BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaints under section 8(1)(a) of the Broadcasting Act 1989
3 News – item about file sharing software – showed images from a snuff movie three times during short item – woman seen begging not to be filmed with a gun held to her head – gunshot heard on one occasion but with no image – allegedly in breach of good taste and decency, law and order, privacy, fairness, children’s interests and violence standards – broadcaster upheld complaints under Standard 1, spoke to news staff and broadcast on-air apology – complainants dissatisfied with decision and action taken

Findings
Standard 2 (law and order) – broadcaster did not encourage viewers to break the law or glamorise the criminal activity shown – not upheld

Standard 3 (privacy) – irrespective of whether the snuff movie was real or fake, no breach of privacy – not upheld

Standard 6 (fairness) – unable to determine whether woman treated fairly – decline to determine

Standard 9 (children’s interests) – images likely to disturb and alarm children – broadcaster not mindful of child viewers – upheld

Standard 10 (violence) – images disturbing and repeated gratuitously – broadcaster did not exercise sufficient care and discretion – upheld

Action taken – on-air apology and discussion with news staff was appropriate and sufficient – not upheld

This headnote does not form part of the decision.

Broadcast

[1] On 10 June 2006 at 6pm on TV3, 3 News broadcast an item about the dangers of using file sharing software. The item warned that a consumer had inadvertently downloaded a snuff movie, and it showed a short clip from the movie. The head and shoulders of a woman were shown, with a gun pointing at her head. The woman was injured and distressed, and was begging not to be filmed. This footage was shown three times during the two minute item, and on one occasion the soundtrack to the movie continued playing without the images, and the sound of a gunshot was heard.

Complaints

[2] Simon Boyce, Kathryn Nevell and Tony Simmers made separate formal complaints about the item to CanWest TVWorks Ltd, the broadcaster.

[3] Mr Boyce contended that the item had breached Standards 1, 2, 3, 6 and 10 of the Free-to-Air Television Code. He stated that Standard 1 (good taste and decency) had been breached because no warning had been given that the victim in the snuff movie would be shown. Mr Boyce was of the view that Standard 2 (law and order) had been breached because the woman had been shown pleading not to be filmed while being murdered, and was therefore part of a crime. He also contended that the footage was in breach of the woman’s privacy and was unfair to her. Finally, Mr Boyce argued that it had not been necessary to show the footage and therefore it had breached Standard 10 (violence).

[4] Ms Nevell also expressed her concern that no warning had screened prior to the item. She contended that it had breached Standards 1, 9 and 10, and argued that it was not necessary to have shown the footage because it “added nothing to the story, which was of minor news value in any case”. Ms Nevell wrote that “to think children watched this extreme violence makes me very angry”, and she suggested CanWest make a significant donation to Women’s Refuge.

[5] Mr Simmers also alleged that the item “did not observe acceptable standards of good taste or decency with respect to its portrayal of violence and particularly its suitability for children”. He said:

There was no prior warning that the content might offend, but even if that had been given, the lengthy and repeated showing of the video was gratuitous and deeply disturbing. The inclusion of the sound of the gunshot was unconscionable.

[6] Mr Simmers stated that he was deeply concerned that his children had seen the item, and he submitted that “the continued employment of the staff involved should be reviewed”.

Standards

[7] The following standards from the Free-to-Air Television Code of Broadcasting Practice were nominated by the complainants:

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 2 Law and Order

In the preparation and presentation of programmes, broadcasters are responsible for maintaining standards which are consistent with the maintenance of law and order.

Standard 3 Privacy

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

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 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 Complainants

[8] CanWest upheld the complaints under Standard 1 (good taste and decency). It said:

The Standards Committee has no hesitation in finding that the graphic content should have been preceded by a clear warning that the content was likely to disturb and offend viewers. The Committee does not consider that the images were suitable to screen in the early evening news programme.

[9] The broadcaster noted that it had already broadcast an on-air apology for the error which allowed the images to screen. It said that the staff who had been involved in the preparation of the item had been “counselled and given a strong reminder that they need to exercise care and discretion when dealing with graphic and upsetting material in the early evening programme”.

[10] CanWest considered that it had adequately addressed the complainants’ concerns in relation to the other standards as part of its upholding the complaint under Standard 1.

Referrals to the Authority

[11] Dissatisfied with the broadcaster’s response, Mr Boyce, Ms Nevell and Mr Simmers all referred their complaints to the Authority under s.8(1)(a) of the Broadcasting Act 1989.

