BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1)(a) of the Broadcasting Act 1989
One News – item showed autopsy photographs of child who had been beaten to death – allegedly in breach of good taste and decency, privacy, fairness, programme classification, children’s interests, and violence standards

Findings
Standard 1 (good taste and decency) – contextual factors – not upheld

Standard 3 (privacy) – standard does not apply to deceased individuals – not upheld

Standard 6 (fairness) – standard does not apply to deceased individuals – not upheld

Standard 7 (programme classification) – standard does not apply to unclassified news programmes – not upheld

Standard 9 (children’s interests) – broadcaster sufficiently mindful of the interests of child viewers – not upheld

Standard 10 (violence) – broadcaster exercised care and discretion in broadcasting the photographs – not upheld

This headnote does not form part of the decision.

Broadcast

[1]   An item on One News, broadcast on 6 August 2007 at 6pm on TV One, reported that anti-violence campaigners were organising a silent protest against child abuse in response to several recent murders of children. The presenter’s introduction included the following warning:

And a warning. Viewers might find some images in this next report disturbing.

[2]  The item included autopsy photographs of a named boy who had been beaten to death by his parents. The reporter stated that these photographs had initially been released by the High Court at the request of One News after the parents’ criminal trial, and had then formed part of an internet petition to stop abuse. The item contained a photograph of the child from behind, from his thighs to his neck, and several close-up shots of various bruises and abrasions on his body. The child’s face was not shown.

[3]   Dr Cindy Kiro, the Children’s Commissioner, commented in the item that the public did not need to see these “graphic images to show them how badly damaged this child was”, and that the child deserved privacy.

Complaint

[4]   Dr Cindy Kiro made a formal complaint to Television New Zealand Ltd, the broadcaster, stating that she had serious concerns about the programme showing the photographs of the deceased child. She alleged that Standards 1, 3, 6, 7, 9 and 10 of the Free-to-Air Television Code had been breached.

[5]   In respect of Standard 1 (good taste and decency), Dr Kiro wrote:

It was not necessary, the photos were graphic and disturbing, the item was shown early in the evening when children themselves may have been watching and showing them was a further abuse in death of a child who was abused in life.

[6]   Looking at Standard 3 (privacy), Dr Kiro stated that the item had breached the privacy of the boy whose autopsy photographs were shown. She also contended that Standard 6 (fairness) was breached because the use of the photographs was “exploitative” and distressing to the boy’s family. Dr Kiro maintained that the photographs were not being used to add to the understanding of a public issue, but to accompany a story about the reaction to them being circulated via email.

[7]   With respect to Standard 7 (programme classification), the complainant argued that the photographs were likely to cause unnecessary distress or alarm to children, and were shown well before 8.30pm during children’s normal viewing time.

[8]   Dr Kiro was of the view that the photographs were likely to disturb children as “they showed the beaten body of a dead child”. She maintained that they were not relevant within the context of the item, and that viewers had been given no choice but to see the photographs. For these reasons she contended that Standard 9 (children’s interests) had been breached.

[9]   The complainant stated that the young boy had been the victim of violence (Standard 10), and that it was not in the public interest to show the photographs. She argued that One News had “displayed a disregard for the rights of the young victim and exploitation of him by showing these photos”.

Standards

[10]  Standards 1, 6, 7, 9 and 10 of the Free-to-Air Television Code of Broadcasting Practice are relevant to the determination of this complaint. They provide:

Standard 1 Good Taste and Decency

In the preparation and presentation of programmes, broadcasters are responsible for maintaining standards which are consistent with the observance of good taste and decency.

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.

Standard 7 Programme Classification

Broadcasters are responsible for ensuring that programmes are appropriately classified; adequately display programme classification information; and adhere to time-bands in accordance with Appendix 1.

Standard 9 Children’s Interests

During children’s normally accepted viewing times, broadcasters are required, in the preparation and presentation of programmes, to consider the interests of child viewers.

