THIRD COMPLAINANT PROF KOBUS VAN ROOYEN SC (CHAIRPERSON) MS ZALI MBOMBO MS MODJADJI NKWANE DR LINDA VENTER

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1 CASE NUMBER: 38/2011 DATE OF HEARING: 15 NOVEMBER 2011 CHIRONGOMA TOWNSEND BRAND FIRSTCOMPLAINANT SECOND COMPLAINANT THIRD COMPLAINANT vs e.tv RESPONDENT TRIBUNAL: PROF KOBUS VAN ROOYEN SC (CHAIRPERSON) MS ZALI MBOMBO MS MODJADJI NKWANE DR LINDA VENTER Ms Chirongoma addressed the Tribunal FOR THE RESPONDENT: Mr Bop Tshweu and Mr Morapedi Philane, Regulatory Affairs Executives of e.tv. Violence Gaddafi unnecessary scenes in TV news bulletins of the attack on the Colonel found to be in conflict with Broadcasting Code- omission to advise of violent scenes also held to amount to contravention.chirongoma, Townsend & Brand vs e.tv, Case No: 38/2011 (BCTSA) SUMMARY The BCCSA received complaints relating to the broadcast on e.tv news and the e News Channel in October 2011 of scenes showing violent actions that led to the death of 1

2 Colonel Muammar Gaddafi. In certain instances an advisory as to violent scenes was also not broadcast. The following findings were made and sanctions imposed: 1. The free-to-air broadcast at 19:00 on 23 October contravened clause 3(a) of the freeto-air Code in that, in spite of the advisory, the material in the second sequence contravened the said clause. e.tv is ordered to broadcast during the first four minutes of a 19:00 Sunday evening free-to-air news broadcast, before the end of February 2012, the following statement: The Broadcasting Complaints Commission has held that this news service had on Sunday 23 October 2011 contravened the Broadcasting Code in broadcasting unnecessary detail of the attack on Colonel Gaddafi. 2. The e.tv subscription newscast at 19:00 on 20 October 2011 contravened Subscription Code clause in not adding an advisory before the images were shown. e.tv is fined R for the omission to broadcast an advisory. 3. The e.tv subscription newscast at 19:00 on Thursday 20 October also contravened clause 12 in broadcasting unnecessary scenes of violence in the second sequence of images. The Respondent is ordered to broadcast the following statement on the 19:00 e News Channel, on a Thursday before the end of February 2012, within the first four minutes thereof: The Broadcasting Complaints Commission has held that this news service had during the seven o clock Thursday evening news, on 20 October 2011, contravened the Broadcasting Code in broadcasting unnecessary detail of the attack on Colonel Gaddafi. 4. The e.tv subscription newscasts on 22 October at 06:00, 06:30, 07:00, 08:00, 08:30, 09:00, 09:30, 10:00 and 11:00 contravened clause 12 of the Subscription Broadcasting Code. The Respondent is ordered to broadcast on a Saturday morning before the end of February 2012 in four of the mentioned broadcasts within the first four minutes thereof the following statement: The Broadcasting Complaints Commission has held that this news service had on Saturday 22 October 2011 contravened the Broadcasting Code in broadcasting, in nine morning newscasts, unnecessary detail of the attack on Colonel Gaddafi. 5. The e.tv subscription broadcasts on 22 October at 09:00, 09:30, 10:00, 10:30 and 11:00 contravened clause of the Subscription Broadcasting Code for not 2

