But he said so...
Journalists are often confronted with allegations that seem impossible to prove. We simply don't have the investigative powers of the police, for example, to get tangible proof or the proverbial smoking gun from sources.
The result is that the media often rely on on-the-record and off-the-record sources to confirm allegations. It might even be the most necessary evils of journalism, but it sometimes leads journalists astray.
A recent ruling by the Press Ombud speaks to this dilemma. Sunday Sun learned "reliably" – or as it turns out, not so reliably – that actor and television presenter Pearl Thusi bought her own engagement ring and pretended it was from her fiancĂ©, sports presenter Robert Marawa.
Sunday Sun proclaimed on its front page: 'Engaged to herself! – Robert's friends say Pearl's actions smack of desperation.'
According to the paper, three reliable but anonymous sources 'confirmed' the story. The insurmountable problem for the paper was that Thusi has an invoice from a very expensive Sandton jeweller made out in the name of Marawa.
Ombud Johan Retief wasn't impressed, saying he lost track of the number of times he has repeated the statement that 'a publication is not at liberty to publish an allegation just because someone has made it'.
He is emphasising that journalists should be confident that there is at least a measure of truth to an allegation before it is reasonable and fair to publish it.
Which brings us to that uncomfortable place between a rock and a hard place. Newspapers or broadcast bulletins would be empty if we had to prove everything being attributed to people.
This was also the reason why the Supreme Court of Appeal introduced a so-called 'media defence' for defamation in the Bogoshi matter. The court accepts that it is sometimes in the public interest to publish an allegation even if the newspaper cannot prove it.
For a defamation action to succeed against a 'normal' member of the public, the defamed person has to prove that the other had an intention to defame them. They should have known the information to be false and intentionally decided to defame the person nonetheless.
For media defendants in a defamation matter, the liability has historically been much different. Even if a mass publication was under the impression that information was correct while it was false, the publication would have been held liable.
After Bogoshi, the media has a lifeline to aver that it was "reasonable" to publish the information in the public interest.
What constitutes 'reasonable' publication will differ from case to case, but here are some pointers to consider:
- Use anonymous sources with the utmost critical mindset. Remember that they may corroborate each others' false version. On the record sources are much more reliable.
- Get as much objective, hard evidence such as documentation, as you can.
- Consistently ask yourself and your mentors what else can be done to verify the veracity of claims and do them. Don't rush off to the printers or airwaves and take meticulous notes of all the steps you've taken to verify the claims.
- Always ask for comment. In the Thusi matter, she would probably have provided them with the invoice if she was afforded enough time to respond. Rather wait for the response. In the Bogoshi matter, the court held that the defamed Bogoshi could have pointed out factual inaccuracies to the newspaper when he was approached for comment, but chose not to. He ultimately lost his defamation suit.
- The more public interest is at play, the better chance that it would be reasonable to publish damning allegations. Where the content is merely of interest to the public, it will ordinarily not be reasonable to publish the allegations.
Read the full Press Ombud ruling: Pearl Thusi vs. Sunday Sun.
Herman Scholtz (BCom LLM, BPhil Journalism) is legal advisor to the National Press Club and national news editor of Rapport. Legal questions of a journalistic nature may be forwarded to firstname.lastname@example.org.