South African Press Code and Complaints Procedures

PART A: SOUTH AFRICAN PRESS CODE

Preamble

The press exists to serve society. Its freedom provides for independent scrutiny of the forces that shape society, and is essential to realising the promise of democracy. It enables citizens to make informed judgments on the issues of the time, a role whose centrality is recognised in the South African Constitution.

Section 16 of the Bill of Rights states that:

(1) "Everyone has the right to freedom of expression, which includes:

a) Freedom of the press and other media;
b) Freedom to receive and impart information or ideas;
c) Freedom of artistic creativity; and
d) Academic freedom and freedom of scientific research.

(2) "The right in subsection (1) does not extend to:

a) Propaganda for war;
b) Incitement of imminent violence; or
c) Advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm."

The press holds these rights in trust for the country's citizens; and it is subject to the same rights and duties as the individual. Everyone has the duty to defend and further these rights, in recognition of the struggles that created them.

Our work is guided at all times by the public interest, understood to describe information of legitimate interest or importance to citizens.

As journalists, we commit ourselves to the highest standards of excellence, to maintain credibility and keep the trust of our readers. This means striving for the maximum truth, avoiding unnecessary harm and acting independently.

We adopt the following Code:

1. Reporting of News

1.1 The press shall be obliged to report news truthfully, accurately and fairly.

1.2 News shall be presented in context and in a balanced manner, without any intentional or negligent departure from the facts whether by distortion, exaggeration or misrepresentation, material omissions, or summarisation.

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 due regard to context and importance. Where a report is not based on facts or is founded on opinions, allegation, rumour or supposition, it shall be presented in such manner as to indicate this clearly.

1.4 Where there is reason to doubt the accuracy of a report and it is practicable to verify the accuracy thereof, it shall be verified. Where it has not been practicable to verify the accuracy of a report, this shall be mentioned in such report.

1.5 A publication should seek the views of the subject of serious critical reportage in advance of publication; provided that this need not be done where the publication has reasonable grounds for believing that by doing so it would be prevented from publishing the report or where evidence might be destroyed or sources intimidated. If the publication is unable to obtain such comment, this shall be stated in the report.

1.6 A publication should make amends for publishing information or comment that is found to be inaccurate by printing, promptly and with appropriate prominence, a retraction, correction or explanation.

1.7 Reports, photographs or sketches relating to indecency or obscenity shall be presented with due sensitivity to the prevailing moral climate. A visual presentation of sexual conduct should not be published, unless public interest dictates otherwise.

1.8 Journalists shall not plagiarise.

2. Gathering of News

2.1 News should be obtained legally, honestly and fairly, unless public interest dictates otherwise.

2.2 Press representatives shall identify themselves as such, unless public interest dictates otherwise.

3. Independence & Conflicts of Interest

3.1 The press shall not allow commercial, political, personal or other non-professional considerations to influence or slant reporting. Conflicts of interest must be avoided, as well as arrangements or practices that could lead audiences to doubt the press's independence and professionalism.

3.2 Journalists shall not accept a bribe, gift or any other benefit where this is intended or likely to influence coverage.

3.3 The press shall indicate clearly when an outside organisation has contributed to the cost of newsgathering.

3.4 Editorial material shall be kept clearly distinct from advertising.

4. Privacy

4.1 The press shall exercise exceptional care and consideration in matters involving the private lives and concerns of individuals, bearing in mind that any right to privacy may be overridden only by a legitimate public interest.

4.2 The identity of rape victims and victims of sexual violence shall not be published without the consent of the victim, or in the case of children, without the consent of their legal guardians.

4.3 The HIV/AIDS status of people should not be disclosed without their consent, or in the case of children, without the consent of their legal guardians.

5. Dignity & Reputation

The press shall exercise exceptional care and consideration in matters involving dignity and reputation, bearing in mind that any right to privacy may be overridden only by a legitimate public interest.