3 providing an advisory as to the headlines. e-tv is fined R5 000 for each of the five contraventions (Total R ) JUDGMENT JCW van Rooyen SC [1] The Registrar of the BCCSA received two complaints about footage shown during news programmes on the e News (subscription) channel, as well as one complaint from a viewer regarding footage on the e.tv free-to-air news channel. The footage concerned the attack on Colonel Gaddafi, Libyan leader, which had led to his death. I referred the matter to a Tribunal for a hearing and a decision. It should be pointed out that the Respondent, at the hearing on 15 November, provided the Commission with a copy of e News subscription channel footage that was broadcast on 20 October. That broadcast contained no advisory as to violence. After the Respondent was requested in December to provide the Commission with argument as to sanction, the Respondent informed the Registrar that it had erroneously failed to provide the Commission with the morning news broadcasts of Saturday 22 October, upon which Ms Chirongoma had based her complaint. The Respondent then pointed out that there was, indeed, an advisory as to violence in all these broadcasts. However, as will appear from this judgment, in five instances there was no advisory as to the headlines, which included footage of the embattled Colonel Gaddafi. This omission on the part of the Respondent led to the Commission having had to hold an additional meeting on 10 January [2] The complaints read as follows: Complainant Chirongoma relating to e-news subscription channel 22 October: Since the death of Gaddafi was announced there have been images of his head all over the newspapers and TV, but I was utterly outraged this morning when at 7.30am and every time e.tv news channel 403 ran its headlines, they showed the moments before Gaddafi's death, where he was surrounded by lots of men and was clearly being beaten and dragged. The images were shown with no prior warning to viewers and repeatedly until at least 12 noon. I know they have no control over the way he died, but how about his right to dignity. Regardless of what he did or did not do, they have no right to show those images. He is someone's loved one, believe it or not. e.tv's right to freedom of expression should not trump Gaddafi's right to dignity and privacy. They have stripped him of his humanity and where is their humanity when they use the death of a man to increase their rating. I saw 3

4 my father's eyes, a man pleading for his life and no one and I mean no one would want their father's last minutes on show for the whole world, entertainment rerun over and over. The anguish!!! Fines are merely slaps on the wrist for media like e.tv. It means nothing to them. I strongly condemn e.tv and the manner in which it has treated a fellow human being's final moments and their lack of respect for his family and those who cared about him. Complainant Townsend relating to e.tv (subscription) news channel 20 October :00 and repeated: I register my unhappiness at the display of the clip of the murder of Gaddafi on ETV news channels and other channels. ETV at no stage when I was watching warned viewers about the graphic nature of this shot. The fact that he was beaten during the clip and then shown dead was degrading to all persons. The value judgment of his life is not ours to do. The person on the clip remains a person. As a person, I would not want my own murder shown to others. Equally concerning is the display of this clip before watershed time. Please investigate. My complaint is against showing the clip of Gaddafi being beaten and killed. There is no possible justification of showing a person being killed on television. This was a failure in discretion. By pushing this boundary, we have diminished ourselves. A person is a person. This murder of a person remains an on screen murder. We should not have to decide if we want to watch this or not. It doesn t enhance the journalistic value of the story, even if blood leads. It was not necessary and we are all diminished as humans. This was real life, not some movie or computer game. ETV NEWSCHANNEL can provide you with exactly what was shown. A second complaint would be that this was shown without any warnings that the images were graphic. I did not see or hear warnings. Third complaint that it was shown before 9pm at a time when children could have been watching. Complainant Brand relating to e.tv 19:00 23 October 2011 free-to-air: Yesterday, Sunday 23 rd October, I watched the 19h00 e.tv news broadcast. At one point viewers were told, that the pictures to follow might offend sensitive viewers and then followed the brutalizing of Gaddafi, his execution and images of the perpetrators, obviously depicted as the heroes of the moment. I would like to complain about these pictures for the following reason: I expect young people to watch the news and be educated; the reference to sensitive viewers does not carry any age-restriction, and many young people will (have) watched these images. The sensitive viewers warning did in no ways do justice to the images that were to follow. The images shown could have been taken from some brutal movie, that would as such in all probability have carried an 18-years age-restriction for violence. As they were in the news and as they were real, they were even more powerful and gruesome than if it had been only a movie. Our constitution has outlawed capital punishment as such any visuals depicting any form of execution should be banned from public viewing. In the case referred to it would have been easy for an uncritical viewer to accept that this public execution was legal and government sanctioned. The morality of showing visuals of this kind needs to be questioned on more levels, than those mentioned above: I know about the atrocities that Gaddafi perpetrated or instigated and I deplore them; and still he remains to be a human being, whose dignity has been violated when he was treated less than an animal. I question the morality of visuals that insipidly and indirectly justify gross violence and vigilantism. To me the message portrayed as news was: If it is a Gaddafi (or anyone whom I perceive to be as evil as he was) the public has the right and good cause to execute such a person. This message will resonate well with many criminals in our country, who attach little value to human life. And lastly, I find no justification for depicting the perpetrators of this execution as heroes, who liberated the world from an evil person; quite rightly our president said, that after Gaddafi was captured, he should have been brought before a court of law. 4

