South African journalists have raised concerns over ethical and legal issues in their reporting of newsworthy stories in recent years. We objectively analyse the following case studies of where each publication went wrong, what was the correct action that should have been done in each case, and how their actions could have prejudiced court cases. We examine what, if any, legal recourse could have taken place in each instance.
When it comes to reporting of public figures, politicians generally should expect greater scrutiny of their private lives, more particularly where this sheds light on the exercise of their public functions. Over and above the privacy debate and what is acceptable for journalists to publish about the personal affairs of public figures, there also exists the matter of what they write and how they go about it. The Encyclopaedia of Ethics defines defamation as:
1. Words or pictures that have the effect of damaging a person’s reputation. Defamation is considered morally wrong if it unjustly has a negative effect on the esteem in which the community holds an individual. For this reason, negative claims that are nevertheless truthful, accurate or factual are not necessarily morally wrong. In the law, a distinction is sometimes made between defamation of a person’s character, through printed words or pictures known a libel, and the defamation of a person’s character through the spoken work, known as slander. (S. Terkel & Duval 1992, pg.62)
Heat Magazine and the Joost van der Westehuizen Scandal
February 2009, Heat magazine published stills from a video allegedly depicting former Springbok captain, Joost van der Westehuizen, frolicking with a former prostitute and snorting what was believed to be a street drug called Kat. The story in Heat headed “Joost in sex and drugs scandal” The magazine promised that the full video would be posted on its website in due course. Heat magazine informed its readers that it had decided to run with the story after “debating whether to destroy the tape and preserve the illusion or to make it public and reveal who Joost… really is. However, in the end there was only one decision we could take… as a public figure and a role model to tens of thousands of youngsters. Joost has a responsibility.”
The photographs that accompanied this copy were not shocking or gripping images at all. There is a simple head and torso shot, claiming to be Joost, juxtapositioned with a grainy and out of focus image of what looks like a man on the floor. Joost van der Westehuizen denied that the video is authentic and each party engaged in forensic experts to analyse the video.
This scandal gives rise to complex legal issues involving the law of defamation and privacy. If the video is indeed a fabrication, and heat had not taken reasonable steps to verify its authenticity, then Joost van der Westehuizen has a rock solid defamation and privacy claim against heat magazine, and will be entitled to recover damages to his dignity and any monetary loss that the publication may have caused. If the video is authentic, more difficult legal issues arise: was the publication in the public interest? South African law of defamation and privacy only protects statements that are published in the public interest. The difficult query in this context is how far the media may intrude into the private lives of public figures.
So even if the Joost sex and drug tape is authentic, the question is whether the public has a right to know about van der Westehuizen’s private life, and if so, how much detail it may view or read thereof. This depends on a few factors, including the extent to which van der Westehuizen markets himself to the public based on traditional family values, how much of his private life he has willingly revealed to the public, and whether the alleged activities reveal hypocrisy on his part. It’s ironic that if the tape is authentic, van der Westehuizen’s own public denials could provide the media with the public interest justification for publishing the video that they may otherwise have lacked.
President Jacob Zuma Rape Trial
One of the biggest criticisms levelled against the South African editors and journalists by the ANC has generally cantered around the perception that during the Zuma’s rape and corruption trails, media reporting extended far beyond a neutral and objective summation of the facts. Instead, it was cantered more on Zuma’s character and reputation in a way that could be portrayed as unscrupulous where the media sought to portray him in such a way that he appeared unfit for public office.
