Anthony Katz vs. Cape Times

Ruling by the Press Ombud

4 April 2016

This ruling is based on the written submissions of Mr Anthony Katz and those of Aneez Salie, editor of the Cape Times newspaper.

Complaint

Katz is complaining about a text on page 8 in Cape Times of 19 February 2016, headlined Getting to the bottom of water symposium’s cancellation.

He complains that the newspaper did not:

- respect his (and a child’s) privacy;

- ensure that the personal information under its control was protected from misuse;

- protect personal information that could put him and others at risk; and

- verify its information.

The text

The text consisted of communication between Mr Michael Freeman, Israel’s Deputy Ambassador in South Africa, the newspaper and the complainant (who is a journalist at the Jewish Report).

The newspaper published an edited version of Freeman’s communication, who commented on the alleged reason for the cancellation of a symposium on water management (by the Mail & Guardian newspaper, which organized the event). This came after the Boycott, Divestment and Sanction (BDS SA), “the local arm of a US-based NGO that lobbies against Israel” (Katz’s description), claimed that the newspaper felt compelled to cancel the event due to the involvement of the Israeli ambassador.

He denied that this was true, called the BDS “radical” and a “hate movement”, and accused the organisation of lying and of previously hurting “the people of South Africa”. He also mentioned that the M&G has confirmed in writing that the BDS claim was false.

The editor cut the rest of the letter because he regarded it as “objectionable”, while the deputy editor wrote that the newspaper would appreciate it if Freeman could forward it this written confirmation.

Freeman reportedly responded that the information was not provided directly to him, but rather by Katz. The latter’s cell number then followed.

The newspaper published Katz’s correspondence, who inter alia directed the publication to a website where his story on the matter was published. He also stated that he spoke with the CEO of the M&G, who denied the BDS allegations.

The arguments

Katz complains that the Cape Times published his cell phone number, sent in a “private” e-mail to the newspaper, even while it knew that members of the public whose contact details have been published in, or passed on by, the newspaper, have been threatened. “There was no reason whatsoever to name or mention a child who may in future be threatened as a result of the publication of her mother’s name which could compromise her identity. ”

Katz says he concentrates in his complaint only on those aspects of the story that have resulted in severe prejudice – which could have been avoided had the newspaper verified the veracity of the report either with him or the management of the Mail & Guardian (whose names he provided to the Cape Times two days prior to publication).

He adds that the newspaper made no attempt to verify its information. He argues, “The political volatility between pro- and anti-Israeli lobbyists should be well-known to the Cape Times management… There is a strong feeling among the city’s many Jewish residents that the newspaper has an anti-Jewish and/or anti-Israeli agenda – and there can be no doubt that they are aware of the volatility and risks that exist by the publication of unnecessary information. They have been advised of it on several occasions. ”

Katz says that at his invitation, Freeman e-mailed the deputy editor with Katz’s name and cell phone number (saying Katz would be happy to speak to him about the matter).

He asks:

- Did Cape Times knowingly and unnecessarily place people and institutions at risk by revealing this information?

- Could the newspaper not have verified the information timeously with the contacts at their disposal?

- What made it decide to place him, a mother and a child and others mentioned at risk, publishing his telephone number, the number of the organisation for which he wrote the story, and even the Cape Town Jewish and Israeli communities at large (all garnered from a private e-mail)?

- Did the publication’s management break a long-standing journalistic tradition in an attempt to avoid admission of an error published earlier in the week?

- Does the management have an anti-Israeli and anti-Semitic agenda?

Salie says BDS SA sent Cape Times a statement on February 15, saying that a conference due to be held on February 26 had to be cancelled because the Israeli ambassador to South Africa, billed as a speaker, had been forced to withdraw due to opposition within the country to the policies and practices of the Israeli government towards Palestinians.

The editor denies that the newspaper did not verify BDS’s version – it instructed a staff reporter (Sandiso Phaliso) to check with the Israeli side “with whom we have had nothing but the most cordial and co-operative relations”.

He says Phaliso spoke to Freeman, who did not deny the BDS allegation – and the journalist duly reported that the deputy ambassador had been aware of the cancellation.

