BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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Summary

Malcolm Sutherland, a New Zealand soldier in Vietnam in 1970, was killed by "friendly fire". The incident was "covered-up" by the platoon commander, Lieutenant Roger Mortlock, and the death was reported officially as being the result of "enemy fire". The cover-up was explained on a 20/20 item broadcast at 7.30pm on 21 February 1999. The item reported that (now) Brigadier Mortlock had recently resigned under threat of dismissal.

Ms Banbury, the late Malcolm Sutherland’s sister, complained directly to the Broadcasting Standards Authority, under s.8(1)(c) of the Broadcasting Act 1989, that the item breached her privacy as she and another brother had been filmed at an emotional time at a Vietnam Veterans’ Reunion in 1998 when they accepted an honour on her brother’s behalf at a time when they did not know the true situation.

Ms Curley complained to TV3 Network Services Ltd, the broadcaster, that the item was inaccurate, unfair, unbalanced, deceptive and partial. She questioned 20/20’s approach in filming the Sutherland family without disclosing the programme’s real interest in the story. She also alleged a number of specific factual errors.

TV3 considered the privacy complaint should not be upheld as the footage had been filmed at an event which was open to the public, and at which TV3 had permission to film. It used the item despite Ms Banbury’s request for anonymity, it continued, as it believed that it illustrated the Army’s "perpetuation of a lie".

Declining to uphold any of the alleged factual errors, TV3 also contended that the standards were not breached as it did not consider that it had a duty to inform the Sutherland family of the cover-up. Moreover, TV3 stated, the item adequately explained the relationship between the reporter and one of the former soldiers in the platoon.

Dissatisfied with TV3’s decision on the standards issues, Ms Curley referred her complaint to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

For the reasons below, the Authority declines to uphold the complaints.

Decision

The members of the Authority have viewed the item complained about and have read the correspondence which is listed in the Appendix. Given the matters raised on this occasion, the Authority determines the complaint without a formal hearing.

The Programme

"The Big Lie" was the title of an item on 20/20 broadcast by TV3 on 21 February 1999 for a full commercial hour beginning at 7.30pm. It examined an incident which occurred among the New Zealand troops in Vietnam in 1970 where it was reported that a soldier had been killed by enemy action when, in fact, he was shot accidentally by another member of the platoon. The publicity given to the event recently, the item reported, resulted in the resignation of (now) Brigadier Roger Mortlock who had been the platoon commander in Vietnam and the programme argued that he had "covered-up" the incident.

The Complaints

Ms Jill Banbury complained to the Broadcasting Standards Authority that the item breached the requirement in s.4(1)(c) of the Broadcasting Act that broadcasters maintain in programmes and their presentation standards consistent with the privacy of the individual. Explaining that she was the sister of Malcolm Sutherland (the soldier who had been killed) and enclosing her correspondence with TV3 before the broadcast in which she sought the exclusion of certain material from the broadcast, Ms Banbury recalled that she and another brother had attended a Vietnam Vets’ reunion in Wellington in 1998 to represent their brother.

At the reunion, she recalled, she and her brother accepted a commemorative medal in memory of their brother at which time the Army’s report relating to her brother’s death was read in full. She added:

"My brother and I were totally unaware at the time that our brother had been killed by friendly fire…" .

However, she noted, TV3 was aware of it and a 20/20 crew had attended the ceremony to collect footage for use when the cover-up was revealed.

Ms Banbury said that shortly before the broadcast, and after she became aware of the cover-up, she had written to 20/20 to ask that her privacy be respected, and the footage of her not be used in the broadcast. Her request was declined, and she concluded:

"I consider that this ceremony was a very personal and private one for me personally, especially to stand in front of the comrades who had served with my brother in Vietnam and later to feel the humiliation when the truth was revealed. I relived it once at the reunion and twice more on the 20/20 programme in front of the whole of New Zealand."

Ms Curley complained to TV3 that the broadcast breached standards G1, G4, G6, G7 and G14 of the Television Code of Broadcasting Practice, in that it was inaccurate, unbalanced, partial, used deceptive programme practices, and dealt with the Sutherland family and Roger Mortlock unfairly.

The first section of her complaint was headed "Withholding Information from the Sutherland Family". In it she pointed out that although 20/20 acknowledged that it had been aware of the story for about a year, its television crew had nonetheless been dispatched to the Veterans’ Reunion in 1998 for the purpose, she attested, of filming the late Malcolm Sutherland’s brother and sister who had attended, and accepted a medal on his behalf. Describing 20/20’s approach as one of hypocrisy, Ms Curley considered that the Sutherland family should have been informed of TV3’s real interest before the reunion, thereby saving them from subsequent humiliation.

