Mere Boase and five others vs. Sowetan

Ruling by the Deputy Press Ombudsman

September 12, 2011

This ruling is based on the written submissions of Mr Mere Boase, Mr Lekubu Levy, Mr Joel Tshipala, Ms Nto Rikhotso, Ms Khensani Mnisi and the Films and Publication Board (Ms Yoliswa Makhasi), as well as on the Sowetan's published response to people who have complained directly to the newspaper.

Complaint

Mr Mere Boase and five others complain about a front page picture as well as five other pictures on page 2 of the Sowetan that were published on August 15, 2011. The front page headline read SIES! The headlines on page two were HAYI KHONA! and The 15-minute bonking that ruined officers' lives.

The gist of the complaints is that the:

• pictures are pornographic, profane, sexually explicit, in bad taste, vulgar and crude;
• newspaper did not take the prevailing moral climate into account;
• newspaper did not take into account the effect of the pictures on the children and the families of the couple involved;
• pictures will create a monkey-see, monkey-do effect, especially on children;
• front page picture is especially objectionable; and
• pictures show that the newspaper holds black people in low esteem.

Analysis

The story is about two officers - a man from Correctional Services and a Police woman, both in uniform - who were engaging in sexual contact in a hospital room that was locked.

The pictures were obtained from a private video that the man in the picture reportedly had made himself.

The front page consists of one picture that nearly fills the whole page. The picture portrays the man as kneeling in front of the woman, whose pants are lowered. The man is appearing to be touching her private parts; the woman is looking down. Both people's faces are partly blocked out.

In his comment that accompanies the picture on the front page, Police Minister Nathi Mthethwa reportedly calls the footage "an embarrassment to the uniform and badge of the (police) and that of correctional services".

In an insert on the picture, the newspaper comments as follows: "Under normal circumstances, we would not publish what appears to be sexually explicit material. Publishing material of such a nature could be justifiably offensive to sensitive readers. Sound journalistic codes would also not allow for the publication of such material. We apologise for publishing material of this nature today. But we hope that you, dear reader, will understand the rationale. We are doing so reluctantly, albeit with good reason..."

This text forms the first part of an editorial that is published on page 12. The editorial says that the newspaper does not believe that such material should make the front page of a family newspaper and adds that children should not have access to it. The newspaper then justifies its decision to publish as follows: "The seriousness of their conduct lies in complete disrespect for the people of this country. They are having sex, on duty, in police uniform, in a government hospital, during working hours - all of which belong to the citizens of this country."

The main picture on page 2 is similar to the one on the front page. The only difference is that the woman's left hand that is lowered in the front page picture is now lifted up - with the result that not only their faces are partly blocked out, but this time her private parts are also covered.

The newspaper uses four other smaller pictures, three of which show the two officers engaging in different acts of sexual activity.

The first story on page 2 is reporting Mthethwa's comments in more detail. The second story mainly describes the contents of the video and uses a pseudonym ("Big" and "Nina") for the officers.

Now: When our office accepts a complaint, we ask the publication to respond within 14 days. This time it is different, though. The Sowetan itself has received so many complaints that it has decided to publish its response (on August 19) to these objections, written by its public editor, Joe Latakgomo.

A few days later the newspaper's editor says in an email to our office that Latakgomo's column "serves as the final word on the matter".

I shall therefore now first deal with this column before looking at the merits of the complaint.

Essentially, Latakgomo argues that, while the story may have been in the public interest, the newspaper could have handled it differently whilst still achieving the same effect. He says that the pictures could have been blurred, or cropped to minimize exposure of offensive positions, adding that it was not necessary to publish the picture on the front page. He calls the front page picture vulgar, indecent and in poor taste and adds that it is pornographic.

I note that the newspaper apologises on its front page for the publication of the pictures - and yet it still continues with the publication of those pictures. One cannot take such an "apology" seriously.

Also: The newspaper, in its "final word on the matter", does not apologise either.

I shall now look at the merits of the complaint:

Firstly, a general comment: It certainly was in the public interest to report this matter - the people involved were public officials, who were paid by the taxpaying public, and who were engaged in sexual conduct in a public facility while on duty and in uniform.

The public had the right to know.

The issue that I am therefore about to address, is the question whether it was in the public interest for the Sowetan to publish the pictures so explicitly and prominently.

Pornographic, profane, sexually explicit, in bad taste, vulgar, crude

Most complainants call the publication of the pictures pornographic, profane, sexually explicit, in bad taste, vulgar and crude.

The Press Code does not use the word "pornography", except when stipulating that child pornography shall not be published (Art. 1.7.2). It does not prohibit profanity, bad taste, vulgarity and crudeness either.