Standard 10 Violence

In the preparation and presentation of programmes, broadcasters are required to exercise care and discretion when dealing with the issue of violence.

Broadcaster's Response to the Complainant

[11]   At the outset, TVNZ noted that Standard 3 (privacy) did not apply to deceased persons. It stated that the complainant’s concerns in regard to Standard 3 would be addressed under Standard 6 (fairness).

[12]   Looking at Standard 1 (good taste and decency), TVNZ stated that to breach the standard, the material must have been unacceptable to a significant number of viewers in the context in which it was shown. On this occasion, it said, the item was part of an unclassified news programme with an adult target audience. TVNZ said that the Authority had previously accepted that news programmes were unlikely to be watched by unsupervised young children. It contended that the item had not contained anything that was inappropriate for an unclassified news broadcast screening within a G time-band.

[13]   The broadcaster noted that the item had carried a warning for disturbing images, and wrote:

While the autopsy photographs are chilling and sad they were shown as part of a wider discussion on child abuse in New Zealand and the actions some groups were taking to bring the abuse to the public’s attention.

[14]   TVNZ stated that the judge who had allowed the videoing of the autopsy photographs had stipulated that certain photographs were not to be shown to preserve the child’s dignity, and One News had adhered to this. It noted that the autopsy images were not used habitually in One News broadcasts; in fact, it believed that this was the only time that the autopsy photographs had ever been used.

[15]  The broadcaster disagreed with Dr Kiro’s statement that showing the photographs was a “further abuse in death” of the child; it said the photographs were shown as a “tragic reminder of what all the children named in the item went through”. No disrespect was shown or intended towards the child, it wrote.

[16]  TVNZ found that the images would not have been offensive to a significant number of viewers in the context of an item about proposed anti-violence campaigns. It considered that Standard 1 was not breached.

[17]  With respect to Standard 6 (fairness), TVNZ contended that the news item was mainly about the “widespread outrage” at the recent death of another child, and a call by concerned groups for New Zealanders to stop child abuse. When shown in this context, it said, the photographs served to illustrate “the sickening level of this abuse”. The images had not been shown lightly and without consideration, the broadcaster said, noting that Dr Kiro’s perspective on showing the images had been included in the item.

[18]   The broadcaster agreed that seeing the photographs would be upsetting for the child’s family. However, it noted that the only family members in court who opposed the photos being allowed into the public realm were those found guilty of wilful ill-treatment, manslaughter and failing to provide medical treatment for the child. Further, no complaint about the item had been made by the child’s family.

[19]   In TVNZ’s view, showing the images was not unfair or disrespectful to the child or his memory. They were important in the context of a call for New Zealanders to do something about child abuse, it said, and TVNZ had adhered to the judge’s stipulations that the child’s genitals and face not be shown. It considered that Standard 6 was not breached.

[20]  Looking at Standard 7 (programme classification), TVNZ noted that One News is a scheduled news programme aimed at adult viewers. Further, it wrote, the item had been preceded by a warning which would have given parents enough information to realise that the story may include footage that they would not wish their children to see. Noting that One News was an unclassified programme, the broadcaster maintained that the footage of the child was acceptable to screen during a G time-band with a warning. It found no breach of Standard 7 on this occasion.

[21]   TVNZ repeated its comments above with respect to Standard 9 (children’s interests), noting that One News was unlikely to be viewed by unattended children. It considered that the standard was not breached.

[22]   Lastly turning to Standard 10 (violence), the broadcaster noted that the judge allowed TVNZ to film the autopsy photographs “so that they may give pause to those people who choose to ignore that their family members are being hurt”. The tone of the item was appropriate for a news item screening in G time, it said, and a warning had indicated the distressing footage. In TVNZ’s view, Standard 10 was not breached on this occasion. It declined to uphold Dr Kiro’s complaint.

