In a precedent-setting case, press ombud Johan Retief this week created a new set of rules under which the media may, under certain conditions, name alleged perpetrators of gender-based harm.
The rules amount to an ethical checklist that, if followed, will allow publications to avoid censure from the ombud for doing so.
“If these conditions are not met, the media are not at liberty to identify an alleged perpetrator,” Retief cautioned.
Previously, those accused of such violence were not named unless and until they had pleaded on criminal charges, except in extraordinary circumstances.
The new ethics rules apply only to the press ombud process, and do not affect defamation rules under which publications could still be sued by named alleged perpetrators.
Retief created the precedent in ruling on a complaint by Lwandile Fikeni, a prominent arts journalist at the University of the Witwatersrand (Wits) against university newspaper Wits Vuvuzela.
The publication had named Fikeni in an article that reported allegations by two named women who said he had physically and emotionally abused them. Fikeni said Wits Vuvuzela should withdraw the article or remove his name from its report.
In its answer to the complaint Wits Vuvuzela pointed to the social obstacles women face in stepping forward with such allegations, and said Fikeni’s prominence made the matter of public interest.
The paper also cited two articles published in the Mail & Guardian this month on the ethical considerations in such cases.
In one, Rhodes academic Anthea Garman argued that the criminal justice system’s failure of victims of gender-based harm meant the mindful naming of perpetrators by the media could be justified. In the other, Webber Wentzel media lawyer Okyerebea Ampofo-Anti said a legal restriction on naming such perpetrators only comes into force once the perpetrator is formally charged with a crime, and expires once the accused has pleaded.
Fikeni has not been charged.
“The naming of alleged sexual offenders and their identification by the media are very much in the fore of late — not only in South Africa, but also internationally,” said Retief on why a clear precedent was required.
Retief rejected the assertion that alleged perpetrators named on social media (as Fikeni was) could then be named by the media, under rules that hold the re-reporting of defamation to constitute defamation in itself.
He likewise rejected the idea that the media need to verify allegations beyond a reasonable doubt before publishing them.
The result is three requirements, all of which must be met before a person can ethically be named a perpetrator.
- The public interest must outweigh the interest of the alleged perpetrator. “This would depend on the profile the accused has in public — the higher, the greater public interest would be,” Retief said.
- The media must believe the allegation to be probably true, although it need not be true beyond a reasonable doubt.
- The allegation must be verified if possible. The more accusers there are, and the more detailed their accounts of alleged abuse, the more justified naming the alleged perpetrator would be, Retief said.
There is no requirement for accusers themselves to be named.
Based on these considerations, Retief dismissed Fikeni’s complaint.
The new rules will stand as precedent unless overturned or amended by the Press Appeals Panel, or the Press Council amends the Press Code to deal with the issue.