BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

The Complaint
A teenager who was reported in a 3 News item as “believed” to have died in a Christchurch house fire (which killed her father, her father’s wife, her grandmother and a boarder), complained that the item was inaccurate, and had “shocked, upset and angered” many of those who knew her.  She claimed the item was also unfair, and breached her father’s privacy as well as her own.

The Broadcaster’s Response
CanWest argued that the item was accurate because the report said the identities of the four dead were “believed to be 58-year-old Japanese immigrant Junichi Tomonaga and his wife, his teenage daughter and his mother or mother-in-law”.  The broadcaster said it had taken care to establish a good basis for its “belief” by making enquiries into who was living at the house.  It added that as soon as the police released the facts, it had broadcast them.

The Authority’s Decision
The Authority said that viewers would not have been misled by the report because of the phrase “believed to be”, and the statement in the report that police had not confirmed the identities of the four dead. The Authority found that item was therefore not inaccurate.

However, a majority of the Authority agreed that the broadcast was unfair.  Given the considerable stress and anguish caused by the item, it considered that the broadcaster should have explicitly corrected the earlier statement concerning Ms Tomonaga.

The Authority did not agree there had been a breach of privacy. The privacy standard did not apply to Mr Tomonaga as he was deceased, and the item did not disclose any private facts about Ms Tomonaga.

Standard 3 (privacy) – not upheld

Standard 5 (accuracy) – not upheld

Standard 6 (fairness) – majority uphold

No Order

This headnote does not form part of the decision.

Broadcast

[1]   An item on 3 News, broadcast on TV3 at 6pm on 2 April 2007, reported that a house fire had claimed the lives of four people in Christchurch. The report stated:

…Police are refusing to confirm the cause of death and identity of the four dead, but they are believed to be 58-year-old Japanese immigrant Junichi Tomonaga and his wife, his teenage daughter and his mother or mother-in-law.  

[2]   The reporter stated that Mr Tomonaga was known to have ongoing money problems following a failed business venture, and that his workmates had confirmed that he was under “severe financial pressure” and one had said that “while he was shocked [at the deaths], he wasn’t surprised”. 

[3]   On 3 April 2007 3 News reported that Mr Tomonaga and his 80-year-old mother had died along with two others, and that police “now say the four people found dead inside may have been murdered” as the fire had been deliberately lit. The report reiterated that it was understood Mr Tomonaga had had money problems in the past.

[4]   On 4 April 2007 3 News reported that police had confirmed they were not looking for anyone else in connection with the house fire which had “claimed the lives of a Japanese family”. The reporter said that police had confirmed that Mr Tomonaga’s mother had been found in her bedroom downstairs, Mr and Mrs Tomonaga were found in their bed, and a “border and family friend” was found downstairs.

Complaint

[5]   Yaeh Tomonaga (the teenage daughter of Junichi Tomonaga) complained to CanWest TVWorks Ltd, the broadcaster, that the item was inaccurate because it reported that she had been killed in the fire. She stated that the report had “shocked, upset and angered many people including family friends, neighbours, work colleagues and her former teachers, to name a few”.

[6]   Ms Tomonaga maintained that CanWest had breached standards of privacy and fairness because the item had “identified her father by displaying a photograph of him, visited his workplace, interviewed his work colleagues, made allegations about his financial position and the failure of his past business and implied suicide was likely”, all of which was done prior to her father’s death being officially confirmed. She said that her brother had identified the bodies the day after the broadcast, and the confirmation of her father’s death had not been announced by police until late on the afternoon of 3 April 2007.

[7]   The complainant noted that TV3’s newsproducer had telephoned her and apologised on behalf of the broadcaster.

Standards

[8]   CanWest assessed the complaint under Standards 3, 5, and 6 of the Free-to-Air Television Code of Broadcasting Practice. These provide:

Standard 3 Privacy

In the preparation and presentation of programmes, broadcasters are responsible for maintaining standards consistent with the privacy of the individual.

Standard 5 Accuracy

News, current affairs and other factual programmes must be truthful and accurate on points of fact, and be impartial and objective at all times.

Standard 6 Fairness

In the preparation and presentation of programmes, broadcasters are required to deal justly and fairly with any person or organisation taking part or referred to.