Constant and intrusive reporting on a public figure, especially a political one, is generally defended as being in the public interest. This has often resulted in politicians responding with lawsuits claiming defamation, libel or intrusions into their privacy the compromise their sense of dignity. Louw provides the rejoinder that ‘no one has successfully defined the term public interest.’ He qualifies this by saying, “there is, in the latest protection of information act, a definition of public interest which merely indicates that there are matters which are not just curiosity value but are seen to be matters which are important in the public mind… they cover virtually all aspects of public society.” (Louw, 2010)
It is safe to say that in a South African context, the conduct of the government is always within public interest. In the case of Jacob Zuma, there is a firm case in favour of the high level of media reporting, especially during his rape and corruption trails. Not only was he an aspirant president at the time, but also in both circumstances he was facing the kind of charges that could cripple his political career. At the same time, it was emerging that the ANC were trying to cover up as much of the arms deal as possible by preventing any responsible investigation by the Ethics Committee. The media were in fact performing the crucial democratic role of watchdog, and where a cover up may have been planned, open exposure and the printing of leads or last minute stories could possibly have been defended, successfully, on the grounds that they were legitimately in the public interest.
The Oscar Pistorius Murder Trail
What do the Oscar Pistorius and President Jacob Zuma cases have in common? In both cases, the courts commented on the potentially harmful impact on the administration of justice of publicity about the case.
Upon the acquittal of Zuma on the charge of rape in 2006 judge Willem van der Merwe said:
“I have no problem with fair comment and the media’s duty to keep the public informed of important matters, especially the case we are dealing with at present… What, however, is disconcerting, is the fact that some pressure groups, organisations and individuals found the accused guilty and other found him not guilty in their comments on the case, without knowing what the evidence is and long before all the evidence was presented.”
Similarly, when Oscar Pistorius made a court appearance in his case (accused of murdering his girlfriend, Reeva Steenkamp), acting chief magistrate Daniel Thulare reportedly said that it
“would appear that there is somewhat of a trail by the media houses of Mr Pistorius… It would appear some of the activities may amount, if not scandalising the court system in the republic, then to contempt of court.”
Even before Oscar Pistorius’s formal bail application, publications already splashed their pages with evidence of alleged premeditated murder of Reeva Steenkamp, such as that a bloodied cricket bat would be a key piece of evidence in the trial, that Steenkamp was wearing her nightdress when she died and that her skull had been crushed. The press has also been replete with stories of Pistorius’s “temper” and womanising ways.
Magistrate Daniel Thulare suggests that the National Prosecuting Authority (NPA) should look into the possibility that media houses may be in contempt of court. Leaking of evidentiary information is unprecedented in South African media coverage, especially in criminal cases. Charges that could possibly be brought against the media in this instance include: one is if the media houses were in breach of the sub judice rule, which means “under judgement” and speaks to the possibility that a trail can be prejudiced by publishing information that is still being deliberated on in evidence.
Emma Sadlier, media law consultant at Webber Wentzel, explained that: to prove contempt of court in this context, there must be a “real and demonstrable” possibility that the administration of justice has been hampered by the publication. Otherwise, the possibility that press freedom could be stifled exists, the court said.
The judges in South Africa are bound by their obligation to only consider the evidence presented in court. For example, three days after the murder, City Press reported that police were considering the possibility of the use of a cricket bat in the murder of Reeva Steenkamp. This allows journalists some freedom to report more widely on a case. The media can also be in breach of any court orders and can be held in contempt of court. This means that publications of allegations about a criminal case will almost never be thought to a pose a “real risk of prejudice” to an accused. However, if a publication rushes into a publication of allegations incriminating an accused and this information turns out to be untrue, the acquitted person could always sue the publication for defamation that is to question whether the accused would be able to enjoy a fair trial.
The media have to be careful and responsible, though, when choosing how far it is reasonable and permissible to go in serving the public interest before they invariably and unfairly compromise the rights of the public figures concerned. Public interest or the public’s right to be informed and the individual’s privacy right are not absolute. The media cannot on a whim launch a full scale media style offensive on a public figure to merely satisfy a possible ‘need to know’ desire of the public. Andrew Belsey (1992) puts forward the view that improper or “scandalous” behaviour by a politician for example, can never be said to be protected by a right to a privacy claim legitimately. Not only because they are public figures, but because the nature of their job affords them great power and influence and any exercising of this ‘must be open to public scrutiny.” (1992, pg 22)
That been said, the right to publish information without fear or favour, especially information that can be defended as being truthful and accurate and for the most part fair, sound and objective, is paramount to a healthy democracy