Mr Boyce’s referral

[12] Mr Boyce considered that the broadcaster should have addressed his complaint under Standard 10 (violence). He said that he was unsure whether CanWest’s response – that the item should have been preceded by a warning and should not have been shown in the early evening news – meant that the item could have been shown in the late news when preceded by a warning. Mr Boyce also submitted that the action taken by CanWest in speaking to news staff was insufficient, and stated that he had not seen the on-air apology as he no longer watched 3 News.

Ms Nevell’s referral

[13] Ms Nevell stated that she was dissatisfied with CanWest’s response for a number of reasons. First, she stated that its summary of her complaint was inaccurate; it was not only the lack of a warning that concerned her. In Ms Nevell’s opinion, the footage was too violent to have been aired at all, and she was concerned at the implication that it might have been appropriate to air the footage at a later time. Second, Ms Nevell contended that the action taken by CanWest was inadequate, and she noted that CanWest had not mentioned her idea of a donation to Women’s Refuge.

[14] Third, Ms Nevell considered that CanWest should have addressed her complaint under Standards 9 and 10 in addition to Standard 1. The item, she said, showed “a whole new level of inhumanity and degradation” that she had hoped never to witness.

Mr Simmers’ referral

[15] Mr Simmers also stated that the lack of a warning was not the focus of his complaint, nor was it that his children had seen the images. Rather, he said that his concern was “the gratuitous repetition of a violent sexual attack, including the inexplicable inclusion of the gunshot”. He said that he was dissatisfied with CanWest’s response on the following grounds:

• There was not adequate recognition of what he perceived to be the seriousness of the breach. He considered that an apology was insufficient, and that “a penalty of some sort” was warranted.
• CanWest’s response had not acknowledged that the repetition of the footage, and the inclusion of the still shots, was gratuitous. He asserted that the broadcaster had made a conscious decision to screen the images.

[16] Mr Simmers considered that there were grounds for a complaint under Standard 2 (law and order) because the footage had glamorised criminal activity through salacious repetition of the clip. He also contended that the privacy of the murdered woman had been breached. He noted that the identity of the man who had inadvertently downloaded the clip had been protected, but the identity of the woman in the footage had not.

Broadcaster’s Response to the Authority

[17] In its response, CanWest advised that the following apology had been broadcast on 3 News on 13 June 2006:

On Saturday 3 News ran a story about the dangers of file sharing on the internet. A Christchurch man had been shocked when he inadvertently downloaded what seemed to be a snuff movie instead of a music file. The story carried graphic images which caused offence to some viewers. 3 News accepts that it made an error of judgment in showing those images and apologises to all viewers who found the story upsetting.

[18] The broadcaster said that it had subsumed the complainants’ concerns about other standards into its decision to uphold the complaint under Standard 1 (good taste and decency). In light of the uphold “unreservedly made under Standard 1”, the broadcaster wrote that it had not deemed it necessary to “go on and make separate uphold findings under other standards”.

[19] CanWest noted that the Director of News had been closely involved with its investigation of the complaints, and had himself attended to the “counselling” that was referred to in its decision. The staff involved were keenly aware that they had acted in contravention of the Television Code, it said, and that it was a serious breach. CanWest contended that it had dealt promptly and effectively with the error.

[20] The broadcaster explained that both the reporter and the producer in this case were extremely experienced, and it appeared that in viewing the material repeatedly they had become “inured to the impact of the images and mistakenly thought they had taken out enough of the material to make it acceptable to show”. The importance of a fresh perspective had been impressed upon them, CanWest said.

[21] CanWest then turned to consider the individual referrals. 

Mr Boyce’s referral

[22] Noting Mr Boyce’s submission that the item should not have run at all, the broadcaster contended that the item itself, about file sharing software, had considerable merit. CanWest also considered that the question of whether the images could have screened with a warning was “academic in the circumstances”, as it had determined that they were not suitable for the early evening news.

[23] In relation to Standard 10 (violence), CanWest reiterated its belief that Mr Boyce’s concerns had been adequately addressed in its consideration of Standard 1 (good taste and decency). A finding under Standard 10, it said, would have led to no different result than under the provisions of Standard 1.

[24] CanWest suggested that the further information it had provided might address Mr Boyce’s concern that the action it had taken was insufficient.