Moreover, Ms Curley wrote, some time after the reunion, 20/20’s reporter aligned herself as a confidante to the Sutherland family and talked about the possibility of telling their story while in fact "expediting a lie", and withholding information from them.

Ms Curley posed the question:

"When does ethics come into play in Journalism, or is that a rhetorical question with the answer being never?"

As a second ground of complaint, Ms Curley referred to the presenter’s family connections with Mr Paerata – another soldier in the platoon – and what she claimed to be his personal agenda to seek a pardon from the King of Thailand in relation to matters not dealt with on the programme. The crux of the complaint here was the complainant’s expressed belief that the presenter was using her position to assist Mr Paerata without disclosing this to the Sutherland family.

Turning next to balance and impartiality, Ms Curley asked why the programme raised the question of the morality of concealing the truth only in relation to Roger Mortlock, and not in regard to the other members of the platoon. Further, while it was noted that the platoon members were divided on Roger Mortlock’s actions, she wondered why the programme interviewed only those who did not stand by him. Ms Curley observed that other television programmes had spoken to those who supported him.

Concluding, Ms Curley noted that she was herself a daughter of a Vietnam Veteran and that she was equally concerned about the deceitful way NZ Defence had handled the situation. Describing the 20/20 item as "journalistic garbage", she sought a written and broadcast apology to the Sutherland family and to all viewers.

She appended a list of four points in the programme which, she said, were incorrect "though minor points". First, she wrote, Roger Mortlock resigned and was not sacked as the broadcast said; secondly, the item did not expose the cover-up as claimed as it was announced by NZ Defence; thirdly, the Vietnam war was winding down in 1970 and not in full swing as claimed; and fourthly, Ernie Paerata was not told to fire on imaginary Vietcong positions as the item alleged.

TV3’s Response

TV3 assessed Ms Curley’s complaint under the nominated standards. They require broadcasters:

G1  To be truthful and accurate on points of fact.

G4  To deal justly and fairly with any person taking part or referred to in any programme.

G6  To show balance, impartiality and fairness in dealing with political matters, current affairs and all questions of a controversial nature.

G7  To avoid the use of any deceptive programme practice in the presentation of programmes which takes advantage of the confidence viewers have in the integrity of broadcasting.

G14  News must be presented accurately, objectively and impartially.

Dealing initially with the four alleged inaccuracies under standard G1, TV3 countered that Roger Mortlock was forced to resign; secondly, 20/20 was the first media organisation to reveal the story; thirdly, the Vietnam War was still in full swing in 1970; and fourthly, Mr Paerata’s letter made it clear that he was told to open fire as though there were Vietcong soldiers in the vicinity.

The complaints under standards G4 and G6 were then considered and, in regard to withholding the information from the Sutherland family, TV3 maintained that it was not the reporter’s duty to inform the Sutherland family of the Army’s deception before broadcasting the story. TV3 added:

[The reporter’s] endeavours were all aimed at revealing the truth, and TV3 is satisfied she carried out her journalistic duties properly.

Mr Mortlock and other soldiers, TV3 reported, were given the opportunity to be interviewed by 20/20 but had declined. In these circumstances, TV3 contended, the programme was balanced.

As for standards G7 and G14, TV3 responded to the complaint about the connection between the reporter and Ernie Paerata, and wrote:

Melanie Reid [the reporter] made it quite clear in the programme that she was connected to Ernie Paerata through a family member – as it happens, her son. Aside from a few words of voice-over mentioning that Mr Paerata was in jail, there was no attempt to plead his cause. It is hard, therefore, to see how the programme could be seen as an attempt to help Mr Paerata.

In regard to Ms Banbury’s privacy complaint, TV3 advised that the footage was included in the broadcast despite the request for anonymity. That decision was taken on the grounds that Ms Banbury was filmed at a ceremony which was open to the public, and at which TV3 had permission to film. Further, the shots of Ms Banbury were not of an intrusive nature, and were integral to the item which was about a cover-up which lasted 28 years. Indeed, TV3 wrote:

The perpetuation of the lie was most graphically demonstrated at the medal ceremony attended by Ms Banbury. It was there that the Army honoured Malcolm Sutherland again, saying he had died in battle at the hands of the enemy. Ms Banbury and Mr Bruce Sutherland received the medal on their late brother’s behalf.

