Mr Vito Palazzolo vs. Sunday Independent: Ruling by the deputy press ombudsman, Johan Retief, April 11, 2011

This ruling is based on the written submissions of Mr Norman Snitcher (attorney), for Mr Vito Palazzolo, and the Sunday Independent newspaper, as well as on a hearing that was held on April 5, 2011 in Johannesburg. Adv Michael Osborne represented Palazzolo and Janet Smith and Ivor Powell the newspaper. The two members of the panel who assisted me were Gerda Kruger (press representative) and Brian Gibson (public representative).

COMPLAINT

Mr Vito Palazzolo complains about a story in the Sunday Independent, published on October 31, 2010 and headlined Vito Palazzolo: Don Vito - a fancy identity and a fist full of ‘pizza' dough.

Palazzolo's initial complaint was that:

• Inasmuch as it contains several incorrect and defamatory statements, the article is not "truthful", "accurate" and "fair" as required by Art. 1.1 of the Press Code.
• In particular, he complained that:
  • the sentence stating that the US Federal Bureau of Investigation linked him to laundering of more than $1.5 billion in drug revenues (in the 1980s) unfair in that it linked him to the Mafia; and
  • the sentence relating to an extradition hearing in South Africa in 2007 implied that he had been convicted in Italy of being a member of the Mafia when in fact the Italian court decision showed that he had not been shown to be a Mafia member.

He added that:

• the story fails to reflect that his Italian conviction of "indirect association" with the Mafia is currently subject to review in an Italian court and that it is also subject to a pending appeal in the European Court of Human Rights;
• several allegations against him are based on (biased) opinions and yet they are presented as facts; and
• no attempt was made to contact either him or his legal representatives.

At the hearing, Osborne withdrew the complaint regarding inaccurate and false statements. (He hastened to add that this did not mean that he admitted that the whole article is accurate - he withdrew this aspect of the complaint because he did not want to obscure the heart of the complaint.)

The grievance was then modified to focus on the complaint that the newspaper:

• did not ask Palazzolo for comment;
• did not verify its information and merely regurgitated old newspaper articles (it committed "churnalism"); and
• was biased regarding the page layout, the content of the article, the headline and neglected to report on his appeal (review) to an Italian court and to the European Court of Human Rights.

ANALYSIS

The article, written by Ivor Powell, is about Palazzolo's immigration status and mostly provides background information regarding his "history". Amongst other things, the story says that records show that he was born in Sicily "as well as" in Burgersdorp, that he was imprisoned in 1985 for financial irregularities in Switzerland and that he used a 36-hour parole to abscond. He then was granted residence in the Ciskei by "politically connected friends in the then ruling National Party". The story also says that, although Palazzolo persistently denied any connection with the Sicilian Mafia, law enforcement agencies around the world had sought for decades to prosecute him in connection with Mafia-related activities. The story continues: "Already requested by the Italian authorities in January 2007, a request for Palazzolo's extradition was finally denied by the South African High Court on the basis that membership of and collusion with the Mafia are not crimes under South African law."

We shall now consider the merits of the complaint:

No attempt to contact him

Palazzolo complained that the newspaper made no attempt to contact either him or his legal representative with regard to the allegations levelled against him in the story. If the Sunday Independent had taken the trouble to do so, he continued, "many of the violations of the Press Code in this article could have been avoided". Besides, he added, there was nothing urgent about the publication of the article as it consisted mainly of "old news" - so the newspaper had no excuse for not having contacted him.

The Sunday Independent admitted that it did not try to contact Palazzolo or Snitcher as the story was not an original piece of reporting that sought to "break new ground in presenting the facts around the immigration status of Mr Palazzolo".

At the hearing, Osborne said that the main complaint was not about "falsehoods", which he described as "besides the point". The gist of the complaint, he explained, is that Palazzolo or his legal representative was not contacted for comment. This was especially necessary, he argued, since the nature of the allegations against Palazzolo was " serious critical reportage" as defined in paragraph 1.5 of the Press Code (... a publication should usually seek the views of the subject of serious critical reportage ..).

