In 2013, a well-known principal was accused of possessing child pornography. Although many community members knew that the accused was Neil Malherbe, Lowvelder did not publish his name in connection with the allegations until July 16, 2015, when he plead not guilty. He would eventually be found guilty.
Why did we not name him earlier?
The Criminal Procedure Act dictates that the media may only name the accused in sexual offence and extortion cases after they have plead to the charges.
In 2015, Calvin Meshack Mbuyane was suspected of stealing ammunition and altering rifles for rhino poaching. It was also alleged that he supplied poachers with guns and ammunition. Because he was not accused of a sexual offence or extortion, the paper was able to name him when he appeared in court for the first time. Lowvelder named him in a court report. Two years later, the charges against him had been withdrawn.
He was innocent, yet reports of his being charged need not be retracted.
Two weeks ago, singer Jennifer Ferguson alleged that sports mogul Danny Jordaan had raped her 24 years ago. Caxton’s community newspapers – of which Lowvelder forms part – did not identify Jordaan, although Ferguson had publicly named him on Facebook.
This has triggered some debate on when a suspect or an accused’s identity should be revealed by members of the media.
We know the basics: whatever you report on, do so in a balanced, objective way. Classify no person as a criminal until he has been convicted in court. If allegations have been made in court, report on it accurately and fairly.
But if you have overwhelming evidence stating that X is a criminal, may you name him regardless of whether he has been charged?
The short answer is yes.
However, journalists cannot merely go on a field day, naming and shaming as they please. The Press Code and the law limits the press’ right to freedom of expression. Journalists may generally not incriminate any person without having obtained their comment on the allegations against them. This is prescribed by the audi alteram partem rule, which holds that all sides to a story must be sought and included before a story is published.
There are exceptions to this rule. Due to the context within which court proceedings take place, anything that has been placed on the court record may be reported on without additional comment being sought. The same applies to reports on quasi-judicial tribunals -reportage should merely reflect what was said in a balanced way.
Police spokesmen – whom the media often get information from – are regulated by SAPS Standing Order 156. This bars them from identifying the names of suspects that have been arrested but not yet charged. It also bars them from identifying child victims of crime and victims of sexual assault.
What further complicates things is the obligation on journalists to not publish information that may influence the outcome of an ongoing trial. Doing so amounts to contempt of court. If information is published prior to a trial commencing, the publisher may be accused of obstructing justice. These are criminal offences, and may result in the journalist responsible being jailed.
That’s not the end of it – the threat of a defamation claim is a dark cloud constantly hanging over a journalist’s head.
What is defamation and when is it wrong to defame?
“Defamation is the publication of words or behaviour concerning a person that tend to injure the good name of that person…without grounds of justification.”
Let’s get one thing straight: defamation in itself is not wrong. Newspapers defame all the time – defamation happens when I expose a municipal manager’s fraudulent transactions and when I report on a criminal case. The subject of my reporting’s good name suffers as a result. Yet there is nothing wrong if I can prove that what I wrote was the truth and in the public’s interest.
Alternatively, I may prove that my report was a fair and balanced reflection of court or quasi-judicial proceedings.
Defamation is not necessarily wrong if it is contained in an honestly held opinion that pertains to current events and is free of malice.
Defamation is wrong when it is not justified. Then, the subject of your reportage may claim monetary compensation from you if your publication had caused him harm. This often comes as a result of irresponsible journalism. In 1998, the Supreme Court of Appeal added another defence to a claim of defamation.
You may evade liability by proving that you had acted reasonably in gathering and publishing a defamatory statement.
So what does identifying a suspect have to do with defamation? And where does a right to a fair trial come in?
Why is it that I do not name a suspect before he has been charged in court?
Is it because he has a right to a fair trial? No. It has nothing to do with that and that has nothing to do with me.
That right binds the state, which must see to it that he has a fair trial. This was rightly pointed out by Pierre de Vos on the Constitutionally Speaking and Daily Maverick’s web sites.
If the media paints someone as a suspect or criminal though he is never found guilty of committing a crime, he may claim remuneration from the media house involved. His right to human dignity will have been unfairly limited. A suspect’s right to a good name is protected by the law of defamation. This law deals with the media’s right to freedom of expression as well. Depending on the facts if each case, either right may be limited. It should be done justifiably.
I am trampling unjustifiably on the right to dignity of another when I link his name to a bad deed without having sufficient proof. What I write must be true and in the public interest. If I publish something I regard as true and then learn that it was never true, I must be able to prove that I had acted reasonably in ascertaining whether the information was in fact true.
Reporting on criminal allegations is a juggling act. No two scenarios are the same, and it takes great skill from journalists who seek to uncover the truth while doing so in a legally justifiable way.
That said, are we attaching too much weight to the right to dignity of suspects? Should we name and shame as a rule?