6. Discrimination & Hate Speech

6.1 The press should avoid discriminatory or denigratory references to people's race, colour, ethnicity, religion, gender, sexual orientation or preference, physical or mental disability or illness, age, or other status, except where it is relevant to the matter reported.

6.2 The press should not refer to a person's race, colour, ethnicity, religion, gender, sexual orientation or preference, physical or mental disability or other status in a prejudicial or pejorative context, except where it is relevant to the matter reported.

6.3 The press has the right and indeed the duty to report and comment on all matters of legitimate public interest. This right and duty must, however, be balanced against the obligation not to publish material which amounts to hate speech.

7. Advocacy

A publication is justified in strongly advocating its own views on controversial topics, provided that it treats its readers fairly by:

7.1 Making fact and opinion clearly distinguishable;

7.2 Not misrepresenting or suppressing relevant facts; and

7.3 Not distorting the facts.

8. Comment

8.1 The press shall be entitled to comment upon or criticise any actions or events of public interest, provided such comments or criticisms are fairly and honestly made.

8.2 Comment by the press shall be presented in such manner that it appears clearly that it is comment, and shall be made on facts truly stated or fairly indicated and referred to.

8.3 Comment by the press shall be an honest expression of opinion, without malice or dishonest motives, and shall take fair account of all available facts which are material to the matter commented upon.

9. Children

For purposes of this Code, "child pornography" shall mean: "Any image or any description of a person, real or simulated, who is or who is depicted or described as being, under the age of 18 years, engaged in sexual conduct; participating in or assisting another person to participate in sexual conduct; or showing or describing the body or parts of the body of the person in a manner or circumstances which, in context, amounts to sexual exploitation, or in a manner capable of being used for purposes of sexual exploitation."

9.1 Child pornography shall not be published.

9.2 Exceptional care and consideration must be exercised when reporting on matters where children under the age of 18 are involved. If there is any chance that coverage might cause harm of any kind to a child, he or she should not be interviewed, photographed or identified unless a custodial parent or similarly responsible adult consents or a public interest is evident.

9.3 The press shall not identify children who have been victims of abuse or exploitation, or have been charged with or convicted of a crime.

10. Violence

Due care and responsibility shall be exercised by the press with regard to the presentation of brutality, violence and atrocities.

11. Headlines, Posters, Pictures & Captions

11.1 Headlines and captions to pictures shall give a reasonable reflection of the contents of the report or picture in question.

11.2 Posters shall not mislead the public and shall give a reasonable reflection of the contents of the reports in question.

11.3 Pictures shall not misrepresent or mislead nor be manipulated to do so.

12. Confidential & Anonymous Sources

12.1 The press has an obligation to protect confidential sources of information.

12.2 The press shall avoid the use of anonymous sources unless there is no other way to handle a story.

Care should be taken to corroborate the information.

12.3 The press shall not publish information that constitutes a breach of confidence, unless a legitimate public interest dictates otherwise.

13. Payment for Articles

The press shall avoid chequebook journalism where informants are paid, particularly when criminals are involved, except where the material concerned ought to be published in the public interest and the payment is necessary for this to be done.

It shall be of the essence of the adjudication proceedings that:

§Complaints be considered and adjudicated upon within the shortest possible time after the publication of the matter giving rise to the complaint;

§Complaints be considered and adjudicated upon in an informal manner; and,

§Whenever possible, the Ombudsman and SAPAP and the parties will strive for a speedy and amicable settlement.

1. Complaints

1.1 "Complainant" shall mean and include any person who or body of persons which lodges a complaint, provided that such person or body of persons has a direct, personal interest in the matter complained of.

1.2 The "respondent" in respect of a complaint shall be the proprietor of the publication which may delegate its editor or, in his or her absence, an assistant editor or other suitable editorial representative of the member concerned, to act and appear in its stead in respect of any complaints dealt with either by the Ombudsman or the SAPAP.

1.3 A complaint shall be made as soon as possible, but not later than fourteen days after the date of the publication giving rise to the complaint. The Ombudsman may on reasonable grounds accept late complaints if in his or her opinion there is good and satisfactory explanation for the delay.