5 [3] Further comment from Complainant Brand read as follows: I have read the broadcaster s response; it has tried to reduce my complaint to one issue only. E.tv has a responsibility to the broader public in terms of what it shows it cannot compare itself to whatever people willingly download from the internet. It also has a responsibility towards the younger generation a short reference that visuals MIGHT upset sensitive viewers does not do justice to this responsibility. [4] The Respondent replied as follows: Complaints re: Gaddafi murder clip This letter is in response to complaints about a clip on Gaddafi s murder. The Complainants allege Gaddafi s dignity was violated by the clip of his murder. Flighting the images of dead bodies or wounded during the war is always a difficult editorial decision. Where necessary viewers are usually warned about offensive visuals. Our role as journalists is to show the true images of what happens in any situation. To sanitise the truth is to fail in our duty to inform the public. Enews refrained from using any possible graphic images of the events surrounding his capture. We believe putting the blame on us is unfair as even more gruesome pictures were already in public domain. The images of his capture and murder taken on mobile phones were already circulating around the world, contradicting statements issued by the National Transitional Council to the world media. Putting the blame on us is unfair as these images were not broadcast gratuitously but to put matters to proper scrutiny. e.tv does not believe that the depiction of capture and injuries sustained in a war situation can be banned; it can only be treated in the most dignified way possible under the circumstances. We believe that this was done in a broadcast, given the fact that no close up of gun shots wounds or actual beatings took place. We submit that a warning was issued prior to the broadcast of the footage. In the result, there was no contravention of the broadcasting code. Our role as journalists is to show the true images of what happens in any situation. To sanitise the truth is to fail in our duty to inform the public. E-news refrained from using any possible graphic images of the events surrounding his capture. The Brand complaint: 23 October 19:00 e-news (free-to-air) [5] The BCCSA Code for free-to-air broadcasters provides as follows in connection with the broadcasting of scenes of violence: 3. Violence Broadcasting service licensees must not broadcast material which, judged within context (a) contains violence which does not play an integral role in developing the plot, character or theme of the material as a whole; or (b) sanctions, promotes or glamorises violence or unlawful conduct. (emphasis added) 4. (1) Broadcasting service licensees must not broadcast material which, judged within context, sanctions, promotes or glamorises violence or unlawful conduct based on race, national or ethnic origin, colour, religion, gender, sexual orientation, age, or mental or physical disability. (emphasis added) 5

6 5. Exclusions Clauses 3 and 4 do not apply to: (1) a broadcast which, judged within context, amounts to a bona fide scientific, documentary, dramatic, artistic or religious broadcast; (2) a broadcast which amounts to a discussion, argument or opinion on a matter pertaining to religion, belief or conscience; or (3) a broadcast which amounts to a bona fide discussion, argument or opinion on a matter of public interest. Clause 11(8), which deals with news, provides as follows: Broadcasting service licensees must advise viewers in advance of scenes or reporting of extraordinary violence, or graphic reporting on delicate subject-matter such as sexual assault or court action related to sexual crimes, particularly during afternoon or early evening newscasts and updates. (emphasis added) [6] It should be mentioned that, throughout this matter, the Tribunal bore in mind the fact that any finding of a contravention would limit the right to freedom of expression, and that freedom of expression should be granted a generous application. 1 Moreover, the Tribunal was acutely aware of the possibility that the right of the public to be informed might be limited unreasonably if a finding were to be made against e.tv. On the other hand, all rights are limited within the sphere of section 36 of the Constitution of the RSA and, of course, by the Broadcasting Code, which the Respondent has agreed to by accepting the BCCSA jurisdiction as a member of the National Association of Broadcasters. We are satisfied that the Respondent was given ample opportunity to address the main issues in all the broadcasts complained of, both in its response and at the hearing of the matter, i.e. the content of the scenes as such, as well as the matter of the broadcast of an advisory. The main defence in the case of the content is that the material was already in the public domain, and that the Respondent had the right to keep its viewers informed as to what was described as war scenes. The italicised parts of the following paragraphs also emphasise other aspects of the defence. Our role as journalists is to show the true images of what happens in any situation. To sanitise the truth is to fail in our duty to inform the public. E-news refrained from using any possible graphic images of the events surrounding his capture. 1 See the references to the relevant authorities in National Commissioner and Another v e.tv, Case No 05/2010 6

