BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint
One News, Te Karere – report on death of child – footage showing child’s body – disclosure of private facts which are highly offensive and objectionable; broadcast not in the best interests of the child – child’s body shown

Findings
Privacy – deceased person not an individual under the Broadcasting Act – no uphold

Observation
Notwithstanding that the footage was not consistent with the respect normally shown in death, the unique circumstances justified the broadcast – the Authority recommends that broadcasters seek independent and relevant Maori cultural advice when dealing with important matters relating to Maori

This headnote does not form part of the decision.

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Summary

A report describing the circumstances surrounding the death of a child who had been killed by his mother’s partner was the subject of items on One News and Te Karere, broadcast on 25 June 2000 at 6.00pm and 26 June at 5.15pm respectively. The items recounted that the child had been physically abused for much of his life, and the One News item included pictures of the dead boy’s limbs and torso which showed some of the injuries he had received.

Hon Tariana Turia complained to the Broadcasting Standards Authority under s.8(1)(c) of the Broadcasting Act 1989 that the footage showing the injuries sustained by the child was "a tragic invasion into the individual privacy of his young soul, and culturally insensitive."

In its response, TVNZ noted that the photographs showing the extent of the child’s injuries had not been used gratuitously and were included as visual evidence of the extent of the brutality he had been subjected to. In addition, it noted, the boy’s face and head were not shown in death. TVNZ advised that cultural issues were taken into account when it decided to show this footage. It acknowledged that the images were highly offensive and objectionable, but contended that the visual depiction of the extent of the injuries suffered contributed to the public understanding of the issues. It declined to uphold the complaint.

For the reasons given below, the Authority declines to uphold the complaint.

Decision

The members of the Authority have viewed tapes of the items complained about and have read the correspondence which is listed in the Appendix. The Authority determines the complaint without a formal hearing. It records that it sought and received advice from Mr John Tahuparae from Te Puni Kokiri on cultural issues raised by the complaint.

A report by the Commissioner for Children examined the circumstances surrounding the violent death of a four year old child, who was killed by his mother’s partner. The report, which criticised government agencies that had responsibility for the boy’s welfare, was the subject of items on One News on 25 June and Te Karere on 26 June 2000. The One News item included photographs of the dead boy’s body which showed some of the injuries inflicted on his limbs and torso.

Hon Tariana Turia complained to the Broadcasting Standards Authority that the photographs of the dead child’s body constituted a "tragic invasion into the individual privacy of this young soul, and culturally insensitive". She complained that the broadcast breached Privacy Principles (i) and (vii). Those principles read:

(i) The protection of privacy includes protection against the public disclosure of private facts where the facts disclosed are highly offensive and objectionable to a reasonable person of ordinary sensibilities.

(vii) An individual who consents to the invasion of his or her privacy, cannot later succeed in a claim for a breach of privacy. Children’s vulnerability must be a prime concern to broadcasters. When consent is given by the child, or by a parent or someone in loco parentis, broadcasters shall satisfy themselves that the broadcast is in the best interest of the child.

She wrote:

The events surrounding death, dying and grieving are among the most sacred and important in Maori life. They are steeped with tapu (sanctity) and kawa (ceremony). The transition between death and burial encompasses a vital spiritual process to return the tangata whenua to their turangawaewae and their tupuna. Spiritually therefore, the hours immediately following death are particularly significant.

She complained that TVNZ had shown little regard for the impact the photographs would have had on the boy’s whanau and the wider community.

In its response, TVNZ advised that the item on Te Karere did not include the photographs to which the Minister objected. It provided a tape of the programme to the Authority but submitted that it was not relevant to its inquiry.

Dealing with the One News item, it noted that its focus was on the release of the report by the Commissioner for Children which criticised government agencies which had a responsibility for the child’s welfare. Regarding the short sequence of still shots showing the boy’s body, TVNZ made the following points:

•  no reference was made to the fact that a dead body was being shown
•  the shots were clinical in nature and did not show the boy’s face or head in death
•  the shots indicated the appalling injuries to the boy’s torso and limbs
•  the sequence was not used gratuitously, and was not in any sense voyeuristic
•  the shots provided the only visual evidence of the type of brutality the child was subjected to

TVNZ advised the Authority that its decision to use the sequence had not been taken lightly. It noted that it had been the subject of extended editorial discussions to which senior and experienced Maori news producers and journalists contributed.

