BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1B)(b)(i) and 8(1B)(b)(ii) of the Broadcasting Act 1989
One News – two items covering the murder trial of Clayton Weatherston – first item contained footage of Mr Weatherston in court describing his attack – second item included the prosecutor saying the word “fucking” three times – allegedly in breach of good taste and decency, fairness, discrimination and denigration, responsible programming, children’s interests and violence standards

Findings
13 July item

Standard 1 (good taste and decency) – details of attack given by Mr Weatherston were explicit – item should have been preceded by a warning – upheld

Standard 9 (children’s interests) – item should have been preceded by a warning – broadcast during children’s normally accepted viewing times – broadcaster did not adequately consider the interests of child viewers – upheld

Standard 10 (violence) – item contained explicit details of violence – broadcaster did not exercise sufficient care and discretion – upheld

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

Standard 7 (discrimination and denigration) – standard does not apply to individuals – not upheld

Standard 8 (responsible programming) – One News was an unclassified news programme – standard not applicable – not upheld

14 July item

Action taken – apology appropriate and sufficient in the circumstances – not upheld

This headnote does not form part of the decision.

Broadcast

One News 13 July

[1]   An item on One News, broadcast at 6pm on Monday 13 July 2009, covered the day’s events at the trial of Clayton Weatherston, who was accused of murdering Sophie Elliott. The presenters introduced the item by saying:

The university tutor who killed his former student and girlfriend has given his version of what happened in her bedroom that day.

Clayton Weatherston told a jury in Christchurch what made him lose control and stab Sophie Elliott more than 200 times. He also gave more evidence about their relationship. Weatherston’s admitted manslaughter, but is denying murder.

[2]   A reporter gave a summary of what Mr Weatherston had said in court that day including why he had gone to Ms Elliott’s house and the events which allegedly led him to lose control. Close-up footage of Mr Weatherston giving evidence about what happened in his victim’s bedroom was shown.

[3]   At one point during the footage, Mr Weatherston stated:

...The most vivid recall I have next is of standing or kneeling over her with a pair of scissors in my right hand, and um, the scissors had gone through the front of her throat and I can feel a crunching sound, like it’s against her spine.

One News 14 July

[4]   An item the following evening on One News, broadcast at 6pm on Tuesday 14 July 2009, covered the day’s events at the trial.

[5]   The item included footage of the Crown prosecutor questioning Mr Weatherston about why he had mutilated Ms Elliott’s body after killing her. The footage also included the Crown prosecutor reading an extract from Ms Elliott’s diary which said:

Then when I went to leave, he went absolutely psycho, he told me I’m fucking horrible, I’m a fucking horrible person, everyone hates me, I’m fucking ugly, he’s never loved me.

Complaint

[6]   Sharon Coates made a formal complaint to Television New Zealand Ltd, the broadcaster, alleging that the two news items featuring Mr Weatherston had breached broadcasting standards.

[7]   The complainant said that Mr Weatherston’s evidence was “sick and disgusting” and that he had gone into graphic detail about the way he killed Ms Elliott including the sounds he heard as he stabbed her.

[8]   Ms Coates noted that neither item had been preceded by a warning and that they had been broadcast during children’s normally accepted viewing times. She stated that her children had been upset by the contents of the item containing Mr Weatherston’s description of stabbing Ms Elliott and that she had turned her television off. She argued that this material had breached standards relating to good taste and decency, responsible programming, children’s interests and violence.

[9]   The complainant argued that Mr Weatherston had been allowed to drag Ms Elliott’s reputation “through the mud” and make accusations about her that she could not respond to, which she believed breached standards relating to fairness, discrimination and denigration and responsible programming.

[10]   Ms Coates also argued that the broadcaster had put Mr Weatherston in the “limelight” through its coverage of his evidence. She noted that, on the episode of One News broadcast on the evening of 15 July, the broadcaster had apologised for not editing out the word “fucking” when showing the footage of the Crown prosecutor reading out an extract from Ms Elliott’s diary. However, she considered that “the whole broadcast should not have gone to air”.

Standards

[11]   TVNZ assessed the complaint under Standards 1, 6, 7, 8, 9 and 10 and guidelines 1a, 1b, 9a and 10d of the Free-to-Air Television Code of Broadcasting Practice. These provide:

Standard 1 Good Taste and Decency

Broadcasters should observe standards of good taste and decency.