7 Putting the blame on us is unfair as these images were not broadcast gratuitously but to put matters to proper scrutiny.e.tv does not believe that the depiction of capture and injuries sustained in a war situation can be banned; it can only be treated in the most dignified way possible under the circumstances. We believe that this was done in [the] broadcast[s], given the fact that no close up of gun shots wounds or actual beatings took place. We submit that a warning was issued prior to the broadcast of the footage. In the result, there was no contravention of the Broadcasting Code [7] It is common cause that e.tv did indeed advise viewers, on its free-to-air channel on 23 October, that some scenes in the news programme might be disturbing to sensitive viewers. The question is, however, whether this warning is a defence against the repeated screening of images of the bloodied face of an apparently severely injured Colonel Gaddafi, during what may be described as the attack that ultimately led to his being shot dead. If material is prohibited by the Code, an advisory per se would not be a defence. The approach of the Respondent, which seems to amount to its having carte blanche in regard to war scenes, is unfounded in law. All rights including Constitutional rights are limited, and have to be balanced against other rights. It should further be borne in mind that the present complaint is limited to the broadcast on the evening of 23 October 2011, and that the first broadcast on the free-to-air channel took place on the evening of 20 October i.e. the day on which it was first announced on the e News channel that Colonel Gaddafi had been killed. The broadcast on 23 October, however, differs from the broadcast on 20 October in that it was stated that new mobile images on the killing had come to light. The 20 October broadcast on the free-to-air channel was, however, not complained about. A complaint was, however, lodged in regard to the 19:00 e News subscription channel broadcast. [8] Clause 3(a) of the free-to-air Code prohibits the broadcast of material containing scenes of violence where such scenes do not play an integral role in developing the plot, character or theme of the material as a whole. The previous Code used the word gratuitous, 2 but this was replaced with integral in the new Code. Integral, according to the Shorter Oxford English Dictionary, means, inter alia necessary for the completeness of the whole. The other meanings provided are basically the same. 3 The material in question formed part of a news programme. The scenes in the broadcast complained of were said to contain new mobile phone film material which 2 Cf Monitoring and Complaints Unit (MCU of ICASA) & Others v SABC 2 (Case 39/2004). 3 Gratuitous would not seem to have a meaning that is that different from integral ( done, made, adopted, or assumed without any good ground or reason; uncalled for; unjustifiable ). 7

8 had become available subsequent to the news of Colonel Gaddafi s death being broadcast on the previous three days. 4 Although it is true that the shots shown on 23 October amounted to new material for e.tv news (free-to-air), the question that arises is whether the material served any purpose in informing the public. Of course, there is nothing wrong in broadcasting additional related (even meaningless) material, but combined with violence, the Code could be contravened. We will accept in favour of e.tv, without deciding the point, that it was permissible to show one shot of the newly available material. However, the repeated screening of shots of the bloodied face and, at times, bloodied face and torso of Colonel Gaddafi, combined with the sounds of screaming and the obvious attack being made on him, cannot be regarded as being integral to the news item. The repeated screening of the obviously violent struggle, and repeated screening of images of the obviously wounded and bloodied face and torso of Colonel Gaddafi, is unnecessary in supporting the main news item, namely, that Colonel Gaddafi had been attacked and killed by revolutionary forces apparently loyal to the National Transitional Council. Of course, it was news that further material had come to light regarding the attack, struggle and eventual killing of the Colonel, but it would have been sufficient 5 to show only one new shot of his bloodied face and torso and then to cut to jubilant scenes of his attackers and their praising of the alleged killer. The bounds of necessity (as implied by the word integral ) were grossly overstepped in the broadcast. The commentary accompanying the graphic images did nothing to project the images in such a way that the images might be perceived as amounting to material which would bring viewers closer to the truth. [9] In argument on behalf of e.tv, it was claimed that e.tv has a duty to inform the public of what happened, and that the photographic material was already in the public domain. In our view, news does not necessarily require or depend on repetition, unless the repetition is necessary for a better understanding of the news. News, according to the Concise Oxford English Dictionary, means newly received or noteworthy information, especially about recent events. In the e.tv news programme, the newly received aspect of the news item was lost in the very repetition thereof. There was, 4 See the material discussed hereunder in regard to the subscription broadcast the previous day. 5 Subject to what was said earlier: We will accept in favour of e.tv, without deciding the point, that it was acceptable to show one shot of the newly available material. 8