1.4 The complaint shall be made to the Ombudsman either in person, by telephone or in writing.

"Writing" shall include cable, telegram, telex, e-mail and fax messages. Where a complaint is made other than in writing it shall be confirmed forthwith in writing or the Ombudsman's office shall assist the complainant to do so. Upon the receipt of a complaint by the Ombudsman, the Ombudsman shall be entitled to request from the complainant a copy of the material published giving rise to the complaint, and the complainant shall be obliged to forward such a copy to the Ombudsman forthwith.

1.5 The Ombudsman shall not accept a complaint:

1.5.1 Which is anonymous or which, in his or her opinion, is fraudulent, frivolous, malicious or vexatious and which prima facie falls outside the ambit of the Code;

1.5.2 Where at any stage of the proceedings legal action is threatened or is considered by the Ombudsman to be a possibility, unless the complainant in writing waives any right to claim civil relief of whatsoever nature directly or indirectly related to or arising out of the complaint;

1.5.3 Which is directed at a newspaper outside his or her jurisdiction.

1.6 Where the Ombudsman has accepted a complaint and the respondent offers to settle the matter complained of by way of publication or otherwise, which in the opinion of the Ombudsman constitutes a reasonable and sufficient offer of settlement of such complaint, the Ombudsman may withdraw his or her acceptance of the complaint.

1.7 Where the Ombudsman declines to accept a complaint on any of the grounds specified in rules 1.3 or 1.5 or withdraws his or her acceptance of a complaint under rule 1.6 the complainant may, within seven days, with full reasons, request the Chairperson of SAPAP to review the Ombudsman's decision. In the event of the Chairperson overruling the Ombudsman's decision, the matter shall proceed in terms of rule 2.

2. Conciliation and Adjudication Procedure by the Ombudsman

2.1 Upon acceptance of a complaint by the Ombudsman, he or she shall immediately notify the respondent in writing of the complaint, giving sufficient details to enable the respondent to investigate the matter and respond.

2.2 The Ombudsman shall forthwith endeavour to achieve a settlement.

2.3 The Ombudsman shall hold discussions with the parties on an informal basis with the object of achieving a speedy settlement. Legal representation is permitted.

2.4 If the complaint is not settled within 14 days of its notification to the respondent, the Ombudsman may, if it is reasonable not to hear the parties, decide the matter on the papers.

2.4.1 Where the Ombudsman decides to hold a hearing, the Ombudsman shall appoint a public and a press member of the Appeals Panel to adjudicate the matter with him or her at the hearing.

2.4.2 Decisions shall be by a majority vote.

2.4.3 Legal representation shall be permitted at hearings.

2.5 Within 7 days of receipt of the decision, any one of the parties may apply for leave to appeal to the Chairperson of the SAPAP and the grounds of appeal shall be fully set.

2.6 The application and grounds must be filed at the Ombudsman's office.

2.7 The Ombudsman shall inform the other party of the application for leave to appeal and shall advise the party that he or she may file a response to the application for leave to appeal within 7 days of receipt thereof.

2.8 If the Chairperson is of the view that there are reasonable prospects that the SAPAP may come to a decision different from that of the Ombudsman or the Ombudsman with members, as the case may be, the Chairperson shall grant leave to appeal.

3. Adjudication Procedure of SAPAP

3.1 Where leave to appeal is granted in terms of rule 2.8, the Ombudsman shall place before SAPAP all the documentation that he or she had before him or her and the Ombudsman shall also inform both parties of the date and venue of the hearing before the SAPAP.

3.2 The Chairperson of SAPAP shall appoint one press member and one public member from the persons appointed in terms of clause 10 of the Constitution to hear the appeal with him.

3.3 The Chairperson shall determine a date, time and venue for adjudication of the appeal, which shall be heard as soon as possible after receipt by him or her of the documents referred to in rule 3.1.

3.4 It shall not be obligatory for either party to appear personally before the SAPAP, but they are entitled to attend and to address the SAPAP which is, in any case, entitled to question them on the matter: provided that a respondent is not under a duty to disclose the identity of an informant.

