of proceedings that preceded the termination of her employment.

Independent Newspapers confirmed its ongoing commitment to the principles of press freedom and of media transformation in South Africa and achieving this through ensuring that: its publications have a diversity of content; its editors’ contracts emphasize the importance of balance, accuracy, fairness, all points of view and diversity; it subscribes to the Press Code of South Africa; and its employment practices promote non-racialism, non-sexism and diversity. Its Editorial Code of Conduct affirms, amongst others, that its publications and editors will be “accurate, honest and fair” and “will be editorially independent of government, business, labour, civil society and all other vested interests.

***

For purposes of this adjudication, the following matters stand out:

- Dasnois’s conduct was not:

o motivated by racism (and all allegations to this effect were withdrawn);

o intended to show any disrespect for Mandela or to embarrass Independent Newspapers; and

- The issue of editorial independence was not in dispute – the only bone of contention in this regard was the way in which Dasnois exercised this right.

The content

As I am not concerned with the content of the media release, but only with what was published by the various newspapers within Independent Newspapers (looking at both the text and the headlines), I bypass Survé’s document (the media release) and go straight to the reportage of the various publications.

I now need to establish whether:

- the articles stated as fact anything which contradicted the content of the joint announcement (Survé’s own views on this subject is not up for scrutiny by this office); and

- the newspapers published the content of the joint announcement. This is crucial, as the absence of the gist of the agreement would have opened up the possibility of misunderstandings. I do believe that it would have been unbalanced and unfair to Dasnois if reporting on this matter did not include the proper context (referring to allegations of racism, disrespect for Mandela and editorial independence).

Having scrutinized the text in the Cape Times, I am satisfied that there is nothing in it that contradicted anything in the joint announcement – where it differed from the agreement, it was portrayed as opinion and not as fact.

While the article did not refer to the gist of the agreement, the newspaper did publish the agreement in full (next to the reporting on the media release).

Of course Dasnois will not agree that everything in these articles is correct (such as that she had attempted to conclude the matter in return for a substantial financial payout) – but again, that is a matter of perspective, and the newspaper had the right to hold its own view on this matter (and on others).

While the article itself did not include information about the joint statement, the latter was published on the same page.

I am satisfied that the content published by the sister newspapers was also justified. However, it was what some of them did not publish that was creating a problem.

The Mercury and Pretoria News reported the central matters of the joint statement, which satisfies the criteria set by the Code of Ethics and Conduct; unfortunately, the same cannot be said about The Argus, Daily News, Diamond Fields Advertiser and The Star.

That, I submit, was unfair to Dasnois.

The headlines

The front-page headline of the Cape Times is problematic (Independent vindicated as Dasnois settlement reached).

In several earlier findings I have referred to the judgement of Judge Phillip Levinsohn in 2013 about headlines in a Supreme Court case in Swaziland: “Many readers of newspapers simply glance at the bold headings only and then move on. The impression implanted in the mind of the reader by such blaring headlines is likely to be both deep and lasting. Most readers do not read the whole story…”

(See, for example, the case between Ms Helen Zille and The New Age, 30 June 2014).

From this, it is fair to say that headlines should stand on their own and be interpreted as such. (I have asked Judge Levinsohn personally if this interpretation is correct, to which he replied in the affirmative.)

This means that “many readers” would reasonably have concluded that Independent Newspapers has in fact “won” the case and that Dasnois has “lost” it.

At the very least, the headline should have indicated that this was an interpretation – as it stands, an interpretation was presented as fact.

Let me be specific: Section 10.1 of the Code of Ethics and Conduct states, “Headlines…shall give a reasonable reflection of the contents of the report…in question.” In this case, the “vindication” was presented as an interpretation in the story; yet, the headline changed this interpretation into fact. It can therefore not be said that this headline was a “reasonable reflection” of the article.

The story said, “Independent described the settlement as a vindication of [its] view…” (Emphasis added.)

All the other the headlines are above reproach.

They read:

- Cape Argus: Independent ‘vindicated’ – Publisher and former Cape Times editor settle matter of her removal in 2013;

- Daily News: Settlement reached over editor’s firing;

- Diamond Fields Advertiser: Independent Media, ex-editor resolve differences;

- The Mercury: Independent Media and ex-editor settle case;

- Pretoria News: IM, ex-editor resolve differences – Details of Labour Court settlement not revealed; and

- The Star: Independent Media, ex-Cape Times editor reach deal.

Finding

Content

The complaint regarding the content of the articles is upheld as far as Cape Argus, Daily News, Diamond Fields Advertiser and The Star are concerned – not because of inaccuracies in their reporting, but because the central elements of the joint agreement had been omitted (with special reference to allegations of racism and disrespect for Mandela).

The omission of these elements constitute a breach of the following sections of the Code of Ethics and Conduct:

- 1.1: “The media shall take care to report news…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…material omissions…”

The complaint about the content (read: what was reported) of all these articles is dismissed.

Headlines

The front-page headline of the Cape Times (Independent vindicated as Dasnois settlement reached) is in breach of Section 10.1 of the Code that states, “Headlines…shall give a reasonable reflection of the contents of the report…in question”, as the article mentioned “vindication” as an opinion, while the headline presented it as fact.

The complaint about all the other headlines is dismissed.

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 Tier 2 offences.

Sanction

Cape Times is directed to apologise to Dasnois for stating as fact in its headline that Independent Newspapers had been vindicated, while that was merely an opinion.

The Times, the Diamond Fields Advertiser and The Star are directed to:

- apologise to Dasnois for omitting to state that the agreement entailed that Independent Newspapers withdrew all allegations of racism against Dasnois, that she never intended to show disrespect for Mandela, and that her editorial independence was not in dispute; and

- publish the agreement between the parties in full.

The texts should:

- be published on the same pages which carried the offences;

• start with the apologies;
• end with the sentence, “Visit www.presscouncil.org.za for the full finding”; and
• be approved by me.

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

If the offending article appeared on the newspaper’s website, the apology should appear there 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 Ombud

Issued by the Press Council, 1 August 2016