To the Minister’s complaint that the item was culturally insensitive and invaded the privacy of the child’s soul, TVNZ advised that cultural issues had been taken into account when the decision to show the material was made. It said that it was its understanding that there was some disagreement among Maori about the screening of the sequence, and by way of illustration noted that in the same newspaper report in which the Minister had expressed her dismay, the Chief Executive of the Women’s Refuge had been quoted as saying:

The family have relinquished their rights. The shame is theirs and this is just part of it for them. Their rights become null and void when they failed to take action to protect their child.

It also reported that one of its senior Maori staff members had written:

I don’t find this story an invasion of this child’s soul, neither do I find it intrusive or insensitive, but see it as a cry from a community that adult behaviour that leads to this type of death cease, and that government offices and their departments do more to try to deter this type of behaviour. Society needs to be reminded that this type of behaviour against young children by those very people they look up to for protection and care is not acceptable.

Applying the Privacy Principles, TVNZ said it did not disagree that the pictures had disclosed facts which were "highly offensive and objectionable to a reasonable person". However, its view was that the principle was overridden by Principle (vi), which states:

(vi) Discussing the matter in the "public interest", defined as of legitimate concern or interest to the public, is a defence to an individual’s claim for privacy.

It submitted that the visual depiction of the injuries contributed to the public understanding of the child’s death, and the wider issue of violence against children.

Turning to the other aspect of the complaint, relating to the vulnerability of the child, TVNZ wrote:

With respect to the Minister it is our belief that the clinical pictures of the terrible injuries suffered by James Whakaruru were such that, by drawing them to the attention of the public, One News was acting in the best interests of all children whose lives are similarly threatened.

It submitted that principle (vi) and the Bill of Rights Act overrode the content of principle (vii). It provided the Authority with a copy of the Final Report into the child’s death which was released by the Commissioner for Children on 25 June.

In her final comment the Minister reiterated that the events surrounding death, dying and grieving were among the most sacred in Maori life. She wrote:

Responses to dying and the deceased will be determined by the customs and traditions of whanau, hapu and iwi. While the diversity and richness of different customary knowledge can be explained by local tribal leaders and elders, the primary obligations and expectations associated with dying and grieving are similar for Maori throughout Aotearoa.

She then dealt with matters raised in TVNZ’s response. First, she noted, while the report did not state that the shots were of a dead body, given that the whole item was about the child’s death, it would inevitably be assumed by viewers that they were viewing the deceased. Next, she responded to TVNZ’s point that no shots of the child’s head were shown, noting that as shots of the child in life had already been included, it would be known by viewers that the body parts shown belonged to him.

To TVNZ’s assertion that cultural issues had been taken into account when determining whether to show the offending material, the Minister said she would be interested to know what cultural issues had been taken into account, and in particular from what tribal basis such authority came. She said she presumed that cultural expertise from Ngati Kahungunu was a guiding source, given the whakapapa of the child’s whanau.

Responding to TVNZ’s reference to a newspaper article which dealt with the issue, the Minister noted that the same article included a quotation from the Chairperson of the Maori Journalists Association in which he said:

I’m a journalist at heart and I can see the reasons why TVNZ chose to run with it. They were graphic pictures which made people feel sick. But it is against our culture to show pictures of dead Maori people and at the end of the day, that’s what it was. We have to back the Maori family’s wishes or in this case the tribe’s wishes, which urged the media not to publish.

The Minister said it was of great concern to her that TVNZ had shown "blatant disregard" for the Ngati Kahungunu Iwi Incorporation by broadcasting the offending sequence. As for TVNZ’s reference to the comments by the Chief Executive of the Women’s Refuge, the Minister noted that "her concerns are predicated around a narrow concept of family which does not take cognisance of the wider whanau and hapu involvement." In particular, the Minister observed that the child’s grandmother had made a commitment to care for the child, but was not officially recognised by the state as his legal guardian. In the Minister’s view, that indicated the lack of flexibility and "perhaps indifference of the state" in looking at options for support. She suggested that the comments made by the Chief Executive of the Women’s Refuge had not taken into account the interests of the grandmother and the wider whanau and iwi.