3.5 The Chairperson may request the parties to appear personally. The Chairperson may advise parties that, in the circumstances, an adverse inference may be drawn from failure to comply with such request without good cause.

3.6 The parties shall be entitled to legal representation when appearing before the SAPAP.

3.7 If the SAPAP finds against a respondent who is present, the respondent shall be given an opportunity to address the Tribunal in mitigation of any order that may be made.

3.8 The hearings of the SAPAP shall be open to the public unless the identity of a rape victim, a victim of sexual violence, a child, or a victim of extortion is at issue.

4. Variation of Procedure

4.1 The Ombudsman or Chairperson of the SAPAP may, if satisfied that no injustice will result, and upon such conditions as he or she may impose:

4.1.1 Extend any time period contemplated in these rules;

4.1.2 At any stage require any allegation of fact to be verified on oath;

4.1.3 Call upon the parties to a dispute to furnish such further information as he or she may consider necessary.

5. Findings of SAPOM or SAPAP

5.1 The SAPOM or SAPAP may uphold or dismiss a complaint or appeal, as the case may be.

5.2 If a finding is made against a member of PMSA or a publication that has voluntarily become subject to the jurisdiction of the SAPOM and SAPAP, the SAPOM or the SAPAP, as the case may be, may make any one or more of the following orders against the proprietor of the publication:

5.2.1 Caution or reprimand a respondent;

5.2.2 Direct that a correction, retraction or explanation and, where appropriate, an apology and/or the findings of the SAPOM or SAPAP be published by the respondent in such manner as may be determined by the SAPOM or the SAPAP, as the case may be.

5.2.3 Order that a complainant's reply to a published article, comment or letter be published by the respondent;

5.2.4 Make any supplementary or ancillary orders or issue directives that are considered necessary for carrying into effect the orders or directives made in terms of this clause and, more particularly, issue directives as to the publication of the findings of SAPOM and/or SAPAP.

5.3 In the reasons for the decision and/or sanction the SAPOM or SAPAP is entitled to criticise the conduct of the complainant in relation to the complaint, where such criticism is warranted in the view of SAPOM or SAPAP.

5.4 The Ombudsman shall cause any findings, reasons for a finding and/or requirements of a tribunal to be sent to the complainant and to the respondent who shall comply with the SAPOM or the SAPAP's orders or directives, if any.

5.5 The Ombudsman shall keep on record all findings and reasons for findings by the Ombudsman or SAPAP.

5.6 The records referred to in rule 5.5 shall be public documents except insofar as those documents are privileged in terms of the Promotion of Access to Information Act 2000, identify a rape victim, a person who has been sexually assaulted , a child, or a victim of extortion.

Annexure A

Our Complaints Procedures states: "The Ombudsman shall not accept a complaint...where at any stage of the proceedings legal action is threatened or considered by the Ombudsman to be a possibility, unless the complainant in writing waives any right to claim civil relief of whatsoever nature directly or indirectly related to or arising out of the complaint."

This waiver is designed to avoid tribunal-hopping and to prevent a publication having to answer twice on the same complaint - to us and then later to the courts or other tribunals. We thus give you a choice of tribunal upfront. If your goal is to clear your name quickly and cost-effectively, you would choose our system. If it is other relief you seek, you might choose another route to suit your goal.

Waiver

I, ________ the undersigned, hereby agree to submit my complaint and any dispute arising from my complaint for adjudication to the SA Press Ombudsman ("the Ombudsman") subject to the SA Press Code and Complaints Procedures of the SA Press Council.

I accept the decision of the Ombudsman, or in the event of an appeal, the decision of the Press Appeals Panel as final and binding.

Furthermore, by submitting my complaint for adjudication to the Ombudsman I waive my right to approach a court of law or any other tribunal to adjudicate upon my complaint or any dispute arising from my complaint submitted to the Ombudsman.

_______

Signature Date

Issued by the Press Council, October 10 2011

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