Broadcaster's Response to the Complainant

[9]   In terms of privacy, CanWest argued that the complainant’s father had no right to privacy as he was deceased. It maintained that it had not breached the complainant’s privacy as the report had not disclosed any private facts about her. CanWest argued that its report of a “belief” that the complainant had been killed in the fire “did not fall into the category of disclosures that would give rise to a breach of the standard”. It declined to uphold the privacy complaint.   

[10]   CanWest argued that “it was accurate to state what the identity of the dead was believed to be”, and that the sources it had contacted had confirmed that the people who resided at the address were those described in the report. It maintained that the enquiries it had made into who was living at the house had provided a sufficient basis to express the belief that those were the people who had died. As a result, the broadcaster found that there had been no breach of the accuracy standard. 

[11]   The broadcaster considered the report to be fair and that it was not lacking in discretion or sensitivity. It maintained that the reporter had taken care to establish a good basis for his belief and that the police had not advised the media that there were additional family members to be advised, as would usually be the case. The broadcaster argued that, as soon as the police released the facts, it had broadcast them. It noted that its Christchurch Chief of Staff had contacted the complainant and apologised to her. CanWest declined to uphold the fairness complaint.   

Referral to the Authority

[12]   Dissatisfied with CanWest’s response, Ms Tomonaga’s solicitor referred her complaint to the Authority under section 8(1)(a) of the Broadcasting Act 1989.

[13]   Ms Tomonaga maintained that the broadcaster had no basis for the incorrect information that it had reported, and that it was a breach of protocol to name those killed in the fire without the police first confirming their identity. She pointed out that the broadcast had caused a lot of stress and anguish, not only to herself, but to members of her immediate family and friends who thought she had been killed.

[14]   Ms Tomonaga also expressed disappointment that she did not receive a response from the broadcaster until two months after lodging her formal complaint.

Broadcaster's Response to the Authority

[15]   The broadcaster argued that its reporters had acted responsibly and upon reasonable sources of information when making the statement in the report.

[16]   CanWest maintained that it had acted swiftly after the police confirmed the identity of those who had died, and that its subsequent reports had ended any speculation that Ms Tomonaga was killed in the fire. It apologised for the delay in responding to Ms Tomonaga’s complaint.

Complainant’s Final Submission

[17]   Referring to CanWest’s response, the complainant maintained that the broadcaster “failed to address, at all, the proper issues in a reasonable way”.

Authority's Determination

[18]   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 5 (accuracy)

[19]   The news item complained about stated that the four people who had died in the house fire were “believed to be” Mr Tomonaga and his wife, his teenage daughter and his mother or mother-in-law. Further, the item stated that police had not confirmed the identity of the deceased or the cause of death.

[20]   Guideline 5b to the accuracy standard states that broadcasters must refrain from broadcasting material which misleads viewers. Equally, the Authority recognises that speculation is a well-established and accepted convention of media in New Zealand. Major announcements such as Reserve Bank interest rates are invariably preceded by speculation, and fast-breaking major event stories often contain speculation (e.g. the number of deaths in a plane crash or, as in this case, the identities of those who have died in a fire). In assessing whether an audience would have been misled, the Authority considers, firstly, whether a reasonable viewer or listener would understand that the information is speculation and, secondly, whether the speculation has a reasonable basis and the broadcaster is not just passing on baseless rumour or innuendo.

[21]   In this case, the Authority is satisfied that a reasonable viewer would have understood, from the statement that police had not released the identities of the dead and the use of the word "believed", that the information broadcast was speculation and not put forward as absolute fact. Turning to whether the broadcaster had a reasonable basis for speculating, the Authority notes that the reporter consulted neighbours and Mr Tomonaga's work colleagues as to who normally lived in the house. From this information, the reporter surmised the people he had been told normally lived in the house were the victims of the fire (incorrectly, in Ms Tomonaga's case).

[22]   The Authority accepts that the reporter had a reasonable basis for speculating about the identities of the deceased, and therefore it declines to uphold the accuracy complaint. It acknowledges that the right to free speech includes the right to speculate, or to report on speculation, and this principle has guided its decision.  However, it notes that in reporting such serious matters as the identities of those killed in such events, editors and journalists should ensure they are satisfied that there is a reasonable basis for the information they include.