With reference to the views of "one of TVNZ’s most senior Maori staff members" the Minister questioned the tribal context in which these comments were based. She asked what the person’s tribal authority was. She continued:

I would also be interested in the spiritual expertise and knowledge this staff member brought to bear in making the comments about such a highly specialised area as matters of the soul.

As a final comment, she wrote:

In closing I can only query that whilst TVNZ considers that Privacy Principle (vi) overrides Privacy Principle (vii) I would ask can TVNZ provide evidence to support that the offending shots did not have a negative impact on the family of James Whakaruru?

The Authority’s Findings

The Authority accepts that the broadcast of footage which showed the child’s body was gravely offensive to the child’s hapu and iwi. It sympathises with that concern.

The Authority begins its determination by noting that the decision is confined to a consideration of privacy matters only.

Section 4(1)(c) of the Broadcasting Act 1989 requires every broadcaster to maintain in its programmes and their presentation, standards which are consistent with the privacy of the individual. "Individual" is defined in the Broadcasting Amendment Act 2000 as having the same meaning as the word "individual" in the Privacy Act 1993. Section 2 of the Privacy Act interprets "individual" as meaning a natural person, other than a deceased natural person.

Not being an individual within the meaning of the Act, a deceased person therefore does not have a legal right to privacy.

Notwithstanding the statutory bar which precludes upholding a privacy complaint relating to a deceased person, the Authority took advice from Mr John Tahuparae on the cultural issues raised by this complaint before reaching a final conclusion on the matter.

The Authority acknowledges that, for Maori, responses to dying and the deceased are determined by customs and traditions of the whanau, hapu and iwi. Viewing the body of a deceased person is subject to particular protocols in keeping with the sacred nature of death in Maori life. The Authority accepts that the broadcast of pictures showing the extent of the injuries to the child’s body is not consistent with the respect which would normally be accorded a Maori person in death. However, the Authority is advised by Mr Tahuparae that, in his view, this was an occasion where, because of the unique circumstances, the wider public interest was paramount. The child had been subjected to a horrific and tragic level of abuse and neglect which led to his death. Both his family and the state agencies which had evidently failed to take responsibility for various aspects of his welfare were found wanting. The item emphasised those failures. By focussing public attention on the seriousness of the abuse the child suffered, and emphasising the community’s collective responsibility, it was Mr Tahuparae’s view that the broadcast would help ensure that other children would not be exposed to similar risk. He was emphatic that that benefit outweighed the potential violation of privacy which is the subject of this complaint.

The Authority also sought Mr Tahuparae’s advice on the Minister’s argument that cultural expertise from the child’s iwi should have been sought. The Minister questioned the expertise of a TVNZ staff member to make the assessment that the broadcast was appropriate in the circumstances. Notwithstanding the conclusion that the broadcast was justified in the circumstances, the Authority was advised that it would have been a courtesy for the broadcaster to have consulted with the child’s iwi prior to the broadcast. Mr Tahuparae also advised the Authority that it would be desirable for broadcasters to ensure that independent expert advice is available to assist when significant cultural matters require specialised response.

The Authority is satisfied that the advice it received is both valid and appropriate. It supports the recommendation that broadcasters consider seeking independent and relevant Maori cultural advice when significantly important matters relating to whanau, hapu and iwi are to be subject of such broadcasts in future.

 For the reasons given, the Authority declines to uphold the complaint.

 Signed for and on behalf of the Authority

Peter Cartwright
Chair
9 November 2000

Appendix

The following correspondence was received and considered by the Authority when it determined these complaints:

1. Hon Tariana Turia’s Complaint to the Broadcasting Standards Authority – 11 July 2000
2. TVNZ’s Response to the Privacy Complaint – 25 July 2000
3. Hon Tariana Turia’s Final Comment – 7 September 2000