9 indeed, no need to repeat graphic images of the embattled Colonel Gaddafi s bloodied face and torso as part of the news item on the rebel attack. And while the images of the attack were not necessarily clear and detailed in all instances, they however formed part of the struggle that had obviously led up to graphic scenes of the wounded Libyan leader as these were repeatedly shown in the news report. The fact that the Colonel was accused as having been a tyrant who had also readily had his opponents killed in various ways, does not justify the broadcast of the brutal and barbarous attack on him. [10] Furthermore, the public interest defence 6 would not, in our view, save the footage. While it may have been interesting to certain sectors of the public 7 to view repeated shots of the bloodied face and torso of Colonel Gaddafi, the repeated screening of these shots served no purpose in the public interest by, for example, safeguarding or promoting the general welfare or common well-being of South African viewers; the repeated screening of the images did not add to the information conveyed by the news item, but instead fed off and fed into what may be called a sensational interest in the event. In this regard, reference may be made to the European Court of Human Rights judgment in Jersild v Denmark. 8 In this matter, it was held that the conviction of Danish television journalist Jens Olaf Jersild by a Danish Court was in conflict with the European Convention of Human Rights. Jersild had produced a two-minute news item that was condensed from a longer interview with a group of people (calling themselves the Greenjackets ) who had expressed racist views about immigrants. The interviewees had, in the broadcast, used racially derogatory language with regard 6 See clause 5(3) of the Code. 7 See Financial Mail (Pty) Ltd and Others v Sage Holdings Ltd and Another 1993 (2) SA 451 (A) Corbett CJ said in delivering the majority judgment (at 464C-D): (1) There is a wide difference between what is interesting to the public and what it is in the public interest to make known...(2) The media have a private interest of their own in publishing what appeals to the public and may increase their circulation or the numbers of their viewers or listeners; and they are peculiarly vulnerable to the error of confusing the public interest with their own interest... Quoted with approval by Hoexter JA in Neethling v Du Preez; Neethling v The Weekly Mail 1994 (1) SA 708 (A) at 779 and Hefer JA in National Media Ltd v Bogoshi & Others 1998(4) SA 1196(SCA) at 1212 where reference is made to Asser Handleiding tot de Beoefening van het Needelands Burgerlijk Recht (9th Ed vol III at 224 para 238: Een belangrijke grond ter rechtvaardiging van de uitlatingen, waarop in zaken van aantasting van eer en goede naam veelvuldig een beroep wordt gedaan, is het algemeen belang.... In de praktijk wordt zij vooral ingeroepen ter zake van uitlatingen die via de pers en radio en televisie worden verspreid: het algemeen belang is hier uiteraard gelegen in de, door Grondwet en verdragen gewaarborgde, vrijheid van meningsuiting die de pers in staat stelt al dan niet vermeende misstanden aan de kaak te stellen. Met name - doch niet alléén - in deze gevallen berust het oordeel omtrent de onrechtmatigheid op een afweging van belangen, waarvan de uitkomst afhankelijk is van alle omstandigheden van het geval. (italics added) 8 Application 15890/89, decided 23 September