Ms Nevell’s referral

[25] CanWest submitted that it was not appropriate to speculate about whether the images could have run with a warning (or without a warning) in the later news programme. The short point was that there was no warning, and the images were not appropriate for the early evening news, it said.

[26] The broadcaster noted that there was no provision for a penalty to be paid to Women’s Refuge, and it believed that it had taken appropriate action to acknowledge and apologise for the error.

Mr Simmers’ referral

[27] Noting Mr Simmers’ concern that it had not considered the impact of the repetition of the footage, CanWest said that it had not addressed that issue because it had upheld the breach based on just one showing of the footage. There was, it said, no “degree of uphold” available to reflect the impact of repetition in such circumstances.

[28] CanWest considered that the action taken in relation to staff discipline had been appropriate.

Complainants’ Final Comments

[29] Mr Boyce reiterated his belief that CanWest had “screened the immediate prelude to a murder, and used this as part of a very minor story”. He questioned how the news staff could have become “inured” to the footage.

[30] Ms Nevell maintained that CanWest’s apology was insufficient, and she urged the Authority to consider imposing a fine or making the broadcaster donate to a suitable charity.

[31] Mr Simmers strongly disagreed with the broadcaster’s assertion that it had “...acted responsibly and taken adequate steps to address the breach of the Code”. He noted the Authority’s power to order a broadcaster to stop broadcasting or refrain from advertising for up to 24 hours, and submitted that the Authority should consider this penalty.

Further Response Requested by the Authority

[32] The Authority referred the complaint back to CanWest to give the broadcaster an opportunity to comment on the other standards nominated by the complainants. CanWest provided the responses below.

Standard 2 (law and order)

[33] CanWest noted that the Authority had stated on a number of occasions that the intent behind Standard 2 was to prevent broadcasts that encourage viewers to break the law or otherwise promote, glamorise or condone criminal activity (see for example Decision No. 2006-051). It did not consider that the broadcast encouraged viewers to break the law, and it contended that no criminal activity had been shown. CanWest found no breach of Standard 2.

Standard 3 (privacy)

[34] The broadcaster considered that the woman in the video would have been identifiable to people other than her close friends and family. Looking at whether any private facts were disclosed, CanWest stated that it could not determine whether or not the movie was real. However, it said, if the footage was real then the “victim” was deceased and therefore had no right to privacy. If the woman was an actor, the broadcaster maintained, then no facts were disclosed and Standard 3 had no application. CanWest found that the privacy standard was not breached.

Standard 6 (fairness)

[35] The broadcaster reiterated that it was unable to tell whether the footage was real or not. Accordingly, the broadcaster said that it could not determine the fairness complaint.

Standard 9 (children’s interests)

[36] CanWest upheld the complaint under Standard 9 for the same reasons as it upheld the complaint under Standard 1 (see paragraphs [8]–[10] above). It stated that a warning should have preceded the content which was not suitable to screen in the early evening news programme. It noted that 3 News had broadcast an on-air apology for the breach on 13 June 2006.

Standard 10 (violence)

[37] For the same reasons given above, CanWest upheld the complaints under Standard 10.

Further Information from the Complainants

[38] Mr Boyce disputed CanWest’s argument that no criminal activity had been shown, noting that the item was about the murder of a woman. He added:

TVWorks now seriously expect us to accept that they were not certain if the footage was real or not. This is despite the fact that the item was presented as being real, and was constructed on that basis, including having the gunshot.

[39] Ms Nevell maintained that the action taken by CanWest was insufficient, noting that CanWest had accepted that the item was in breach of at least three standards. She suggested that a financial sanction would be appropriate.

Authority's Determination

[40] 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.

Procedural matter

[41] The Authority notes that, in his referral, Mr Simmers asked the Authority to consider his complaint under Standards 1, 2, 3, 9 and 10. Because the complaints about Standards 2 and 3 did not form part of Mr Simmers’ original complaint to the broadcaster, the Authority has no jurisdiction to consider those aspects of his referral. However, it notes that Mr Boyce raised these standards in his formal complaint, and therefore they are considered below.

Standard 9 (children’s interests)

[42] The Authority finds that the broadcast, which occurred during children’s normally accepted viewing times, breached Standard 9 (children’s interests). Although news programmes are unclassified, the Free-to-Air Television Code requires broadcasters to be mindful that young people may be among the viewers of the early evening news.  

