BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
One News – item covered the murder trial of Clayton Weatherston – contained footage of Mr Weatherston in court explaining how his relationship with Ms Elliott began – allegedly in breach of good taste and decency and privacy

Findings
Standard 1 (good taste and decency) – details of relationship were not sufficiently explicit to require a warning – high degree of public interest – contextual factors – not upheld

Standard 3 (privacy) – deceased person not an “individual” for the purposes of Broadcasting Act 1989 – privacy standard does not apply to deceased persons – not upheld

This headnote does not form part of the decision.

Broadcast

[1]   An item on One News, broadcast at 6pm on Thursday 9 July 2009, covered the day’s events at the trial of Clayton Weatherston, who was accused of murdering Sophie Elliott. The presenters introduced the item by saying:

“Flirty” and “forward”, two words a man who’s admitted killing his ex-girlfriend has used to describe her. Clayton Weatherston’s accused of murdering Sophie Elliott by stabbing her over 200 times. He spent a second day on the stand giving evidence in his own defence.

[2]   The item crossed over to a reporter who said:

“Fragile in the face of challenge”, “self-indulgent”, “a hard person to be in a relationship”, those are some of the phrases Clayton Weatherston used to describe himself today. He also described in detail his relationship with Sophie Elliott. He’s told his lawyers he remembers that relationship every day, and it is that relationship that they argue caused her death.

[3]   Footage of Mr Weatherston giving evidence was shown in which he described Ms Elliott’s personality and how their relationship had formed. His description included some details about their sexual relationship and comment that she used to talk to him about her past partners. Mr Weatherston also stated that he had visited a doctor to talk about his relationship with Ms Elliott and that he had looked for information about personality disorders on the internet.

[4]   The item ended with the presenter and the reporter discussing that Mr Weatherston was taking an unusually long time to give his evidence.

Complaint

[5]   John Oswald made a formal complaint to Television New Zealand Ltd, the broadcaster, alleging that the item had breached broadcasting standards.

[6]   The complainant argued that the item had shown a “brutal and sadistic killer who was allowed air time to calmly describe his sexual relationship with the young female university student he had stabbed over 200 times”. He considered that the information contained in the item breached Ms Elliott’s privacy and had disregarded standards of common decency.

Standards

[7]   TVNZ assessed the complaint under Standards 1 and 3 and guidelines 1a and 1b of the Free-to-Air Television Code of Broadcasting Practice. These provide:

Standard 1 Good Taste and Decency

Broadcasters should observe standards of good taste and decency.

Guidelines

1a Broadcasters will take into account current norms of good taste and decency bearing in mind the context in which any content occurs and the wider context of the broadcast e.g. programme classification, target audience, type of programme and use of warnings etc.

1b The use of visual and verbal warnings should be considered when content is likely to disturb or offend a significant number of viewers except in the case of news and current affairs, where verbal warnings only will be considered. Warnings should be specific in nature, while avoiding detail which may itself distress or offend viewers.

Standard 3 Privacy

Broadcasters should maintain standards consistent with the privacy of the individual.

Broadcaster's Response to the Complainant

[8]   TVNZ stated that One News had an adult target audience and noted that the Authority had previously found that unsupervised young children were unlikely to watch news programmes.

[9]   The broadcaster said that Mr Weatherston’s case had generated a large amount of public interest and had been widely reported by all media throughout the duration of his trial. It contended that it was “not alone in its reporting of the details of Clayton Weatherston’s testimony and defence”.

[10]   TVNZ argued that, when reporting on court proceedings, news and current affairs outlets had an obligation and responsibility to provide a fair and accurate portrayal of what was said in court. Further, it contended that broadcasting the courtroom footage of the trial enabled informed debate on the wider issue of the provocation defence in the New Zealand legal system.

[11]   TVNZ stated that news, current affairs and factual programming often contained disturbing or alarming material that reflected a world in which violence occurred, and argued that it was in the public interest to show the footage. It considered that the evidence given by Mr Weatherston was significant, as the defence had argued that Ms Elliott’s references to previous partners had led to Mr Weatherston feeling insecure and that their relationship was a “controlling and abusive” one. TVNZ noted the defence had argued that Mr Weatherston’s impression of his relationship with Ms Elliott was part of the experience that provoked him to kill.

[12]   TVNZ argued that, in the context of a news and current affairs broadcast following a high-profile court case of a man accused of murder, the material contained in the item did not exceed the bounds of good taste and decency. It declined to uphold the complaint that Standard 1 had been breached.

[13]   However, the broadcaster said that its news department acknowledged that, throughout the reporting of Mr Weatherston’s trial, verbal warnings prior to such footage could have been better utilised. It stated that its news staff had learnt from the experience and that more robust processes had now been put into place to ensure appropriate warnings were placed at the outset of footage with the potential to disturb.

[14]   Turning to consider Standard 3 (privacy), TVNZ noted that the Authority had previously determined that the privacy standard did not apply to deceased individuals. It therefore declined to uphold the complaint that the item breached Standard 3.

Referral to the Authority

[15]   Dissatisfied with TVNZ’s response, Mr Oswald referred his complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989.

Authority's Determination

[16]   The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.

Standard 1 (good taste and decency)

[17]   When the Authority considers an alleged breach of Standard 1, it takes into account the context of the broadcast. On this occasion, the relevant contextual factors include:

• One News was an unclassified news programme

• the item was broadcast at 6pm

• the item was not preceded by a warning

• One News was broadcast during children’s normally accepted viewing times

• young children are unlikely to watch news programmes unsupervised.

[18]   The Authority notes that it is unusual for news items to provide details of a couple’s sexual relationship. However, it considers that it was not the details per se which would have upset some viewers, but the manner in which Mr Weatherston provided them and his attempts to justify his actions.

[19]   The Authority understands the distaste felt by the complainant at the disclosure of such personal details about a deceased person who could no longer give her own version of events. However, in the context of a news programme covering a trial with a high degree of public interest, it considers that the broadcaster was justified in broadcasting the details.

[20]   Further, the Authority finds that, while the details disclosed were of an intimate nature, they were not sufficiently explicit to require a verbal warning. It considers that the item’s introduction made it clear that footage of Mr Weatherston giving evidence was going to be included, and this gave viewers sufficient opportunity to decide whether they wanted to watch.

[21]   Taking the above contextual factors into account, the Authority declines to uphold the complaint that the item breached Standard 1.

Standard 3 (privacy)

[22]   Privacy principle 1of the Authority’s Privacy Principles states that it is inconsistent with an individual’s privacy to allow the public disclosure of private facts, where the disclosure would be highly offensive to an objective reasonable person.

[23]   As outlined in Tomonaga and CanWest TVWorks Ltd,¹ 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 person. Not being an individual within the meaning of the Act, a deceased person therefore does not have a legal right to privacy.

[24]   Accordingly, the Authority agrees with TVNZ that the privacy standard does not apply to Ms Elliott. It declines to uphold the Standard 3 complaint.

For the above reasons the Authority declines to uphold the complaint.

Signed for and on behalf of the Authority

Joanne Morris
Chair
25 November 2009

Appendix

The following correspondence was received and considered by the Authority when it determined this complaint:

1.          John Oswald’s formal complaint – 9 July 2009

2.          TVNZ’s response to the formal complaint – 6 August 2009

3.          Mr Oswald’s referral to the Authority – 23 August 2009

4.          TVNZ’s response to the Authority – 8 October 2009

¹Decision No. 2007-081