10 to immigrants from Africa, and had boasted about their criminal activities directed at such groups. The European Court stated the following: The Court reiterates that freedom of expression constitutes one of the essential foundations of a democratic society and that the safeguards to be afforded to the press are of particular importance Whilst the press must not overstep the bounds set, inter alia, in the interest of "the protection of the reputation or rights of others", it is nevertheless incumbent on it to impart information and ideas of public interest. Not only does the press have the task of imparting such information and ideas: the public also has a right to receive them. Were it otherwise, the press would be unable to play its vital role of "public watchdog" Although formulated primarily with regard to the print media, these principles doubtless apply also to the audiovisual media. In the e.tv case, the repeated screening of shots of the bloodied face, or face and torso, of Colonel Gaddafi did not impart (necessary) information and ideas of public interest in terms of the Jersild judgment. We have also not been persuaded as to why the public has a right to see such images even if they are new. The public watchdog duty of the media has no relevance in the present context. 9 It is irrelevant that the images were already in the public domain. While images might indeed be in the public domain, this does not mean that the protection of the rights of television viewers are thereby lost. The complaint concerning the e.tv news (19:00) free-to-air broadcast on the evening of 23 October is, accordingly, upheld. [11] In the light of the conclusion that was reached, it is unnecessary to deal with the argument that the scenes of extralegal killing promoted violence, or at least the notion of taking the law into one s own hands in similar circumstances. Subscription Broadcast News on 20 and 22 October ( Chirongoma complaint and Townsend complaint ) [12] The first two complaints deal with e News as broadcast on the subscription channel. The 19:00 broadcast on 20 October, contained no advisory. Mr. Townsend s complaint deals with the broadcast of 20 October. Ms Chirongoma s complaint deals with the 22 October news broadcasts between 06:00 to 11:00. The latter indeed contained a warning in the body of the news in each of the broadcasts. Ms 9 See the italicised words in the passage quoted from Asser in the previous footnote. 10

11 Chirongoma, however, also specifically refers to the headlines. We have viewed copies of all the newscasts from 06:00 to 11:00 of the morning of 22 October that were made available to us. Five of the newscasts (at 09:00, 09:30, 10:00 10:30 and 11:00) were introduced by headline footage showing the struggle with Colonel Gaddafi. As to the headlines, there was no prior advisory for sensitive viewers. Those watching the introduction to the news were simply, and without warning, exposed to mobile phone footage that had been distributed soon after the death of Colonel Gaddafi. Here, again, images of the bloodied face and torso of Colonel Gaddafi were shown. [13] The Code for Subscription Broadcasters provides as follows: 12. A television or composite subscription broadcasting service licensee, wherever practicable, must avoid broadcasting programming material, including promotional material, which is unsuitable for children and/or contains nudity, explicit sexual conduct, violence or offensive language before the watershed period Licensees must advise (news) viewers in advance of scenes or reporting of extraordinary violence, or graphic reporting on delicate subject-matter such as sexual assault or court action related to sexual crimes, particularly during afternoon or early evening newscasts and updates when children would probably be in the audience. (emphasis added) We have no doubt that the headline material shown in five broadcasts on the e News subscription channel on Saturday morning 22 October required the kind of advisory referred to in clause No such advisory was given at the time, however. Although clause states particularly during afternoon or early evening broadcasts and updates when children would probably be in the audience, this rule does not exonerate a subscription broadcaster from advising viewers wherever necessary, at whatever time of the day or night, regarding scenes of extraordinary violence. We have no doubt that the bloody shots of Colonel Gaddafi in the headline, combined with the blurred but obviously violent scenes that appeared to show the actions of the attackers, required such an advisory. Clearly, the violence amounted to extraordinary violence: the scenes were not fictional, but formed part of a real-life, violent attack on a human being, which explicitly showed the bloody effects of the attack. It is true that the headline only lasted a few seconds, but there is no justification for suddenly, out of the blue as it were, confronting viewers with this introductory headline. The headline in all five broadcasts was the same or substantially the same. In each instance, no advisory was given. 11