Freeman then sent Cape Times a letter addressed to the editor – a part of which was published (Salie says the remainder was not published “as it went against the grain of journalistic ethics”).

The newspaper asked him for proof that the BDS had lied (as alleged by Freeman) – which would have been required to confront the BDS. Because he did not have such information, he referred the newspaper to Katz and provided his cell number. (Freeman told the newspaper that the CEO of the M&G had confirmed to Katz that the BDS statement was false. )

Katz replied to the newspaper via e-mail, the content of which was reported.

Salie says, “When considering how to put the foregoing message across to the public, bearing in mind the very active pro-Israeli lobby, which has inundated the Cape Times with letters, complaints, insinuations, insults, threats, and an organized boycott of the Cape Times … [there] was a concern that the lobby would attack the integrity of the newspaper and hence the newspaper opted to publish the full chain of correspondence to prevent the allegation of distortion… [We] could not leave out anything, nor did we see the need, for fear of being accused or distortion. ”

The editor denies that the newspaper violated Katz’s privacy by publishing his telephone number “as the contact details of reporters are readily available on the internet”. He says making his number available provided the public with an opportunity to interrogate the information themselves “and it is thus argued that no one was placed in danger”. He adds that, in this instance, public interest was overriding privacy. “It is fair that should the journalist invite the Cape Times to call him to verify his version of the reporter the opportunity should be provided to readers as well. ”

The editor denies that Freeman conveyed any confidentiality, or an off-the-record agreement, and also denies that the Cape Times has an anti-Semitic agenda.

Salie concludes that Katz raised this matter with my office as his first port of call, which “illustrates an intention … to close the doors of communication with the Cape Times which were once open”.

In his response to the newspaper’s reply, Katz submits that the newspaper’s answer is largely irrelevant, including all its remarks about Freeman – while the complaint is between him (not the deputy ambassador) and the newspaper. He says that only three of the 22 points to which Cape Times responds are relevant to his complaint – “[And] none come close to explaining the breach of the requirements under the code. ”

He also provides me with a copy of Freeman’s letter to the editor.

In addition, he wants to know why Cape Times did not verify its information with the M&G – especially as a “non-denial” (by Freeman) cannot count for any sort of verification.

He adds that his casual note to the newspaper (“which had no relevance to the story”) was not meant for publication.

Katz argues, “[Mindful] of the volatility between the newspaper’s Jewish and Muslim readers … the editors’ actions in (i) refusing to publish Freeman’s letter and impugn his reputation as they did and (ii) publishing a thread of irrelevant correspondence – could only add flames to the fire. ”

He also says the newspaper’s statement about confidentiality (regarding Freeman) is irrelevant, as this matter is between him and Cape Times, and not between the deputy ambassador and the newspaper.

Katz says he would not have minded if the newspaper published Freeman’s telephone number, so that the public could interrogate him.

He maintains that his correspondence with the newspaper was a private journalist-to-journalist e-mail, and says he would like to see a single precedent of publication of such a nature by any publication, anywhere. He reiterates that he is particularly concerned about the privacy of “the child”.

He argues that the newspaper had approximately thirty hours between his e-mail and their publication of it – “HOW DARE THEY NOW SUGGEST THAT IT WAS I who closed any doors?”

Regarding the newspaper’s denial that it has an anti-Semitic agenda, Katz says he never made such an allegation and calls this statement an “insolent attack” on his integrity. “I have laid no complaint relating to … anti-Semitism…”

In conclusion, he asks this office to hold a hearing on the matter.

Analysis

I only hold a hearing if there are material issues which are unclear and need some discussion. In this case, such a hearing is not necessary (as I can adjudicate this matter on the written submissions, which happens in the majority of cases).

The matter of privacy (the publishing of Katz’s telephone number) is of paramount importance in his complaint, and I shall therefore address this issue first.

The question is whether Cape Times was at liberty to publish Katz’s telephone number without his consent.

The answer to this is embarrassingly easy – of course it was not. The fact that he is a journalist is not relevant at all. If the newspaper’s idea was to help the public to assert the truth for itself, it should have asked Katz for his permission first. In this case, it was not necessary to choose between the principles of public interest and privacy – Cape Times could have adhered to both.