Powell argued that the article was a review that did not intend to produce new news. He also said that the information was in the public domain.

It was the panel's task to ascertain whether Powell should have contacted Palazzolo.

Firstly, the panel agreed that the article does not contain any new news - the information was indeed in the public domain. Publications do not normally ask for comment in review stories such as this one. It is noteworthy that Palazzolo himself, in his complaint, referred to the article as consisting mainly of "old news". If indeed there was one sentence containing new news, Powell would have been under an obligation to ask Palazzolo for comment.

We also took into consideration that Powell mainly used impeccable sources, which are legal documents. These are:

• a criminal record from the Italian Ministry of Justice, stating that Palazzolo was associated with the Mafia. This document states that Palazzolo was devoted to international drug trafficking and money laundering of proceeds of the crimes committed, and that the maximum penalty that could be imposed is 15 years;
• a letter from the FBI, addressed to the National Prosecuting Authority of South Africa, stating that there was a valid, outstanding warrant for Palazzolo's arrest in the United States. This was for allegedly receiving and collecting narcotic cash proceeds from heroin and cocaine sales in the US and thereafter for transferring these cash proceeds to pay for past narcotics transactions, providing funds for future narcotics transactions and for sharing profits; and
• the ruling from the Western Cape High Court, that states amongst other things: "It is also common cause that the only basis for the Italian request for the extradition of applicant, is his conviction of complicity of aggravated Mafia-type association under section 416 bis of the Italian Criminal Code." The extradition was denied on the basis that "the joining of an association with Mafia-type characteristics" is not a crime in South Africa. 

In addition, we recognized that Powell also made use of his extensive experience regarding the affairs of Palazzolo - which stretches over many years.

No verification

Palazzolo complained that the newspaper did not verify the allegations in the article and that this should have been done.

The newspaper argued that Powel relied exclusively on information that was already in the public domain ("open-source information") - notably court records or documents before the courts either in South Africa or internationally. It added: "There is even a Wikipedia entry on Mr Palazzolo which canvasses the terrain with appropriate cross-referencing to illustrate the fact that information cited does indeed reside in the public domain."

In his written reply to the newspaper's response Palazzolo said that:

• the story presented allegations as facts and that the journalist should have independently verified these allegations. He said that the newspaper defined "open-source information" as information published by other journalists or other information in the public domain, such as court records;
• the fact that another journalist or forum (such as Wikipedia) published certain harmful allegations "does not absolve the newspaper of critically evaluating those allegations before republishing them as fact or reaching a conclusion as to their veracity" - the more harmful the allegations, the greater the imperative of seeking comment and verification. Wikipedia, he continued, is an open-ended website that can be edited at any time by any (anonymous) person and is ordinarily not subject to editing, fact-checking or quality control. It was therefore not sufficient for the newspaper to have relied upon a posting on this website;
• it is pernicious for journalists "to seek refuge in the argument that a particular article is merely a summation or review of pre-existing coverage of a particular topic". This, he argued, only served to aggravate the harm that earlier ill-sourced or unconfirmed articles had caused;
• the newspaper failed to specify the "public documents" it relied upon - this, he argued, made it impossible for him to prepare a proper reply "and to determine whether or not it was reasonable for the journalist to repeat what had allegedly been reported previously". He added that the newspaper should not treat its sources as confidential in so far as it relied on "public documents";
• the newspaper's "selective" reference to court records was unhelpful "as these record pages number in the thousands";
• the fact that Wikipedia entries were "cross-referenced" did not mean that they were necessarily accurate;
• he had lodged an objection with the editors of Wikipedia, requesting removal of defamatory and inaccurate entries.

The participants at the hearing had an interesting and stimulating discussion on "churnalism" - the practice of merely repeating what has already been reported on before (both regarding published reports and the internet) without independent verification, and presenting it as truth. The result is that previous errors are easily perpetuated.