12 [14] In so far as the Townsend complaint is concerned, relating to the e News Channel broadcast on 20 October 2011, no advisory was included in the 19:00 subscription channel newscast, as provided to us by the Respondent. The scenes shown during the newscast required an advisory. What was said about the extraordinary nature of the material broadcast, also applies here. [15] In so far as clause 12 of the Subscription Code is concerned, we are prepared to accept for purposes of this judgment, which deals with news, that the word integral should be read into clause 12, otherwise different standards would apply to subscription news and free-to-air news. What was said above in that regard also applies here. The scenes on both 20 and 22 October were shown before the subscription watershed at 20:00. We have no doubt that the repeated screening of the blurred but obviously violent scenes, which also repeatedly and clearly showed the bloody effects of violence on the victim, were in contravention of clause 12. It is clear that the involvement of children is not the only test ( and/or creating a category on its own). The words in so far as is practicable do not assist the broadcaster, since the final version of the news is determined in South Africa, and the repeated scenes of the bloodied face and torso of the Colonel should have been left out in the light of the requirements of the Code. In so far as the public interest defence is concerned which we accept, in favour of the Respondent, is also applicable in the case of a subscription channel the same conclusions are reached as were reached above in regard to the broadcast on the free-to-air channel. Watching a person being killed in real life serves no purpose that might be elevated to revealing, for example, misconduct that might in some way serve the public interest in South Africa. To sum up: the first scene of the attack (as shown in the body of the newscast on 22 October) is accepted, in favour of the Respondent, as not having been in contravention of the Code. It could be argued that it countered the claims that Gaddafi had been killed in a shoot-out. The second scene (where Gaddafi is shown to wipe his bloodied face) has no function which might be supported by any of the defences referred to above. The latter conclusion also applies to the five cases where the headline included scenes of the attack. The commentary, which saved the first scene, was not present here. As to the Townsend complaint concerning the 19:00 news on 20 October, we found hardly any dialogue at all that was directly supported by the footage. However, we will accept in favour of 12

13 the broadcaster that one shot of the bloodied face, or bloodied face and torso, of Colonel Gaddafi would have been in order. It was unnecessary to show repeated shots of this material, however, and so this screening falls into the same category as the further shots referred to in the Chirongama complaint. Also, as is the case in the Chirongama matter, the defences do not apply here either. Sanction [16] E.tv and the complainants were requested to provide the Tribunal with written argument as to an appropriate sanction. Clause 14 of the Constitution of the BCCSA sets out the following possible sanctions: reprimand any respondent adjudged to have been guilty of an infringement of the Code; direct that a correction and/or a summary of the findings of the Adjudication Committee be broadcast by the respondent in such manner as may be determined by the Committee; direct that a respondent grant reasonable access in its broadcasts on an equal opportunity basis to a political party, organisation or movement or candidate in a case where clause 37 of the Code was not complied with; the same rule shall mutatis mutandis apply in the case of clause 36 impose a fine not exceeding R50,000 upon any respondent adjudged to have infringed the Code, whereupon the fine so imposed shall be a debt due to the BCCSA and recoverable as such; in its reasons for its findings, record criticism of the conduct of the complainant in relation to the complaint, where such criticism is in its view warranted; make any supplementary or ancillary orders or directions that it may consider necessary for carrying into effect orders of directives made in terms of this clause and, more particularly, give directions as to the broadcasting of its findings [17] E.tv responded as follows as to sanction: 1. We took a conscious decision to provide warnings for the news broadcasts surrounding the killing of Muammar Gaddafi. e.tv was unaware that such warnings were required for headlines and this is without precedent as set out below. 2. We were under the bona fide belief that warnings would be adequate for the broadcast of the impugned visuals. This belief is based on past practice and precedent. 3. Providing warnings in the headlines is difficult as headlines are usually just one-liners. The standard practice has been to provide warnings for news items in the bulletin. As far as we are aware, providing warnings in headlines is without precedent in BCCSA decisions. In the circumstances, we can only learn from this experience going forward. 4. In instances where warnings were not given, it was an anchor error as warnings were scripted for all bulletins. For this e.tv wishes to apologise. 13