The fact that he is a journalist and that his details should freely be available on the internet is also not an argument. If a member of the public goes so far as to try and trace him via the internet, then so be it – but the publication should not be a part of any such actions.

Besides, the fact that pro- and anti-Israeli tensions tend to erupt from time to time should have alerted Cape Times to be more circumspect in this instance.

Having said that, I am nonplussed by the following statements by Katz:

- His reference to “the child” – the text did not mention a child, let alone name her or him. He also does not elaborate on this matter in his complaint. I assume that he is talking about his own child. However, as I have said, that minor was not mentioned in the story;

- Cape Times could have published Freeman’s phone number instead – what about the latter’s privacy? Why is Katz concerned about his own privacy, but not about that of Freeman?

- His denial of questioning whether the newspaper has an anti-Israeli and anti-Semitic agenda. He has done exactly that, and quite eloquently so, as indicated above.

I am also worried about Salie’s opinion that, because Katz has raised this matter with my office as his first port of call, the latter illustrated his intention to close the doors of communication with the Cape Times (“which were once open”) – Katz had every right to contact this office directly (as hundreds of other complainants do), and this certainly does not by default mean that he has closed “the doors of communication” with the newspaper. I am also concerned about the editor’s reference to the doors “which were once open”; I trust this does not mean that the doors have now been closed from his side.

Katz’s question about the reason for the newspaper’s decision to place him at risk is not for me to decide – other than to accept Salie’s word that he did it in the pursuit of public service. The fact that the newspaper made a mistake in this regard does not necessarily point to malice.

The complainant is also correct in that Cape Times did not properly verify its information. The fact that Freeman referred Cape Times to Katz did not dissolve the newspaper from its duty to contact the primary source as well (which was the M&G). The newspaper, by its own admission, tried to verify the cancellation of the symposium (as it should have). Well, it should have asked the primary source about it.

I need to add that the:

- deputy ambassador’s letter to the newspaper, and the management’s decision to publish only a part of it, really is none of this office’s business – that decision is up to the editor alone; and

- publication of the information that Katz (“privately”) sent to the Cape Times would have been in breach of the Code of Ethics and Conduct if it contained confidential information which Katz had asked the newspaper not to publish. Katz asks for any precedent in this regard – it has once happened to me, in my capacity as the Press Ombud. I have quickly learnt that, if I want something to be and to stay private, the onus is on me to explicitly state it as such.

Finding

The fact that Cape Times has publish Katz’s cell phone number without his permission (which may have endangered his safety) is in breach of the following sections of the Code of Ethics and Conduct:

- 4. 2: “The media should take reasonable steps to ensure that the personal information under their control is protected from misuse or loss, and to prevent unauthorised access to such information”; and

- 4. 5: “Some personal information, such as addresses, may enable others to intrude on the privacy and safety of individuals who are the subject of news coverage. To minimise these risks, the media should only disclose sufficient personal information to identify the persons being reported in the news. ”

The newspaper is also in breach of Section 1. 8 of the Code in that it has not asked the primary source to verify its information. This section reads, “The media shall seek the views of the subject of critical reportage in advance of publication…”

The rest of the complaint (such as his reference to a child and a possible anti-Israeli agenda) is dismissed.

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

In determining the sanction I am mindful of Katz’s safety, which is part of his primary concern. If Cape Times publishes my full finding (as it is normally required to do) it may just spark the very flames that Katz wishes to avoid. I have therefore decided to let sleeping dogs lie (this is a cliché expression, and is not meant in a derogatory way towards any of the antagonists!)

I am also not persuaded to ask the newspaper to publish only a part of my finding.

Hence the following sanction (which I ask the newspaper not to publish, while leaving it up to Katz to do with as he pleases):

Cape Times is directed to send an official letter of apology to Katz for publishing his cell phone number without his permission (which may have endangered his safety), and for not properly verifying its information with the primary source.

The letter should be approved by me.

Cape Times is also directed to remove Katz’s telephone number from its website.

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 Khanyim@ombudsman. org. za.

Johan Retief

Press Ombud

Issued by Press Council, 4 April 2016