Osborne argued that Powell is guilty of churnalism and that he took for granted that everything he wrote was true. One example of this, he said, is that the newspaper presented Wikipedia as one of its sources - a source which is not trustworthy. (Everybody, including Powel and Smith, whole-heartedly agreed that Wikipedia should not be seen as a trustworthy source.) Powell assured the meeting that he did not use Wikipedia as a source (although the newspaper referred to this in its response to the complaint) - his knowledge about the matter was such that he did not need this website at all. He had referenced it merely to make the point that Palazzolo's background was a subject of public interest and debate.

Let it be said: "Churnalism" as described above is not acceptable or professional journalistic practice. Yet, it does occur - the Ombudsman's office has experienced this phenomenon not so long ago

The panel took into account that Powell had impeccable sources as well as extensive experience and knowledge regarding Palazzolo's court cases.

The panel also looked closely at the statements in the article, asking ourselves whether there were any allegations that needed further verification.

The potentially most serious allegation in this regard reads: "In the 1980s, the US Federal Bureau of Investigation linked Palazzolo to laundering more than $1.5 billion in drug revenues from the so-called Pizza Connection case in which heroin was smuggled from Sicily to New York under cover of Italian restaurants."

It should be noted that:

• Osborne admitted that allegations to this effect had been made by the FBI. (The FBI's letter - mentioned above - also alluded to this.); and
• the sentence does not categorically state that Palazzolo was linked to the Pizza Connection case, it only states that the FBI linked him to the case.

This makes the sentence true (which is not to say that the sentence implies that Palazzolo was said to be guilty).

Another important sentence reads: "But law enforcement agencies around the world have sought for decades to prosecute him in connection with Mafia-related activities..."

Powell said that the FBI was looking for Palazzolo in the 1970s and again in the early 2000's.

Again, we had no reason to believe that this sentence is in dispute (Osborne certainly did not dispute it) and that it needed further verification.

A third example relates to the following statement: "Palazzolo was linked to a plan to make money by using the Ciskei for the disposal of toxic waste..."

Osborne contested this hotly. He said that not only was this information not in the public domain (as very few people would recall this), but also that this allegation was false.

When the panel asked him why it was false, Osborne admitted that there were allegations to this effect, but added that these rumours were never proved.

Again, the panel was convinced that the sentence in dispute was in no need of further verification as:

• to Powell's personal knowledge as a journalist covering the Palazzolo story at the time, there were indeed allegations to the effect that Palazzolo was linked to a plan to dump toxic waste in the Ciskei;
• the mere fact that an allegation was not proved does not mean that it is false; and
• although this allegation may not have been proven, it was not disproved either.

One last issue: The story says that Palazzolo has two birth certificates - he was born in Terrasini near Palermo on July 31, 1947, and also in Burgersdorp in the Eastern Cape on the same day.

Palazollo's birthright as an Italian citizen is confirmed in numerous court records in at least three countries and Powell testified that he himself saw the second birth certificate. No further verification was therefore needed.

These examples should suffice.

Bias

Referring to some of the above-mentioned issues, Palazzolo complained that allegations against him were - unfairly - based on opinion, yet they were presented as facts. He also said that the overall orientation of the story, considered in its context and given the headline, was "overwhelmingly biased" against him - and that he had "never been convicted in South Africa of any offence". 

The newspaper denied the accusation that it was unfair, unbalanced, untruthful or inaccurate. It stressed the fact that Powell refrained at all times from passing judgement on the guilt or otherwise of Palazzolo. It added that "Powell recorded as matters of historical fact questions that have been raised by various authorities around the world regarding Mr Palazzolo's bona fides."

In his reply to the newspaper's response Palazzolo said that the story indeed takes a view on "certain serious allegations", especially that his immigration status was "irregular at best and criminal at worst". He added that the presentation of the article alongside a "rogue's gallery" of two other "fugitives" said to be hiding out from international justice in South Africa was another proof that he was deemed guilty (by association).