It does, however, say in Art. 1.7.1: "A visual presentation of sexual conduct may not be published, unless a legitimate public interest dictates otherwise."

There is no doubt that the pictures do portray "sexual conduct". The only question, therefore, is if it was in the public interest to publish these explicit pictures so prominently.

I have noted that another newspaper, the day prior to the Sowetan's publication, carried the same story. It used one picture of the couple, embracing each other. This picture is less explicit and used less prominent than those in the Sowetan - but it still portrayed the same message.

The Sowetan could have done the same. It need not have reverted to publishing the pictures so prominently and explicitly to get its message across - there was no "public interest" to do so. Also keep in mind that children are part of the public and that they should therefore also be kept in mind when a decision on public interest is taken.

Prevailing moral climate

One complainant says that the newspaper failed to consider the moral fibre of society that it purported to address; another calls the pictures "moral degeneration"; yet another says that the pictures stripped him of all forms of dignity and morals.

The Press Code states in Art. 1.7: "...photographs...relative to matters involving indecency or obscenity shall be presented with due sensitivity towards the prevailing moral climate."

Of course, it is difficult to define the phrase "prevailing moral climate", but in this case the public has done it for me - given the sheer amount of response that the newspaper has received. Latakgomo, in his column, admits that "thousands of readers" have found the action of the couple morally repugnant - "many of whom" complained to him or simply recorded their disgust in comments on the newspaper's website.

While many of these complainants may have objected to the couple's conduct and not to the newspaper's publication of the pictures, the nature of Latakgomo's column shows that many were indeed up in arms about the newspaper's decision to publish. This is also evident from the page that was devoted to letters to the editor.

If this response by the public to the decision by the newspaper to publish is not indicative of insensitivity towards the prevailing moral climate, I do not know what is.

Effect on the officers' children, families

This part of the complaint deals with the issue that the newspaper did not consider the impact of the publication of the pictures on the children of the couple who appeared in them. Concern is expressed about the children's age, their peers' reaction and the stress that the photographs could put on them. One complainant puts it like this: "They should have thought about the families of these people, what about the correctional officer with seven...kids, what's going to happen to them, who is going to pay for their counselling..." He adds that Sowetan must take full responsibility for what is going to happen to the families of the people involved.

I have little doubt that the publication of the pictures caused the couple's families and children unnecessary harm and submit that that was not fair to them. If there was an overriding public interest to publish the pictures it would have been a different matter.

Monkey-see, monkey-do: children

Some complain that children may be tempted to emulate the grown-ups in the pictures (the monkey-see, monkey-do syndrome); others merely express concern about what these pictures are teaching the young ones. One says that he has children whom he tries to teach to read newspapers, and asks how many children have bought the paper, laughed and joked about it - "and how many will try to do the same thing at schools...?" Another complainant asks: "Is it acceptable for children to be exposed to such material on (sic) a publication that is supposed to be family orientated?" The Film and Publication Board (FPB) says the "crisp issue is whether the article together with the pictures should have been published in a newspaper that is readily available and accessible to children".

(The FPB describes its mission as follows: "Our mission it is to contribute to the transformation of South African society by acting with due respect for the constitutional right and freedoms with regard to the protection of children from exposure to potentially disturbing, harmful, inappropriate material and from sexual exploitation in publications and audio visual.")

The argument that reportage may cause people to copy the content of the reportage is not a watertight one - the counter-argument is that the same reportage may instead help people to avoid the very same matter.

The part of the complaint that deals with the exposure of children to such material, however, has merit.

If the pictures were published in, let's say, a pornographic magazine, it would have been a different matter as readers would expect pictures such as these. On the other extreme, the publication of such pictures in a church magazine would be unthinkable.

The point is that the nature of the publication is central to the decision whether to publish or not. The Sowetan, by its own admission, is a family newspaper. As argued earlier, these pictures have probably caused many children unnecessary harm and can therefore not be fair to them.

On the front page

Several people specifically complain that the publication of the picture on the front page is unacceptable.

Given my decisions above, it follows that the prominent use of the picture on the front page only serves to exaggerate matters.

Holding blacks in low esteem

One person complains that these pictures would not have been published on the front page of the Sunday Times as its readers are "respectable", and argues: "As a publication aimed primarily at a black readership, I think the Sowetan hold us in very low esteem."

However, what the Sunday Times (or any other publication, for that matter) may or may not publish is pure speculation and therefore it is not an issue that I can entertain. There is also nothing whatsoever in either the editorial or in Latakgomo's column that suggests anything of the sort.

Finding

Pornographic, profane, sexually explicit, in bad taste, vulgar, crude

The complaint regarding "pornographic, profane, in bad taste, vulgar and crude" is dismissed.