Referral to the Authority

[23]  Dissatisfied with the broadcaster’s decision, Dr Kiro referred her complaint to the Authority under section 8(1)(a) of the Broadcasting Act 1998. She maintained that Standard 3 (privacy) applied and reiterated her original argument in respect of that standard.

[24]   With respect to Standard 1 (good taste and decency), Dr Kiro noted that many children watched the news to complete homework assignments or were around the television at 6pm in the evening. The images were unlike anything normally shown on the news, she wrote, and the warning could not possibly have prepared viewers for the disturbing photographs of a young boy who had been beaten to death. Dr Kiro noted TVNZ’s admission that this may have been the only time that autopsy photographs had ever been used.

[25]   Looking at Standard 9 (children’s interests), the complainant noted TVNZ’s argument that children were unlikely to view One News unattended. She wrote:

Children are interested in stories about other children and therefore, more likely to view them if they happen to be in the room while the news is on, or are following the news for school assignments. As showing autopsy photos was unprecedented for TVNZ, the standard “warning viewers might find some images in this next report disturbing” prepared neither children, nor adults, for the graphic nature of these photos and the many aspects of inappropriateness of showing them.

[26]   The complainant maintained that viewers did not need to see “such graphic representations of violence against children” to understand that such violence was wrong. She stated that the use of the photographs was “gratuitous and voyeuristic”.

[27]   Dr Kiro reiterated her previous comments in respect of Standards 6 (fairness), 7 (programme classification) and 10 (violence).

Broadcaster’s Response to the Authority

[28]   TVNZ noted that it had not said that this was the only time autopsy photographs had ever been used by One News; it had said “The autopsy images are not used habitually”, and was referring specifically to the autopsy photographs of this child.

[29]   The broadcaster stated that the High Court judge had not made any stipulations in regard to public interest in showing the photographs, only that certain photographs must not be shown to preserve the child’s dignity. It argued that the images illustrated “precisely what is happening to our children”, and although they were not easy to see that did not mean they should not be shown. TVNZ reiterated that the images were preceded by a warning which gave people a choice about whether they wished to view the item.

[30]   TVNZ noted that the complainant had referred again to Standard 3 (privacy), and maintained that the standard did not apply to deceased individuals.

Complainant’s Final Comment

[31]   Dr Kiro did not accept that Standard 3 (privacy) did not apply to the deceased child, and she stated that there was a moral obligation to protect his privacy. She reiterated her view that people did not need to see the images to understand the impact of violence.

[32]   In Dr Kiro’s view, the autopsy photographs should not have been shown on television at all, “let alone at a time when children could easily have viewed them”. She maintained that no verbal warning, including the one given before this item, was adequate to cover the impact of showing the photographs. Despite the High Court judge’s ruling, she said, it was questionable whether publication of autopsy photographs of a young child beaten to death could ever be in the public interest.

Broadcaster’s Final Comment

[33]   TVNZ reiterated some of the comments made in its original response to Dr Kiro.

Authority's Determination

[34]   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)

[35]   When the Authority considers a complaint that alleges a breach of good taste and decency, it is required to take into account the context of the broadcast. On this occasion, the relevant contextual factors include:
the item was broadcast at 6pm
One News has an adult target audience
news and current affairs programmes are unclassified
the item was preceded by a verbal warning stating “viewers might find some images in this next report disturbing”.

[36]   Having been warned that some images in the report might be “disturbing”, and being aware that the subject of the report was child abuse and murder, the Authority considers that viewers were given sufficient information with which to decide whether they wished to view the item. Further, the Authority notes that the autopsy photographs were shown almost two minutes into the item which gave the audience time to switch off the report if they did not wish to see the images.

[37]   The Authority also observes that TVNZ adhered to the stipulations made by the High Court judge who allowed the broadcaster to film the photos. The child’s face and genitals were not shown and, in this respect, the Authority finds that TVNZ exercised care and discretion in order to preserve the child’s dignity.

