Complaint under section 8(1)(a) of the Broadcasting Act 1989
DNZ: Waiting List – documentary – examined attitude of New Zealanders to organ donations and shortage of available organs – reference to ethnic differences – use of footage from tangi at the Mokai Kainga marae in Kawhia – complaint that archival footage used unfairly – upheld by TVNZ as a breach of Standard 6 and Guidelines 6e and 6h – action taken – footage will not be included if documentary screened again – footage would not be used again without appropriate approvals – apology offered to complainant and members of Mokai Kainga marae – action taken considered insufficient – broadcast apology sought
Action taken – insufficient
Broadcast of statement
This headnote does not form part of the decision.
 Attitudes to organ transplant and the shortage of donated organs were discussed in DNZ: Waiting List, broadcast on TV One at 8.30pm on 20 June 2005. The programme discussed some ethnic differences in the approach to donor surgery and used as generic footage pictures taken from a recent tangi which took place at the Mokai Kainga marae in Kawhia.
 On behalf of the elders and younger workers of the Mokai Kainga marae, Nick Tuwhangai complained to Television New Zealand Ltd, the broadcaster, that the item was unfair. The complainant said the item included pictures of a tangi held at the marae in 2004 and, pointing to the embarrassment caused by the use of the footage, asked who had given permission for the images to be included in the documentary.
 TVNZ assessed the complaint under Standards 6 and Guidelines 6e, 6g and 6h of the Free-to-Air Television Code of Broadcasting Practice. They read:
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.
Broadcasters should take particular care when dealing with distressing situations, and with grief and bereavement. Discretion and sensitivity are expected.
Broadcasters should avoid portraying persons in programmes in a manner that encourages denigration of, or discrimination against, sections of the community on account of sex, sexual orientation, race, age, disability, or occupational status, or as a consequence of legitimate expression of religious, cultural or political beliefs. This requirement is not intended to prevent the broadcast of material which is:
i) factual, or
ii) the expression of genuinely held opinion in news, current affairs or other factual programmes, or
iii) in the legitimate context of a dramatic, humorous or satirical work,
Broadcasters should avoid causing unwarranted distress to surviving family members by showing library or archival footage of bodies or human remains. This guideline is not intended to prevent the use of material which adds significantly to the understanding of an issue of public interest.
 TVNZ explained that the footage had been used
…. in a genuine attempt to provide a visual indicator that the programme was at that time discussing organ donation in the context of Māori culture.
 Stating that there had been no intention to offend or cause embarrassment, TVNZ said that it had worked with a senior and respected Māori expert.
 Nevertheless, TVNZ admitted, it had been unfair to use the images of a fairly recent tangi at the Mokai Kainga marae without consulting iwi. Under Guideline 6e the production team had shown insufficient sensitivity in a situation involving grief and, in regard to Guideline 6h, TVNZ acknowledged that the pictures had caused unwarranted distress. TVNZ argued that the pictures of the tangi had increased the understanding of the issue, but accepted that other imagery could have been used. TVNZ considered that Guideline 6g had not been breached.
 Apologising for any offence or embarrassment caused, TVNZ said that, having upheld the complaint under Standard 6, it had taken the following action.
… an instruction has been given that if the programme is repeated at any time, the sequence showing the tangi is to be replaced by other imagery. At the same time the archival footage has been “tagged”… so that anyone tempted to use it in future must seek the appropriate approvals.
 Dissatisfied with the action taken by TVNZ, Mr Tuwhangai referred the complaint on behalf of the members of the marae to the Authority under s.8(1)(a) of the Broadcasting Act 1989.
 While thanking TVNZ for the ruling and the apology, Mr Tuwhangai said that a public apology was appropriate so that all Māori were aware that the footage shown in the programme had not been provided by Mokai Kainga marae, and that the views expressed did not represent the views of the marae. The wording of a broadcast apology was suggested.
