One News – item disclosed details of murder victim's private life – information allegedly gained by deception – use insensitive to family
Standard 6 and Guidelines 6c and 6e – conflicting accounts about provision of information – decline to determine – s11(b)
This headnote does not form part of the decision
 Details of the private life of murder victim Mark Burns were broadcast in an item on One News at 6.00pm on 7 September 2003.
 Irene Burns, an aunt of the deceased, complained to Television New Zealand Ltd, the broadcaster, that the journalist who had contacted her about Mark's death had reported information in the item which she had asked not to be broadcast.
 In response, TVNZ contended that the accounts of the events from the complainant and the reporter could not be reconciled. It maintained that the reporter genuinely believed that the information she disclosed was public information.
 Dissatisfied with TVNZ's decision, Mrs Burns referred the complaint to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.
For the reasons below, the Authority declines to determine the complaint.
 The members of the Authority have viewed a tape of the item complained about and have read the correspondence which is listed in the Appendix. The Authority determines the complaint without a formal hearing.
 An item broadcast on One News at 6.00pm on 7 September 2003 included comment on aspects of the private life and personality of murder victim Mark Burns.
 Irene Burns, an aunt of the deceased, complained to TVNZ that the journalist who had contacted her in relation to Mark's death, had reported information about him that she was specifically asked not to release. The complainant said that she had advised the reporter that she was not the spokesperson for the family and had agreed to speak to the victim's immediate family about making a statement. The understanding was, according to the complainant, that if the family was prepared to release a statement, she would contact the reporter.
 The complainant contended that the information acquired by the reporter was gained by devious means, and that by broadcasting aspects of the information the reporter demonstrated a complete lack of sensitivity to the family's grief.
 In view of the matters raised in the complaint, TVNZ assessed it under Standard 6 of the Free-to-Air Television Code of Broadcasting Practice. The Standard and relevant Guidelines 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.
6c Programme makers should not obtain information or gather pictures through misrepresentation or deception, except as required in the public interest when the material cannot be obtained by other means.
6e Broadcasters should take particular care when dealing with distressing situations, and with grief and bereavement. Discretion and sensitivity are expected.
 TVNZ expressed its deepest sympathy to the family. It contended that the account of events from the complainant and the reporter could not be reconciled. TVNZ maintained that the reporter genuinely believed that those aspects of the interview which she disclosed in the item was information available for public broadcast. TVNZ also contended that the reporter did not deliberately attempt to mislead the complainant about the purpose of her telephone conversation.
 Mrs Burns attached to her referral to the Authority a letter addressed to the broadcaster which stated that aspects of her telephone conversation with the reporter which referred to her nephew's private life were prefaced with a statement that the information was “off the record”. She also denied telling the reporter that “Mark was very much loved, was supported by his family and was not a loner”. These, she said, were the reporter's own words.
 In her referral, Mrs Burns challenged TVNZ's contention that the information on her nephew's private life was available for public broadcast. She reiterated that at no time did she give permission to the reporter to broadcast any aspect of their telephone conversation. Furthermore, she wrote, the reporter gave Mrs Burns her word that she would not do so until after the immediate family had been consulted and given its consent.
 In view of the contrasting accounts given by the complainant and the broadcaster, the Authority sought an affidavit from TVNZ. The reporter was asked to provide an account of the conversations she had had with the complainant.
 In her affidavit, the reporter reiterated the account of events which TVNZ had earlier put to the complainant in its response to the formal complaint. Among the matters dealt with in the affidavit, the reporter said that she had expressed some sympathy to the complainant about the behaviour of some of the media. The reporter was adamant, nevertheless, that the personal information given was a “clear ‘on the record' statement”.
 The reporter said that, in general conversation, the complainant had said a number of things which she did not report as they might have upset the victim's mother. She referred to other sources of information she had used to compile the story, and maintained that the item used “on the record” material which had been “properly obtained at the time”
 In response, the complainant rejected many of the statements made by the reporter, adding that she too was prepared to sign an affidavit to confirm the allegations that she had made in her complaint. The complainant stated that TVNZ's reporter had known that all her comments were off the record. The reporter, she added, was “very unprofessional towards me at what was a very difficult time”.
 The Authority is faced with a situation where both the complainant and the reporter firmly assert that they have given the Authority an accurate account of their telephone conversation. The Authority considers that there are no further practical steps it can take to resolve this conflicting account of events. It surmises that the complainant and the reporter may have been talking at cross-purposes, each with her own understanding of the limits of “off the record” comments. Although the Authority has sympathy for the complainant in having reached this impasse, it is of the view that its most appropriate action on this occasion is to decline to determine the complaint.
For the reasons above, the Authority declines to determine the complaint in all the circumstances under s.11(b) of the Broadcasting Act 1989.
Signed for and on behalf of the Authority
4 March 2004
The following correspondence was received and considered by the Authority when it determined this complaint:
1. Irene Burns' Complaint to Television New Zealand Ltd – 23 September 2003
2. TVNZ's Response to the Formal Complaint – 9 October 2003
3. Mrs Burns' Referral to the Broadcasting Standards Authority – 13 October 2003
(plus attached correspondence to TVNZ dated 14 September 2003 and
13 October 2003)
4. TVNZ's Response to the Authority – 6 November 2003
5. TVNZ's Response to the Authority's Request for an Affidavit – 16 December 2003
6. Mrs Burns' Response to TVNZ's Affidavit – 30 December 2003