It was not in the public interest to see such explicit pictures published so prominently and is therefore in breach of Art. 1.7.1 of the Press Code that states: "A visual presentation of sexual conduct may not be published, unless a legitimate public interest dictates otherwise."

Prevailing moral climate

From the overwhelming reaction by the public it is clear that the newspaper was in breach of Art. 1.7 of the Press Code that says: "...photographs...relative to matters involving indecency or obscenity shall be presented with due sensitivity towards the prevailing moral climate."

Effect on the officers' children, families

The publication of the pictures was unnecessarily harmful to the couple's family and children and is therefore in breach of Art. 1.1 that states: "The press shall be obliged to report...fairly."

Monkey-see, monkey-do: children

The part of the complaint that deals with copying sexual conduct is dismissed.

The publication of the pictures is in breach of Art. 1.1 as stated above as they are harmful to children in general.

On the front page

The front page picture is unnecessarily explicit and prominent and is in breach of Art. 1.1 of the Code as stated above.

Holding blacks in low esteem

This part of the complaint is dismissed.

Sanction

The newspaper is directed to apologise to:

• its readers for publishing pictures that were unnecessarily explicit and prominent;
• its readers for not being sensitive enough towards the prevailing moral climate; and
• the couple's family, including their children, and to children in general for unfair reportage, unnecessarily exposing them to adult footage and thereby causing them harm.

The following apology should be published on the front page, above the fold. The heading should include the word "apology" or "apologise":

"The Sowetan apologises to:

• our readers for publishing sexually explicit pictures too prominently;
• our readers for not being sensitive enough towards the prevailing moral climate;
• the couple's family, including their children, for unnecessarily exposing them to adult footage of their parents;
• children in general for unnecessarily exposing them to adult footage.

"See page 2 for the full story."

The following text should be published on page 2:

Six readers lodged a complaint with the Press Ombudsman about a front page picture as well as five other pictures on page 2 that we published on August 15, 2011. The front page headline read SIES! The headlines on page two were HAYI KHONA! and The 15-minute bonking that ruined officers' lives.

The story was about two officers - a man from Correctional Services and a Police woman, both in uniform - who had been engaging in sexual contact in a hospital room. The sexually explicit pictures were obtained from a private video that the man in the picture reportedly had made himself. We nearly filled the whole front page with one such picture, and continued on page with five more.

The gist of the complaints was that:

• the pictures were pornographic, profane, sexually explicit, in bad taste, vulgar and crude;
• we did not take the prevailing moral climate into account;
• we did not take into account the effect of the pictures on the children and the families of the couple involved;
• the pictures would create a monkey-see, monkey-do effect, especially on children;
• front page picture was especially objectionable; and
• pictures showed that we held black people in low esteem.

Deputy Press Ombudsman Johan Retief noted that we did apologise on our front page for publishing the pictures - but said that we nevertheless continued with the publication of those pictures. "One cannot take such an ‘apology' seriously", he said. He also noted that we, in a column by our Public Editor, did not apologise either.

Before commencing with his ruling, Retief stated that the issue was indeed in the public interest - the people involved were public officials, they were paid by the taxpaying public, and they were engaged in sexual conduct in a public facility while on duty and in uniform. "The public had the right to know," he said. He pointed out that the issue that he was going to address was the question whether it was in the public interest for us to have published the explicit pictures so prominently.

Retief ruled that the prominent publication of these explicit pictures:

• was not in the public interest and that we could have conveyed the same message by handling them differently;
• does not show due sensitivity towards the prevailing moral climate, as required by the Press Code;
• was un-called for in a family newspaper; and
• was unnecessarily harmful to the couple's family and their children, and to children in general.

He dismissed the complaint regarding the pictures being pornographic, profane, in bad taste, vulgar and crude, the allegation that children would be tempted to copy the sexual conduct, as well as the statement that we held blacks in low esteem.

We apologise for publishing these explicit pictures so prominently, that we did not show enough sensitivity towards the prevailing moral climate, that we ignored the fact that we are a family newspaper, and that we have caused unnecessary harm to the couple's families, including their children, and to children in general.

Visit www.presscouncil.org.za (rulings, 2010) for the full finding.

Appeal

 Please note that our Complaints Procedures lay down that within seven days of receipt of this decision, anyone of the parties may apply for leave to appeal to the Chairperson of the SA Press Appeals Panel, Judge Ralph Zulman, fully setting out the grounds of appeal. He can be contacted at [email protected].

Johan Retief

Deputy Press Ombudsman

Issued by the Press Ombudsman, September 12 2011

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