He also argued that it was not true that the journalist refrained from passing judgement on his guilt. He said that the following considerations prove the newspaper's bias and passing of judgement:

• Whilst the newspaper acknowledged that SA charges of immigration fraud were withdrawn, the story goes on to report that this withdrawal was as a result of showing that "the fraud was authorized at the highest political level". He argued: "The charges of immigration fraud are thus not presented as allegations, but as fact." However, he said, the newspaper did not specify from which documents this information originated from. He added that he is not aware of any court papers that reflect such an allegation and therefore assumes that this information was gleaned from other newspaper stories; and
• The manner in which the recent Cape High Court judgement was reported (namely that the extradition request was denied on the basis that membership of and collusion with the Mafia are not crimes under SA law) was neither fair nor accurate, adding that the reportage implied that he was in fact a member of the Mafia.

At the hearing, Osborne said that bias was visible in the page layout, the content of the article and the headline. Prior to the hearing, Palazzolo also said that the story failed to reflect that his conviction was subject to review in an Italian court and that it was also subject to a pending appeal in the European Court of Human Rights. He added that a fair and balanced press account should have acknowledged these facts.

We shall discuss these matters in the same order.

The layout: The article on Palazzolo forms part of a report on four people who allegedly have found South Africa to be a haven for organized crime. The purpose of this exercise is to point out that, although "there have been some successes deporting foreign criminal kingpins...the situation has not changed much". This was reportedly due to an overstrained refugee accreditation system, a cumbersome bureaucracy and dubious agendas of politicians and security bosses.

The other three people are:

• Nigerian "exile" Henry Okha, who is facing a terrorism trial;
• Czech "fugitive" Radovan Krejčiř, who is linked to "two of the most sensational murder mysteries in South Africa in the past year"; and
• Rwandan "dissident" Faustin Kayumba Nyamwasa, who was linked to the Rwandan genocide.

Osborne said that it is not fair to group Palazzolo with these three and that it is therefore in breach of Art. 1.1 of the Press Code.

The panel kept the following undisputed facts in mind, namely that:

• an Italian court sentenced Palazzolo in absentia to nine years imprisonment;
• he was convicted in a Swiss court of drug dealing and money laundering;
• even though he is appealing, the fact that he was sentenced remains; and
• he was indicted by a Grand Jury in the US.

The content of the article: We have already discussed this matter under the heading "verification". As we did not believe that the article needed further verification, we also felt that no bias could be detected in the story itself.

However, the issue of Palazzolo's denial of the allegations should be addressed here. After the first six paragraphs, which are all providing background material on Palazzolo, the following sentence appears: "Palazzolo has persistently denied any connection with the Sicilian mafia and claims that he has been fingered on the basis of a mistaken identity."

Osborne said that this denial was not adequate, as it did not cover the reference to his false identity, the allegation of corruption regarding his stay in the Ciskei, the reference to toxic waste dumping and the allegation that he was "an asset in sanctions busting activities on behalf of the apartheid state". From these omissions, he concluded that the article was biased.

The panel noted this argument, but agreed that the sentence in dispute served adequately as a denial as it covered the essence of the story. It would be unreasonable to expect the journalist in a 400 word story to carry a denial from Palazzolo to each of the many statements that do not reflect positively on the subject. It was felt that the average reader would certainly view the denial as a persistent denial of all the allegations related to criminal activities mentioned in the article.

Osborne also argued that much of what was stated in Deputy National Director of Public Prosecutions Percy Sonn's affidavit in an earlier 2001 extradition hearing was reflected in the story, but that "the other side" was omitted. He referred to an affidavit by Palazzolo himself (an affidavit that "contradicted" that of Sonn) and to a ruling by Justice Wilfred Thring regarding passport fraud (this ruling went in favour of Palazzolo).

We were not convinced that Powell relied heavily on this affidavit. However, even if he did (over against Palazzolo's affidavit and Justice Thring's ruling) it does not point to bias. This is why: The intention of the article, together with the other three articles published in the same space, is not to present the reader with a complete or comprehensive summary of Palazzolo's life or history - if that was the intention, one may have detected bias in the content of the article. However, the intention was rather to serve as an example that no real progress has been made with regards to the deporting of foreign criminals.