14 In the result, we submit that a reprimand is an appropriate sanction. [18] The Complainants submission ranged from ordering a fine which should be donated to a fund to an order that e-tv broadcast the rules in regard to advisories and related rules during the news several times. Both these approached are not supported by the Rules, which set out specific sanctions, including a fine and a broadcast announcing the decision of the BCCSA. [19] It is true that the BCCSA has never before dealt with headlines to news in any of its judgments. There is indeed no precedent in the findings of the BCCSA. That there has been no precedent is, of course, no reason for not abiding by the rule in clause It is patently clear that headlines form part of the news and that clause is applicable. Even if the material did not form part of the news and had been regarded as promotional material, its broadcast would have been prohibited in terms of clause 12. Probably the reference to the absence of precedent should be understood to mean that there had not been, what may be termed, malice aforethought in omitting to include an advisory. The argument that it is difficult to provide warnings in headlines is self-destructive: why not, if it is difficult, not include it? The headline, which was identical (or at least essentially identical) in all four cases, consisted of mobile phone (video) footage with accompanying sounds. It was thrust upon viewers without any warning. A conscious decision must have been taken to use the material as an introduction to the body of the news which was to follow. This conclusion is supported by the fact that the preceding five newscasts from 06:00 did not include this headline. Even if we accept, without deciding, that the Respondent did not act with malice aforethought, it was negligent. The negligence, to our minds, amounted to gross negligence. To simply include the terribly harsh scenes, albeit only for a few seconds, was ill-considered in the extreme. A mere reprimand would not suffice. A fine of R5 000 for each of the five contraventions is imposed. In so far as the body of the news is concerned, the advisory is regarded as extenuating. The Respondent must broadcast the decision of the BCCSA in broadcasts on a Saturday, as indicated in the order. [20] In so far as the contraventions in clause 12 as to the body of the news on the subscription news channel at 19:00 on 20 October is concerned, the Respondent was grossly negligent in not having broadcast any advisory and also for broadcasting unnecessary images of the attack. An announcement of the decision of the BCCSA is appropriate in so far as the unnecessary images are concerned. The omission to broadcast an advisory is regarded as ill-considered and grossly negligent. A fine of R for not having included an advisory will be ordered. This fine is more than the fine which was imposed in regard to the headlines, since much more violence was shown in the body of the news than in the headlines. Where two contraventions were found in one newscast they were regarded as sufficiently separate to justify two findings and two sanctions. 14

15 [21] The following findings are made and sanctions are imposed: 1. The free-to-air broadcast at 19:00 on 23 October contravened clause 3(a) of the free-to-air Code in that, in spite of the advisory, the material in the second sequence contravened the said clause. e.tv is ordered to broadcast during the first four minutes of a 19:00 Sunday evening free-to-air news broadcast, before the end of February 2012, the following statement: The Broadcasting Complaints Commission has held that this news service had on Sunday 23 October 2011 contravened the Broadcasting Code in broadcasting unnecessary detail of the attack on Colonel Gaddafi. 2. The e.tv subscription newscast at 19:00 on 20 October 2011 contravened Subscription Code clause in not adding an advisory before the images were shown. e.tv is fined R for the omission to broadcast an advisory. 3. The e.tv subscription newscast at 19:00 on Thursday 20 October also contravened clause 12 in broadcasting unnecessary scenes of violence in the second sequence of images. The Respondent is ordered to broadcast the following statement on the 19:00 e News Channel on a Thursday before the end of February 2012 within the first four minutes thereof: The Broadcasting Complaints Commission has held that this news service had during the seven o clock Thursday evening news, on 20 October 2011, contravened the Broadcasting Code in broadcasting unnecessary detail of the attack on Colonel Gaddafi. 4. The e.tv subscription newscasts on 22 October at 06:00, 06:30, 07:00, 08:00, 08:30, 09:00, 09:30, 10:00 and 11:00 contravened clause 12 of the Subscription Broadcasting Code. The Respondent is ordered to broadcast on a Saturday morning before the end of February 2012 in four of the mentioned broadcasts within the first four minutes thereof the following statement: The Broadcasting Complaints Commission has held that this news service had on Saturday 22 October 2011 contravened the Broadcasting Code in broadcasting, in nine morning newscasts, unnecessary detail of the attack on Colonel Gaddafi. 5. The e.tv subscription broadcasts on 22 October at 09:00, 09:30, 10:00, 10:30 and 11:00 contravened clause of the Subscription Broadcasting Code for 15

16 not providing an advisory as to the headlines. e.tv is fined R5 000 for each of the five contraventions (Total: R25000). The fines (total R35000) must be paid to the BCCSA on or before 28 February JCW VAN ROOYEN SC CHAIRPERSON 2 February 2012 Commissioners Mbombo, Nkwane and Venter concurred with the judgment of the Chairperson 16