[23]   For one member of the Authority (Joanne Morris), it was a borderline decision whether to accept that the reporter’s belief about the identity of the four deceased was based on reasonable grounds, for the following reasons. Ms Morris notes that the reporter’s sources – neighbours and workmates – could only confirm who they believed to be the usual residents of the address, not who had died in the fire. Since the sources were clearly mistaken as to the identity of Ms Tomonaga, and were unsure about whether the older resident was Mr Tomonaga’s mother or mother-in-law, this raises questions, in Ms Morris’ view, as to the reliability of the reporter’s sources.

[24]   Further, Ms Morris notes that the reporter assumed, from the fact that the police had said nothing to the media about being unable to identify the deceased because they needed to contact surviving relatives, that the entire family (including Ms Tomonaga) had perished in the fire. In Ms Morris’ view, it was unwise to place any reliance on the fact that the police had not made such a statement, particularly when the Tomonaga family also included a surviving son.

[25]   Despite these concerns, Ms Morris agrees with the other Authority members that viewers would not have been misled into thinking that the report was a conclusive statement on the identities of the deceased.

Standard 6 (fairness)

[26]   The fairness standard requires that broadcasters deal justly and fairly with any person or organisation taking part or referred to in a programme. A majority of the Authority (Joanne Morris, Tapu Misa and Paul France) finds that the broadcaster failed to treat Ms Tomonaga fairly on this occasion. Although it was not inaccurate to report that Ms Tomonaga was “believed” to be dead, the fact remains that the complainant did not die in the house fire.

[27]   Ms Tomonaga has advised the Authority that she has suffered considerable stress and anguish as a result of the news item, and the broadcaster clearly acknowledged this when it apologised to the complainant after the broadcast. Her distress was exacerbated by the fact that the broadcaster did not respond to her complaint in a timely manner.

[28]   In the majority’s view, reporting deaths is an extremely serious matter and one which requires the utmost care. It considers that, in the interests of fairness, the broadcaster should have explicitly corrected the earlier statement that Ms Tomonaga was believed to have died. This may have ameliorated some of the complainant’s hurt and distress.

[29]   In these circumstances, the majority considers that the complainant was treated unfairly in breach of Standard 6. It upholds this part of the complaint.

[30]   A minority (Diane Musgrave) disagrees with the majority that the item was unfair to the complainant. In the minority’s view, CanWest dealt fairly with Ms Tomonaga because it broadcast the confirmed identities of the deceased when the official information became available. The minority considers that this was sufficient to inform viewers who had actually died in the fire.

Standard 3 (privacy)

[31]   Privacy principle 1 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.

[32]   As outlined in Decision No. 2000-165, 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. Accordingly, the Authority agrees with CanWest that the privacy standard does not apply to the complainant’s father.

[33]   Looking at whether Ms Tomonaga’s privacy was breached, the Authority notes that an essential element of a privacy complaint is the disclosure of private facts about an individual. In the present case, no private facts about the complainant were revealed in the report. In these circumstances, the Authority finds that Standard 3 was not breached.

Bill of Rights

[34]   For the avoidance of doubt, the Authority records that it has given full weight to the provisions of the New Zealand Bill of Rights Act 1990 and taken into account all the circumstances of the complaint in reaching this determination. For the reasons given above, the Authority considers that its exercise of powers on this occasion is consistent with the New Zealand Bill of Rights Act.

For the above reasons a majority of the Authority upholds the complaint that the broadcast by CanWest TVWorks Ltd of 3 News on 2 April 2007 breached Standard 6 of the Free-to-Air Television Code of Broadcasting Practice.

[35]   Having upheld a complaint, the Authority may make orders under sections 13 and 16 of the Broadcasting Act 1989. Having considered all the circumstances of the complaint, and taking into account that the decision to uphold the complaint was not unanimous, the Authority concludes that an order is not appropriate. It considers that the publication of its decision is sufficient on this occasion.

Signed for and on behalf of the Authority

Joanne Morris
Chair
21 December 2007

Appendix

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

1.            Yeah Tomonaga’s formal complaint – 1 May 2007
2.           CanWest’s decision on the formal complaint – 8 July 2007
3.           Ms Tomonaga’s referral to the Authority – 10 August 2007
4.           CanWest’s response to the Authority – 5 September 2007
5.           Ms Tomonaga’s final submission – 1 October 2007
6.           CanWest’s final submission – 3 October 2007