As the final reason for not upholding Ms Banbury’s privacy complaint, TV3 stated:

"20/20" felt that to disguise Ms Banbury's identity by electronic means, with either black shading, a mosaic or some other effect, would confuse the viewers as this is more usually done to disguise people who are allegedly involved in criminality or extreme immorality.

When Ms Curley referred her complaint to the Authority, she said that she found TV3’s response unacceptable on the matters addressed, and pointed out that her complaint about 20/20’s dealings with the Sutherland family had not been answered.

When notified of the referral, TV3 advised the Authority that it had no further comment to make.

The Authority’s Findings

Both Ms Banbury and Ms Curley expressed concern about 20/20’s presence at the Vietnam Veteran’s Reunion in Wellington 1998. Unbeknown to both complainants at that time, 20/20 had attended the Reunion as part of its investigation into a cover-up by the Army of an incident which occurred in Vietnam. It transpired later that 20/20 had discovered that Lance Corporal Malcolm Sutherland, a member of a platoon commanded by (now) Brigadier Mortlock, had been killed by "friendly fire", and had not been killed in action by the enemy.

While at the Reunion, 20/20 had filmed the veterans marching through the streets, and the ceremony where Malcolm Sutherland was remembered with the award of a medal to his brother and sister, which involved a reading of the official account of his death.

Central to Ms Curley’s complaint was her allegation that 20/20’s behaviour to the Sutherland family was deceptive in not advising them of the real reason for its presence at the Reunion. In her privacy complaint, Ms Banbury focused solely on the use of visuals of her at the medal giving ceremony.

Privacy

The Authority has developed Privacy Principles which it applies when determining a complaint which alleges that a broadcaster, in contravention of s.4(1)(c) of the Broadcasting Act, has failed to maintain in programmes and their presentation standards consistent with the privacy of the individual. These principles accept that there is an overriding "public interest" defence. Principles (v) and (vi) record:

v) The protection of privacy includes the protection against the disclosure by the broadcaster, without consent, of the name and/or address and/or telephone number of an identifiable person. This principle does not apply to details which are public information, or to news and current affairs reporting, and is subject to the "public interest" defence in principle (vi).

vi) Discussing the matter in the "public interest" defined as of legitimate concern or interest to the public, is a defence to an individual's claim for privacy.

The Authority notes Ms Banbury’s request to have footage of herself at the Reunion removed from the programme. It also notes the broadcaster’s submission that there would be difficulties in acceding to such a request.

Given the public interest in the current affairs item which 20/20 was investigating at the time of the Reunion, the Authority is in no doubt that any concern about the privacy of the people attending was overruled by the "public interest" in the story which 20/20 was investigating. Accordingly, the Authority concludes that the item did not breach Ms Banbury’s privacy.

Standards

The public interest in a programme which revealed that a prominent figure in the New Zealand Army had deceived his superiors while a platoon commander in Vietnam, and that there had not been any public response when the hierarchy became aware of the cover-up recently, also answers a number of other aspects of Ms Curley’s complaint.

i) The Family Connection

Ms Curley complained that the programme failed to acknowledge adequately the family connection between 20/20’s reporter and one of the members of the platoon.

In relation to this point, Ms Curley also suggested that the presenter had acted inappropriately and had used her position to assist a family connection, without disclosing this to the Sutherland family

The script contained the following statement from the reporter by way of voice-over to some apparently amateur footage of soldiers:

Another young volunteer, Ernie Paerata, has also been profoundly affected. I've never met Ernie but I'm closely connected to him through a family member. I first found out about this whole story when his wife showed me his diaries. I then wrote to him and he began telling me his views from the Asian prison where he’s serving 34 years for drug trafficking.

The Authority notes that Ms Curley’s suggestion is merely a theory for which there was no evidence advanced in the broadcast, or indeed in the complaint. Rather, the broadcast acknowledged the relationship and, in the Authority’s opinion, did so in a way which did not mislead viewers. The Authority does not uphold this aspect of the complaint.

ii) Balance

Ms Curley complained that the programme failed to advance Brigadier Mortlock's account of the events in a balanced way.

The Authority notes that the item reported that Mr Mortlock refused to be interviewed by 20/20. The broadcast nevertheless included a relatively brief extract of an interview he had earlier given 3 News on the issue. TV3 also advised the Authority that 20/20 had sought unsuccessfully to interview other former soldiers who supported Mr Mortlock.