 TVNZ pointed out that neither the marae nor the name of the deceased person was named in the item. It also pointed out that its letter to Mr Tuwhangai included an apology and Mr Tuwhangai could publish or distribute that letter as he wished.
 Reiterating the action that it had taken, TVNZ stressed that the marae was not identified. Further, the broadcast of a statement after another documentary could mean little to viewers as it would not be related to the documentary screened at that time.
 On behalf of the marae, Mr Tuwhangai acknowledged that the marae was not named. Nevertheless, he explained, the wharenui of each marae can be easily recognised by visitors, and their marae had been recognised by many people as a result of the broadcast. Moreover, he added, two female poupou that formed the amo of the marae were a distinguishing feature.
 Mr Tuwhangai agreed that the name of the deceased was not given. However, he noted, it was a significant funeral for a 99-year-old Tainui kuia, and the event, the marae and the people were easily identifiable as a result. This included Te Arikinui, Dame Te Atairangikaahu, the Māori Queen.
 As for TVNZ’s suggestion that it publish TVNZ’s apology, Mr Tuwhangai wrote:
While the broadcaster has provided a written apology to our marae, no apology to those visitors and the Māori Queen has been extended. The broadcaster advises that if we wish we could publish their apology. We believe this is unfair and unrealistic. It is not appropriate in the Māori world-view for us to attempt to identify those people who attended the marae at that time and take the broadcaster’s letter of apology to each in an attempt to exonerate ourselves from the whakama, this would in effect actually increase the whakama. As well, should we have wished to publish the letter the costs should not be borne by us for suffering the broadcaster’s breach. This whakama is paramount to pain and suffering.
 The members of the Authority have viewed a tape of the broadcast complained about and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.
 The Authority agrees with TVNZ that broadcasting archival footage of a tangi at the Mokai Kainga marae without consulting iwi was a breach of the fairness standard. While it endorses TVNZ’s actions regarding any possible use of that footage in the future, as outlined in para , it does not accept that such action is sufficient in the circumstances.
 In reaching its decision, the Authority records it disagreement with TVNZ’s argument that the distress caused would be limited, as the marae was not identifiable. As Mr Tuwhangai pointed out on behalf of the marae, the wharenui of each marae is distinct and the two carved poupou (ancestors) that form the amo (carved post) of Mokai Kainga are unique. Accordingly, the Authority considers that the marae would have been recognised by many people. In view of the likely widespread recognition of the marae, the Authority considers that some further action on TVNZ’s part is necessary.
 The Authority accepts that the item did not make a clear statement about the marae’s stance on the organ donation debate. Nevertheless, it accepts that the use of archival footage of a tangi, in the context of a programme about organ donation, would have distressed a number of those associated with the marae or present at the tangi, because of their opposition, on cultural grounds, to organ donation. For this reason, the Authority agrees that the use of that material was unfair. Because of the distress and embarrassment caused, the Authority considers a statement appropriate.
 The Authority notes that TVNZ explained that the footage was used to provide a “visual indicator” that the programme was dealing with organ donation in the context of Māori culture. In view of the inappropriate use of that footage, the Authority considers that the statement should be placed in a programme targeted at Māori viewers.
For the above reasons, the Authority rules that the action taken by Television New Zealand Ltd, having upheld a complaint that the broadcast of DNZ: Waiting List breached Standard 6 of the free-to-air Television Code, was insufficient.
Pursuant to s.13(1)(a) of the Broadcasting Act 1989, the Authority orders Television New Zealand Ltd to broadcast a statement summarising this decision within one month of the date of this decision. The statement and the time and place of its broadcast shall be approved by the Authority.
The Authority draws the broadcaster’s attention to the requirements of s.13(3)(b) of the Broadcasting Act for the broadcaster to give notice to the Authority of the manner in which the above order has been complied with.
Signed for and on behalf of the Authority
1 November 2005
The following correspondence was received and considered by the Authority when it determined this complaint: