SHEILA McCABE AGAINST OTAGO DAILY TIMESIntroduction
In its edition of 5 December 2006, the Otago Daily Times (“ODT”) published an article, on the front page, under the headline “Sale of old court building dismays group”. Sheila McCabe has complained to the Council that that article was inaccurate, unbalanced and unfair and that a follow-up article published on 7 December 2006 failed to remedy the problem and was itself inaccurate, unbalanced and unfair. She also complained about the newspapers refusal to publish an apology.
The complaint is upheld on grounds that the original article was inaccurate, unbalanced and unfair. The remaining grounds of complaint are not upheld.
The article concerned the sale of an old courthouse in Otago. It reported that a community group that had been fund-raising for more than two years to buy the historic building “had its hopes dashed after the Auckland owner sold the building to another buyer.” It continued:
“The group believed it had a verbal agreement with the owner that stipulated she must inform the trust if she received another offer for the property …. Two previous offers had been made, but fell through and the trust had been informed beforehand. …. In a bitter twist, [the chairman of the group] had contacted the owner to confirm to her the trust had raised the required amount of money needed to secure the building. However, she firmly told him the building had been unconditionally sold, leaving [him] feeling disappointed and in a state of disbelief.”
Complaint to the Editor
By letter to the editor dated 6 December 2006, sent by facsimile and by email, Ms McCabe complained that the article was inaccurate and lacked fairness and balance. Her express purpose for writing was to provide the editor with the facts to “correct the errors in the article.”
In her letter, which was four pages long, Ms McCabe explained that she was the previous legal owner of the Courthouse, as trustee for a family trust. It had been on the market since April 2005. Some time in the past, before the courthouse was put on the market (late 2004 or 2005) she was contacted by the chairman of the community group. From then until the courthouse was sold in October 2006, Ms McCabe spoke with the chairman many times, including September 2005 when the group negotiated to buy the courthouse but were unable to settle the purchase. Apart from that, the group have never had any right to purchase or “buy back” the courthouse. All discussions about possible sale were conducted with Ms McCabe as trustee for the beneficial owners; her duty was to them, not the community group or the chairman.
Ms McCabe complained that the article contained two factual inaccuracies:
There was no verbal agreement to notify the community group of offers on the property. She said that there had been a temporary undertaking in August 2005 to refrain from professionally marketing the courthouse in order to give the community group the opportunity to purchase it. During the currency of that undertaking she had informed the community group that she had received an expression of interest but was not pursuing it because of the undertaking. The chairman was not informed of expressions of interest made after the undertaking expired. The courthouse was sold in October 2006, well over a year after the undertaking had expired.
Although the chairman had contacted her in October 2006, there was no mention of any particular sum having been raised, rather, he tried to negotiate a price lower than that previously discussed. In any event, she says, there was no definite commitment from the owners to sell the courthouse to the community group for a particular sum.
Ms McCabe also complained about a lack of balance and unfairness. She said that the article implied that she had not been straight forward in her dealings with the community group. In particular, that she had not honoured a verbal agreement. In light of that implication, she argued, the newspaper ought to have checked the facts or at least contacted her prior to publication for comment.
By way of remedy Ms McCabe sought “an immediate retraction of the inaccurate statements published in the article and an apology.”
In the afternoon of 6 December 2006, the editor of the ODT responded by email to Ms McCabe’s complaint:
“In response to your email and fax of this afternoon, I apologise for the newspaper not contacting you before the original article was written. My reporter should have done so. Apparently, it was difficult to ascertain your name and contact details, but that is insufficient excuse. I shall be speaking with my reporter about that oversight. I intend to publish a summary of your detailed email in tomorrow’s edition. Included below is the text of that summary. …”
There followed a seven paragraph draft article.
Ms McCabe replied that evening. She dismissed the claim that the reporter could not identify or find her, pointing out that apart from anything else the chairman knew who she was and how to contact her. She objected that the proposed follow-up article was not satisfactory and then said:
“The proposed text is also inaccurate as follows: (1) the trustees did not sell the Courthouse to a Dunedin couple; (2) the description of my discussion with [the chairman] in October 2006 is misleading – he did call me to put in an offer for the Courthouse (at $10,000 less than the money raised) but never mentioned that $160,000 had been raised; (3) your fourth paragraph does not properly explain the arrangement I had with the Heritage Trust in August 2005. The words “had never been” should read “was not.” The Courthouse sold 2 months ago. This is hardly news. The ODT needs to make a simple apology and retraction and leave it at that. If you are going to publish any “text” then it needs to be accurate and it needs to be finalised with an apology and a retraction.
The email ended with a draft apology that Ms McCabe would find acceptable.
The next day, the ODT ran a follow-up article on the front page of the Regions section headed up “No verbal pre-sale agreement: trustee”. The article was a slightly amended version of the draft sent to Ms McCabe. The opening paragraph read :
“A trustee of the private family trust that sold the former Lawrence courthouse to a Dunedin party has denied the existence of a verbal pre-sale agreement with a Lawrence community group.
The article then referred to Ms McCabe’s email the previous day, and summarised her position in relation to the alleged verbal agreement and the nature of the discussion when the chairman contacted her in October. It specifically recorded that it was “contrary to” the chairman’s account as published on 5 December. The final paragraphs read:
The ODT article implied “I was not straightforward with the heritage trust in that I did not honour a verbal agreement with the heritage trust and/or [the chairman,” Ms McCabe said. “I have not breached any agreement. I have not acted in any way dishonourably.”
On 21 December 2006 Ms McCabe complained to the Press Council.
She complained that the publication of the 5 December 2006 article breached principles 1 and 2 in that:
The article was inaccurate, unbalanced and unfair.
Although the editor apologised personally, he did not publicly apologise for the lack of fairness and balance or retract the inferences made by the original article.
The ODT did not promptly correct the error or give it fair prominence.
The follow-up article (and a further article that was not relevant to Ms McCabe’s complaint) also lacked balance and fairness and was inaccurate, which was pointed out to the editor prior to publication.
The newspaper’s position is that the follow-up article of 7 December provided balance and correction for the original article of 5 December.
The editor of the ODT notes that he received Ms McCabe’s complaint on 6 December and immediately accepted that she should have been approached for comment. He apologised immediately and told her that he would speak with the reporter concerned and publish a summary of her complaint the following day. A copy of that summary was provided. It was amended in response to points (1) and (3) in Ms McCabe’s email response (see above) but the editor did not feel that her point (2) required further action.
The editor maintains that he acted promptly and fairly in response to Ms McCabe’s complaint and published her side of the story as soon as practicable. He did not think that a public apology was required.
Argument in Reply
Ms McCabe does not accept that the follow-up article took account of her comments on the summary. First, she says that the amendment in response to point (3) still didn’t take account of the August 2005 undertaking. Second, she does not accept that her second comment ‘required no further action.’
Ms McCabe maintains that the follow-up article itself lacked balance:
“I provided details of my dealings with the [community group] which were protracted and unsatisfactory. I believe that I was extremely patient with [the chairman] and his colleagues. The ODT chose not to provide any of those details, which would have put the whole sorry affair in a completely different light”
Ms McCabe insists that she is entitled to an apology and retraction as set out in her email reply to the editor on the evening of 6 December 2006.
The editor accepts that the original article of 5 December 2006 lacked balance in breach of principle 1. Ms McCabe should have been given the opportunity to comment on the very serious allegation that she had breached a verbal agreement to sell the courthouse out from underneath the community group. That did not happen but, upon receiving Ms McCabe’s complaint, the editor immediately moved to correct the situation.
The issues are whether the second article breached principle 2, and if it did not, whether the second article relieved the newspaper from liability of its breach of principle 1. The relevant principles are 1 and 2. Principle 1 requires accuracy, fairness and balance and prohibits misrepresentation of the facts. Principle 2, relating to corrections, provides that:
“where it is established that there has been published information that is materially incorrect then the publication should promptly correct the error giving the correction fair prominence. In some circumstances it will be appropriate to offer an apology and a right of reply to an affected person or persons.”
Accuracy, Fairness, Balance: the original article
A follow up correction may in appropriate circumstances lead to the Council not upholding a complaint against an earlier inaccurate article. This will depend on the circumstances and, in particular, the materiality of the inaccuracy in the original article. Material matters will include the reason for the inaccuracy together with the effect of the inaccuracy on persons mentioned or identified from the contents of the article. If the reporter failed to adhere to good professional standards or the article casts a slur on a person who is identified or can be identified from the facts in the article, the complaint is likely to be upheld. If the inaccuracy is a simple error which does not stem from poor journalistic standards and is not material, it is more likely that the Council will not uphold the complaint.
In this case the original piece clearly cast a slur on the complainant and was published with no form of balance sought or included. In case 864, a case with very similar facts the Press Council ruled that an immediate follow-up article clarifying the position of the people concerned “does not remove the need to make reasonable efforts to check facts before publication.” The same applies in this case. For this reason, the complaint that the original article breached principle 1 is upheld.
Accuracy, Fairness Balance: the follow-up article
The follow-up article did not in itself breach principle 1. Ms McCabe would have preferred the follow-up article to put “the whole sorry affair in a completely different light.” The strict requirements of balance do not go so far. Ms McCabe’s response to the allegations made in the original article was clearly and forcefully put in the follow-up article. Most importantly, any suggestion of underhandedness was clearly denied, both in the headline and in the body of the article. Given the promptness and prominence of the follow-up within the context of ongoing coverage of the community group’s attempts to acquire the courthouse, it was enough to provide balance for the original article. The complaint that the follow-up article was also inaccurate, unfair and unbalanced is not upheld.
Adequacy of the Correction
There was no breach of principle 2.
The newspaper moved promptly to correct the lack of balance of the original article. Ms McCabe’s position was fairly and adequately presented at the first practicable opportunity in a follow-up article the next day. The front page of the Regions section was sufficiently prominent given that the story was regional and a related story was appearing later in the same section. The complaint that the ODT did not promptly correct the error or give it fair prominence is not upheld.
Principle 2 recognises that a public apology will sometimes be appropriate. In this instance, the editor considered that a follow-up article and private apology would suffice. The Press Council has agreed with the editor on the efficacy of the follow-up story. The matter of an apology is something on which reasonable people could differ. However, the Press Council is not persuaded that it was demonstrably wrong to refuse a public apology. The complaint that a public apology was required is not upheld.
The complaint is upheld on the ground that the original article of 5 December 2006 was inaccurate, unfair and lacking in balance. The remaining three grounds of complaint are not upheld.
Press Council members considering this complaint were Barry Paterson (Chairman), Aroha Beck, Ruth Buddicom, John Gardner, Penny Harding, Keith Lees, Clive Lind, Denis McLean, Alan Samson, Lynn Scott and John McClintock.