[38]   The Authority acknowledges that the autopsy images would have been distressing to some viewers. However, they conveyed the grim reality of child abuse in the context of an item which discussed a silent protest against child abuse organised by anti-violence campaigners.

[39]   Taking into account the contextual factors outlined above, the Authority finds that Standard 1 was not breached.

Standard 10 (violence)

[40]   Standard 10 requires broadcasters to exercise care and discretion when dealing with the issue of violence. In the Authority’s view, the effects of violence such as those depicted in the autopsy photographs are part of the “issue of violence”, and therefore Standard 10 applies to the broadcast.

[41]  In assessing whether Standard 10 was breached, the Authority has had regard to the same contextual factors outlined above in paragraph [35]. In addition, guideline 10g recognises that news programmes will often contain “violent, disturbing or alarming material”, and that broadcasters “should not falsify by omission, a world in which much violence and brutality occurs”.

[42]   The Authority is of the view that TVNZ used appropriate judgement and discretion in deciding the degree of graphic detail to be included in the news programme, and it included a warning in the item’s introduction. In these circumstances, the Authority concludes that Standard 10 was not breached.

Standard 9 (children’s interests)

[43]   Standard 9 requires broadcasters to consider the interests of child viewers during their normally accepted viewing times. As above in its consideration of Standards 1 and 10, the Authority takes into account the contextual factors outlined in paragraph [35] in determining whether Standard 9 was breached.

[44]   The Authority notes that guideline 9e makes particular reference to material in which people – especially children – may be badly treated. The guideline requires broadcasters to handle such material with care and sensitivity, and avoid gratuitous material of this nature. The Authority is of the view that the autopsy photographs were not gratuitous. The photographs were relevant to an item discussing a response to several horrific child murders, and TVNZ did not show the child’s face or genitals.

[45]    The Authority considers that the warning which preceded the item, and the fact that the photographs were not shown until two minutes into the item, gave parents and caregivers adequate opportunities to exercise discretion. For these reasons, the Authority considers that the broadcaster was sufficiently mindful of the interests of children as required by Standard 9. It does not uphold the complaint. 

[46]   While not upholding the complaints, two members of the Authority (Joanne Morris and Tapu Misa) note that it is unusual to see autopsy photographs in the 6pm news, particularly involving children. The members acknowledge that the item was preceded by a warning, but consider that the warning could have made a specific reference to autopsy photographs of a child in order to leave viewers in no doubt as to the content of the report. These comments are particularly important for Standard 9 (children’s interests) but Ms Morris and Ms Misa consider that they also apply to Standards 1 and 10.

Standard 3 (privacy) and Standard 6 (fairness)

[47]   The Authority has determined on previous occasions that Standard 3 (privacy) and Standard 6 (fairness) do not apply to deceased individuals (see for example Decision Nos 2006-121 and 2002-073). Accordingly, it concludes that these standards do not apply to photographs of the deceased child. The Authority declines to uphold these parts of the complaint.

Standard 7 (programme classification)

[48]   Standard 7 states that broadcasters are responsible for ensuring that programmes are appropriately classified. The complainant argued that the photographs were shown well before 8.30pm during children’s normal viewing time. As outlined in Appendix 1 to the Free-to-Air Television Code, news and current affairs programmesare unclassified. Accordingly, Standard 7 does not apply to the broadcast of the autopsy photographs during One News. The Authority does not uphold the programme classification complaint.

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

Signed for and on behalf of the Authority

Joanne Morris
Chair
26 March 2008

Appendix

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

1.            Dr Cindy Kiro’s formal complaint – 3 September 2007
2.           TVNZ’s decision on the formal complaint – 1 October 2007
3.           Dr Kiro’s referral to the Authority – 16 October 2007
4.           TVNZ’s response to the Authority – 30 November 2007
5.           Dr Kiro’s final comment – 20 December 2007
6.           TVNZ’s final comment – 7 January 2008