The headline reads: Vito Palazzolo: Don Vito - a fancy identity and a fist full of ‘pizza' dough.

Osborne complained that the headline links Palazzolo too closely to the mafia (by using the word "Don"); he also said that the reference to "a fist full of pizza dough" implies that Palazzolo gained from the Pizza Connection.

At the hearing, the newspaper admitted that the headline was "unfortunate", and "not necessarily absolutely fitting and appropriate". The delegates also said that they were not absolutely sure what was intended by the wordplay. (Note that neither Powell nor Smith was involved in the writing of the headline.)

Although Palazzolo was found guilty of being associated with the Mafia , the reference to "Don" (a term that refers to a Mafia boss) was, in the opinion of the panel, too strong. If the word was used in inverted commas, it would have been a different matter.

The reference to "a fist full of ‘pizza' dough" clearly points to the Pizza Connection - the "pizza" is obvious; and the "dough" clearly refers to money. As Palazzolo was found guilty in an Italian court on much the same charges as the matter relating to the Pizza Connection, it is reasonable to believe that Palazzolo did gain from it - and that the newspaper was justified to use this (rather clumsy) wordplay.

The judicial review: Palazzolo said the story failed to reflect that his conviction was subject to review in an Italian court and that it was also subject to a pending appeal in the European Court of Human Rights. He complained that these omissions were unfair to him.

The newspaper noted that a "review" is a relatively mechanical process in law and that it can be instituted on either substantial or flimsy grounds; it also said that the appeal "does not speak in any way to the merits" of the case.

Palazzolo replied that:

• to the extent that a journalist relies on court papers to compile a story, s/he is obliged to report the content thereof fairly and accurately. "This includes ensuring that the report reflects the latest developments in a case, such as the fact that an appeal is pending";
• on December 16 2010 an Italian review court ruled in his favour on his application to review the conviction with respect to which his extradition was being sought. He said that, after having published and adverse report about him, the newspaper was obliged to do a follow-up as "a subsequent development casts doubt about information in the prior story". This, he said, the newspaper neglected to do; and
• it was not accurate to describe a review or appeal as a "relatively mechanical process in law".

The panel again took the intention of the article into consideration. Seen in this light, it was not necessary for Powell to include this information in the very limited space at his disposal.

FINDING

No attempt to contact him

The article did not present any new news, as the information was already in the public domain; also, Powell's sources were credible. He was therefore under no obligation to ask Palazzolo for comment. This part of the complaint is dismissed.

No verification

There is no evidence that there was a need for Powell to verify his facts any further, as the information was in the public domain and his sources were impeccable. This part of the complaint is dismissed.

Bias

The layout: Palazzolo's criminal record in Italy and Switzerland justifies the layout. This part of the complaint is dismissed.

The content of the article: The omissions in the story is not material, as the intention of the article was not to present the reader with a complete or comprehensive summary of Palazzolo's life or history, but rather to serve as an example that no real progress has been made with regards to the deporting of foreign criminals. This part of the complaint is dismissed.

The headline: As argued, the reference to "Don" is in the view of the panel too strong, taking the newspaper's creative license too far. Greater attention to the headline was indeed needed. This is in breach of Art. 5.1 of the Press Code that states: "Headlines...shall give a reasonable reflection of the contents of the report..." (If the "Don" was used in inverted commas, it would have been acceptable.)

The newspaper was justified to use the wordplay "a fist full of ‘pizza' dough". This part of the complaint is dismissed.

The judicial review: Taking the intention of the article into consideration, it was not necessary for Powell to include the information about Palazzolo's appeal in the very limited space at his disposal. This part of the complaint is dismissed.

SANCTION

The Sunday Independent is:

• cautioned for using the word "Don" in its headline;
• directed to publish a summary of this finding (beginning with the caution) in which it is free to elaborate on the parts of the complaint that were dismissed;
• directed to furnish our office with this text prior to publication; and
• directed to end off the story with the following sentence: "Visit www.presscouncil.org.za 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 reached at [email protected].

Johan Retief

Deputy Press Ombudsman

Source: www.presscouncil.org.za

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