[43] In the Authority’s view, the item contained violent and shocking images which would have been likely to disturb and alarm child viewers. Further, there was no warning preceding the item which could have enabled parents to exercise discretion. Taking into account all the circumstances, the Authority considers that CanWest failed to consider the interests of child viewers on this occasion.

Standard 10 (violence)

[44] The Authority also upholds the complaints under Standard 10 (violence), which states that broadcasters must exercise care and discretion when dealing with the issue of violence. The Authority considers that the images shown on this occasion were disturbing, and were repeated gratuitously. The Authority is of the view that in broadcasting the footage during a news item at 6pm, CanWest failed to exercise sufficient care and discretion.

Standard 2 (law and order)

[45] The Authority has stated on a number of occasions that the intent behind the law and order standard is to prevent broadcasts that encourage viewers to break the law, or otherwise promote, glamorise or condone criminal activity (see for example Decision No. 2006-051). On this occasion, the Authority finds that the item did not encourage viewers to break the law, nor did it glamorise or condone the criminal activity that was shown. Accordingly, the Authority finds no breach of Standard 2.

Standard 3 (privacy)

[46] The Authority is unable to determine whether the footage shown in the news item was a genuine snuff movie, or whether it was staged. It accepts CanWest’s argument that, if the movie was real, the woman is now deceased and, as a result, she has no right to privacy.

[47] Further, the Authority has stated in two recent decisions that the broadcast of something which is untrue cannot constitute a breach of privacy (see Decision Nos. 2005-049 and 2006-078).  Accordingly, if the movie was not genuine, no private “facts” were revealed about the woman. The Authority declines to uphold the privacy complaint. 

Standard 6 (fairness)

[48] The Authority cannot determine whether the woman portrayed in the footage was treated fairly, because it is unable to establish whether the snuff movie was real or fake. Accordingly, the Authority declines to determine the Standard 6 complaint.

Standard 1 (good taste and decency) – Action taken

[49] After upholding the complaints under Standard 1 (good taste and decency), CanWest made an on-air apology for the breach and counselled the staff involved. It gave staff a strong reminder about exercising “care and discretion when dealing with graphic and upsetting material in the early evening [news] programme”.

[50] The Authority finds that the action taken by CanWest was appropriate and sufficient in all the circumstances.  In the Authority’s view, the immediate apology to viewers and the discussion with news staff demonstrates that the broadcaster took a responsible and serious approach in respect of this matter. Accordingly, it declines to uphold the action taken complaint.

Bill of Rights

[51] 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 the Authority upholds the complaint that the broadcast by CanWest TVWorks Ltd of an item on 3 News breached Standards 9 and 10 of the Free-to-Air Television Code of Broadcasting Practice.

[52] Having upheld a complaint, the Authority may make orders under sections 13 and 16 of the Broadcasting Act 1989. The Authority notes that CanWest only upheld the complaints as a breach of Standard 1, and the Authority has upheld the complaint under additional standards. However, it is of the view that the action taken by CanWest was responsible and appropriate in all the circumstances. The Authority declines to impose an order, as it considers that the publication of its decision is sufficient on this occasion.

Signed for and on behalf of the Authority

Joanne Morris
Chair
20 November 2006

Appendix

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

1           Simon Boyce’s formal complaint – 11 June 2006

2          CanWest’s decision on the formal complaint – 19 June 2006

3          Mr Boyce’s referral to the Authority – 22 June 2006

4          CanWest’s response to the Authority – 21 July 2006

5          Mr Boyce’s final comment – 27 July 2006

6          Further information provided by CanWest – 11 September 2006

7          Further submissions by Mr Boyce – 25 September 2006

1           Kathryn Nevell’s formal complaint – 11 June 2006

2          CanWest’s decision on the formal complaint – 19 June 2006

3          Ms Nevell’s referral to the Authority – 3 July 2006

4          CanWest’s response to the Authority – 21 July 2006

5          Ms Nevell’s final comment – 4 August 2006

6          Further information provided by CanWest – 11 September 2006

7          Further submissions from Ms Nevell – 2 October 2006

1           Tony Simmers’ formal complaint – 12 June 2006

2          CanWest’s decision on the formal complaint – 15 June 2006

3          Mr Simmers’ referral to the Authority – 9 July 2006

4          CanWest’s response to the Authority – 21 July 2006

5          Mr Simmers’ final comment – 2 August 2006

6          Further information provided by CanWest – 11 September 2006