Guidelines

1a Broadcasters will take into account current norms of good taste and decency bearing in mind the context in which any content occurs and the wider context of the broadcast e.g. programme classification, target audience, type of programme and use of warnings etc.

1b The use of visual and verbal warnings should be considered when content is likely to disturb or offend a significant number of viewers except in the case of news and current affairs, where verbal warnings only will be considered. Warnings should be specific in nature, while avoiding detail which may itself distress or offend viewers.

Standard 6 Fairness

Broadcasters should deal justly and fairly with any person or organisation taking part or referred to.

Standard 7 Discrimination and Denigration

Broadcasters should not encourage discrimination against, or denigration of, any section of the community on account of sex, sexual orientation, race, age, disability, occupational status, or as a consequence of legitimate expression of religion, culture or political belief.

Standard 8 Responsible Programming

Broadcasters should ensure programmes:

• are appropriately classified
• display programme classification information
• adhere to timebands in accordance with Appendix 1
• are not presented in such a way as to cause panic, or unwarranted alarm or undue stress; and
• do not deceive or disadvantage the viewers.

Standard 9 Children’s Interests

During children’s normally accepted viewing times (see Appendix 1), broadcasters should consider the interests of child viewers.

Guideline 9a

Broadcasters should be mindful of the effect any programme or promo may have on children during their normally accepted viewing times – usually up to 8.30pm – and avoid screening material that would disturb or alarm them.

Standard 10 Violence

Broadcasters should exercise care and discretion when dealing with the issue of violence.

Guideline 10d

In news, current affairs and factual programmes, where disturbing or alarming material is often shown to reflect a world in which violence occurs, the material should be justified in the public interest:

• editors and producers must use judgement and discretion in deciding the degree of graphic detail to be included in news programmes when children are likely to be watching;
• warnings within news programmes should be used when appropriate;
• when executions and assassinations are shown the coverage should not be repeated gratuitously.

Broadcaster's Response to the Complainant

[12]   At the outset, the broadcaster acknowledged that the word “fucking” should have been edited out of the 14 July item. It pointed out that it had apologised to viewers the next night, with its presenter saying:

Last night our story on the Weatherston trial was broadcast containing foul language heard in the court room. That version of the story should never have gone to air and the expletives should have been removed. Our normal editorial processes were not followed. Simply put, it shouldn’t have happened. We unreservedly apologise for that mistake.

[13]   TVNZ upheld the complaint that the inclusion of the work “fucking” in the 14 July item breached Standards 1 (good taste and decency) and 9 (children’s interests).

[14]   With respect to the rest of the content contained in the items broadcast on 13 and 14 July, TVNZ argued that One News had an adult target audience and noted that the Authority had previously found that young children were unlikely to watch news programmes unsupervised.

[15]   Turning to consider Standard 1, the broadcaster said that Mr Weatherston’s case had generated a large amount of public interest and had been widely reported by all media throughout the duration of his trial. It contended that it was “not alone” in its reporting of the details of Clayton Weatherston’s testimony and defence.

[16]   TVNZ argued that, when reporting on court proceedings, news and current affairs outlets had an obligation and responsibility to provide a fair and accurate portrayal of what was said in court. Further, it contended that broadcasting the courtroom footage of the trial enabled informed debate on the wider issue of the provocation defence in the New Zealand legal system.

[17]   The broadcaster considered that the item’s lengthy introduction gave viewers adequate warning of the type of material that was to be included in the footage of Mr Weatherston giving evidence.

[18]   TVNZ stated that news, current affairs and factual programming often contained disturbing or alarming material that reflected a world in which violence occurred, but that the material needed to be justified in the public interest.

[19]   The broadcaster pointed out that the footage was part of the trial and contended that it was important that New Zealanders understood the offensiveness of Mr Weatherston’s crime. It considered that sanitising or censoring the evidence would have distorted the issue. It stated that the editorial decision to include the footage was not taken lightly, but its senior editorial staff considered that the material was justifiable in the public interest.

[20]   TVNZ argued that, in the context of a news and current affairs broadcast following a high-profile court case of a man accused of murder, the material contained in the item did not exceed the bounds of good taste and decency.

[21]   However, the broadcaster said that its news department acknowledged that, throughout the reporting of Mr Weatherston’s trial, verbal warnings prior to such footage could have been better utilised. It stated that its news staff had learnt from the experience and that more robust processes had now been put into place to ensure appropriate warnings were placed at the start of footage with the potential to disturb.

[22]   Dealing with fairness, the broadcaster stated that the Authority had determined in previous decisions that the fairness standard did not apply to deceased people. It therefore declined to uphold the Standard 6 complaint.

[23]   Turning to Standard 7, TVNZ argued that the standard was intended to prevent discrimination and denigration against a particular group of people, as opposed to individuals. It considered the standard was not applicable in the circumstances.

[24]   With respect to Standard 8, the broadcaster pointed out that One News was an unclassified news programme, which meant that it was not required to display programme classification ratings. It reiterated that the item’s lengthy introduction gave people who did not wish to see Mr Weatherston giving evidence time to avoid the material. It declined to uphold the responsible programming complaint.

[25]   Looking at Standard 9 (children’s interests), TVNZ reiterated that One News had an adult target audience and that the Authority had previously stated that unaccompanied young children were unlikely to watch news programmes. It contended that there was an expectation that parents would exercise discretion around the viewing of news with their children, because the nature of news meant that it would occasionally deal with matters which contained gruesome details.

[26]   The broadcaster reiterated its contention that the lengthy introduction to both items would have provided adequate warning to parents and caregivers about the items’ contents. Further, it argued that the Weatherston case was widely known by the time the items went to air, and the basic facts of the case had been widely reported.

[27]   TVNZ argued that the combination of the items’ introduction and the public knowledge surrounding the case meant that sufficient indications were given that the material might not have been suitable for younger viewers. The broadcaster declined to uphold the children’s interests complaint.

[28]   Dealing with Standard 10 (violence), the broadcaster reiterated its comments made under its consideration of Standard 1. It noted that guideline 10d to the violence standard stated that violent material contained in news items had to be justified in the public interest. TVNZ stated that, while warnings could have been better utilised during the coverage of the trial, the contents of both items was in the public interest. It declined to uphold the complaint that the items breached Standard 10.

Referral to the Authority

[29]   Dissatisfied with TVNZ’s response, Ms Coates referred her complaint to the Authority under section 8(1B)(b)(i) and 8(1B)(b)(ii) of the broadcasting Act 1989.

Authority's Determination

[30]   The members of the Authority have viewed recordings of the broadcasts complained about and the item broadcast on 15 July 2009 that contained the apology from TVNZ, and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.

[31]   The Authority is uncertain whether Ms Coates intended to refer her complaint concerning the use of the word “fucking” in the 14 July item. For the record, it considers that the action taken by the broadcaster in apologising to viewers for the use of the expletive was appropriate and sufficient in the circumstances. The Authority now turns to consider the 13 July item.

Standard 1 (good taste and decency)

[32]   When the Authority considers an alleged breach of Standard 1, it takes into account the context of the broadcast. On this occasion, the relevant contextual factors include:

• One News was an unclassified news programme

• the item was broadcast at 6pm

• the item was not preceded by a warning

• One News was broadcast during children’s normally accepted viewing times

• young children are unlikely to watch news programmes unsupervised.

[33]   At the outset, the Authority accepts that there was a high level of public interest in Mr Weatherston’s trial and that it had received significant publicity across all media in New Zealand. Further, it accepts that news items are required to be a faithful and accurate record of events.

[34]   However, the Authority considers that viewers would have been unprepared for the level of explicit detail that this item contained. It points out that Mr Weatherston’s testimony was highly unusual given that he had admitted killing Ms Elliott, and was describing in detail the manner in which he had done so. The item’s introduction was insufficient to signpost the grisly and unpleasant details relayed by Mr Weatherston.

[35]   Three members of the Authority (Joanne Morris, Paul France and Tapu Misa) consider that the item could have been broadcast during the early evening news if it had been preceded by a specific verbal warning advising viewers of the explicit content it contained, in accordance with guideline 1b.

[36]   One member of the Authority (Mary Anne Shanahan) would have upheld the complaint even if the item had included a warning. Ms Shanahan is of the view that the details were inappropriate for broadcast during the 6pm news, but could have been included in the late news with a warning.

[37]   However, having unanimously reached the conclusion that the item threatened standards of good taste, the Authority must now decide whether to uphold the complaint as a breach of Standard 1.

[38]   The Authority acknowledges that upholding the Standard 1 complaint would place a limit on the broadcaster’s right to freedom of expression, which is protected by section 14 of the New Zealand Bill of Rights Act 1990. In Lotriet and TVWorks Ltd,¹ the Authority determined that upholding a complaint under Standard 1 would be prescribed by law and a justified limitation on the broadcaster’s right to freedom of expression as required by section 5 of the Bill of Rights Act. In the Authority’s view, the primary objective of Standard 1 is to protect against the broadcast of sexual content, violent material, and language that exceeds current norms of good taste and decency in the context in which it is shown.

[39]   With that in mind, the Authority must consider whether it would be a reasonable and proportionate limit on TVNZ’s freedom of expression to uphold a breach of Standard 1 on this occasion. It finds that upholding a breach of the good taste and decency standard on this occasion would ensure that broadcasters exercise appropriate discretion when items contain explicit or potentially disturbing content. For three members of the Authority (see paragraph [35] above) this would have meant including a warning advising viewers of the explicit content the item contained. In this respect, upholding this complaint clearly promotes the objective of Standard 1, and therefore places a justified and reasonable limit on TVNZ’s freedom of expression. The Authority upholds the complaint that the item breached Standard 1.

Standard 9 (children’s interests)

[40]   Standard 9 requires broadcasters to consider the interests of child viewers during their normally accepted viewing times – usually up to 8.30pm. As stated above in the Authority’s consideration of good taste and decency, the broadcast breached Standard 1 due to the graphic content it contained. Although One News is an unclassified programme, the Authority has acknowledged that children sometimes view such programmes in the company of their parents.

[41]   Three members of the Authority (Joanne Morris, Paul France and Tapu Misa) consider that the item could have been broadcast if it had been preceded by a warning about its content, which would have enabled parents to decide whether or not they wanted their children to watch.

[42]   As above in paragraph [36], one member of the Authority (Mary Anne Shanahan) would have upheld the Standard 9 complaint even if the broadcaster had included a warning. Ms Shanahan is of the view that the details were inappropriate for broadcast during the 6pm news even if child viewers were accompanied by a parent or guardian.

[43]   Accordingly, the Authority unanimously finds that the broadcaster did not adequately consider the interests of child viewers in the broadcast of this item.

[44]   Having reached this conclusion, the Authority must now decide whether to uphold the complaint as a breach of Standard 9.

[45]   The Authority acknowledges that upholding the children’s interests complaints would place a limit on the broadcaster’s right to freedom of expression. In Harrison and TVNZ², the Authority determined that upholding a complaint under Standard 9 would be prescribed by law and a justified limitation on the broadcaster’s right to freedom of expression as required by section 5 of the Bill of Rights Act. In that decision, the Authority described the objective of Standard 9 in the following terms:

In the Authority’s view, the purpose of the children’s interests standard is to protect children from broadcasts which might adversely affect them.

[46]   With that in mind, the Authority must consider whether it would be a reasonable and proportionate limit on TVNZ’s freedom of expression to uphold a breach of Standard 9 on this occasion. It finds that upholding a breach of the children’s interests standard would ensure that broadcasters do not broadcast graphic content that is likely to disturb child viewers during their normally accepted viewing times without utilising appropriate warnings. In this respect, upholding this part of the complaint clearly promotes the objective of Standard 9, and therefore places a justified and reasonable limit on TVNZ’s freedom of expression.

[47]   Accordingly, the Authority upholds the complaint that the item breached Standard 9.

Standard 10 (violence)

[48]   Standard 10 requires broadcasters to exercise care and discretion when dealing with the issue of violence. Guideline 10d refers to the use of warnings within news programmes when appropriate. In the Authority’s view, the item contained a graphic description of Mr Weatherston’s attack on Ms Elliott and, as such, it dealt with the issue of violence.

[49]   As discussed above, the Authority has unanimously found that the item contained material which breached standards of good taste and decency and that the broadcaster did not consider the interests of child viewers. For the same reasons, the Authority finds that the broadcaster did not exercise sufficient care and discretion when dealing with the issue of violence.

[50]   Having reached this conclusion, the Authority must now decide whether to uphold the complaint as a breach of Standard 10.

[51]   The Authority acknowledges that upholding the Standard 10 complaint would place a limit on the broadcaster’s right to freedom of expression, which is guaranteed by section 14 of the New Zealand Bill of Rights Act 1990. In Knight and TVWorks Ltd,³ the Authority determined that upholding a complaint under Standard 10 would be prescribed by law and a justified limitation on the broadcaster's right to freedom of expression as required by section 5 of the Bill of Rights Act. In that decision the Authority described the objective of Standard 10 as follows:

...the violence standard exists to ensure that broadcasters use care and discretion to exclude unsuitable violent material and to promote the use of warnings where necessary to protect viewers – particularly child viewers.

[52]   The Authority has found that the item’s introduction would not have prepared viewers for its graphic content, and that child viewers would have been disturbed by the item even in the company of a parent or guardian. In these circumstances, the Authority considers that upholding the complaint clearly promotes the objective of Standard 10 as outlined above, and would be a reasonable and proportionate limit on TVNZ’s freedom of expression. Accordingly, the Authority upholds the Standard 10 complaint.

Standard 6 (fairness)

[53]   The complainant argued that Mr Weatherston had been allowed to drag Ms Elliott’s reputation “through the mud” and make accusations about her to which she could not respond.

[54]   In Dr Kiro and TVNZ,⁴ the Authority determined that Standard 6 did not apply to deceased people. Accordingly, the Authority finds that the fairness standard does not apply in the circumstances and it declines to uphold the fairness complaint.

Standard 7 (discrimination and denigration)

[55]   Standard 7 states that broadcasters should not encourage discrimination against, or denigration of, any section of the community on account of sex, sexual orientation, race, age, disability, occupational status, or as a consequence of legitimate expression of religion, culture or political belief.

[56]   The Authority agrees with TVNZ that the discrimination and denigration standard does not apply to individuals, but to sections of the community. As Ms Coates’ complaint related to Ms Elliott’s treatment as an individual, it finds that Standard 7 does not apply and it declines to uphold this part of the complaint.

Standard 8 (responsible programming)

[57]   Standard 8 requires that programmes are correctly classified, display programme classification information and adhere to the time-bands set out in the Free-to-Air Television Code.

[58]   As set out in Appendix 1 of the Free-to-Air Television Code, news and current affairs programmes may be scheduled at any time and are not, because of their distinct nature, subject to the requirements of the classification system.

[59]    One News was an unclassified news and current affairs programme. As a result, the Authority considers that Standard 8 does not apply and it declines to uphold the responsible programming aspect of the complaint.

For the above reasons the Authority upholds the complaint that the broadcast by Television New Zealand Ltd of an item on One News on 13 July 2009 breached Standards 1, 9 and 10 of the Free-to-Air Television Code of Broadcasting Practice.

[60]   Having upheld the complaint, the Authority may make orders under sections 13 and 16 of the Broadcasting Act 1989. It does not intend to do so on this occasion.

[61]   In the Authority’s view, Mr Weatherston’s trial was an unusual event because he had admitted killing Ms Elliott and gave lengthy evidence in his own defence. It understands that choosing which footage to include in reports on the trial would have been a difficult editorial decision. It also accepts that it was important for the public to see Mr Weatherston giving evidence in order to reflect events accurately.

[62]   The Authority finds that the publication of its decision is sufficient in the circumstances and expects that it will provide guidance for TVNZ when reporting on similar issues in the future.

Signed for and on behalf of the Authority

Joanne Morris
Chair
25 November 2009

Appendix

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

1.          Sharon Coates’ formal complaint – 27 July 2009

2.         TVNZ’s response to the formal complaint – 3 September 2009

3.         Ms Coates’ referral to the Authority – 8 September 2009

4.         TVNZ’s response to the Authority – 8 October 2009

¹Decision No. 2009-023

²Decision No. 2008-066

³Decision No. 2008-137

⁴Decision No. 2007-111