Taking into account 20/20’s efforts, and that the broadcast contained material which advanced both Mr Mortlock’s and the Army’s perspective in the matters disclosed, the Authority does not uphold the aspect of the complaint which alleges imbalance.

iii) Fairness

As a general issue, Ms Curley expressed concern that the broadcast dealt with the Sutherland family unfairly.

She stated that 20/20 filmed the late Malcolm Sutherland's brother and sister at the Reunion. At that time, she said, 20/20 knew the actual cause, and was investigating the cover-up, of the circumstances around Malcolm Sutherland’s death. She claimed that 20/20 worked alongside the Sutherland family at that time and for some months afterwards without telling them of the real reason for its investigation. Ms Curley complained that 20/20 was deceptive, and it had treated the Sutherland family unfairly.

The Authority begins its examination of this aspect by noting that 20/20 was preparing a story about the Army’s deception. It accepts that 20/20’s approach might give rise to issues of journalistic ethics (as Ms Curley in fact points out), but it believes that there were other issues with which 20/20 was dealing on this occasion which take priority over a reporter’s usual obligation to keep contributors fully informed of the nature of the programme being prepared.

The issue under investigation, and the material disclosed in the broadcast, involved a cover-up. Just how far that cover-up extended within the ranks of the Army would be known only to its perpetrators. Given Brigadier Mortlock’s rank both at the time of the incident in Vietnam, and his rank when the investigation was under way, it was legitimate for 20/20 to continue its investigation, including the filming of the award ceremony, without disclosing its hand at that stage.

The Authority accepts, as a general proposition, that it is desirable for broadcasters to advise contributors to programmes of the reasons why their contribution is sought. Nevertheless, there will be exceptions to this general rule, particularly where journalists are investigating political scandals, frauds or cover-ups which should be exposed in the public interest.

The Authority understands how members of the Sutherland family may feel deceived by the filming on this occasion because of the programme maker’s foreknowledge. It also notes that 20/20 took care to deal with the family in a courteous manner and to portray them in a positive fashion

There are competing pressures on a news organisation in a situation such as this. It must balance the interest of the individual against the other interests, including the public interest in a full investigation and reporting of any impropriety within an organisation.

In the circumstances of this case, the Authority concludes that 20/20 handled this aspect of the matter in an appropriate way and this part of the complaint is not upheld.

iv) Accuracy

Turning to Ms Curley’s complaint that the item was inaccurate on four points, the Authority decides that the broadcast did not breach standard G1. Briefly, the Authority considers first that the use of the term "sacking" acceptable given the circumstances; secondly, the Authority accepts that TV3's inquiries exposed the cover-up even if it did not make the first actual public revelation of the events; thirdly, that it was a matter of opinion whether the Vietnam war in 1970 was in full swing or winding down; and fourthly, Mr Paerata's statement was equivocal about what he was to fire at when the incident occurred. The Authority finds therefore that the item was not inaccurate.

v) Other standards

The Authority has not considered the complaint under standard G7, as it confines this provision to deception involving the use of technology. That was not an issue on this occasion, and the deception referred to by Ms Curley has been fully taken into account in the Authority's consideration of the complaint under standards G4 and G6. Because the issues raised under standard G14 are included on this occasion under standards G1, G4 and G6, that standard has not been considered separately.

Summary

In summary, the Authority considers that the item was neither unbalanced, nor inaccurate. Therefore, it is neither in breach of standard G1 nor standard G6. It believes the essence of Ms Curley’s complaint was encapsulated under standard G4’s requirement for just and fair treatment, and it reiterates its finding that, on balance, the broadcast did not treat the Sutherland family unfairly.

In addition, for the reasons made plain above, the Authority does not uphold the complaint that the broadcast breached Ms Banbury’s privacy.

For the reasons above, the Authority declines to uphold the complaints.

Signed for and on behalf of the Authority

Sam Maling
Chairperson
14 June 1999

Appendix

The following correspondence was received and considered when the Authority determined Ms Banbury’s complaint:

1. Ms Jill Banbury’s Privacy Complaint and attachments to the Broadcasting Standards
   Authority – 17 March 1999

2. TV3 Network Services Ltd’s Response to the Authority – 13 April 1999

3. Ms Banbury’s Final Comment – 26 April 1999

The following correspondence was received and considered when the Authority determined Ms Curley’s complaint:

i) Ms Jo (Anne) Curley’s Formal Complaint to TV3 Network Services Ltd – 2 March 1999

ii) TV3’s Response to Ms Curley – 31 March 1999

iii) Ms Curley’s Referral to the Broadcasting Standards Authority – 19 April 1999

iv) TV3’s Response to the Authority – 26 April 1999