BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

[This summary does not form part of the decision.]

An item on Checkpoint reported on the final stages of a court case in Auckland, known as the ‘Dome Valley’ kidnapping, in which a young woman was kidnapped, beaten, sexually violated and left to die by a group of her former friends. The reporter outlined the events of the kidnapping and the item featured segments of the victim giving evidence (with her voice disguised) via audio-visual link from another room in the closed court. The reporter and the victim outlined her assault and injuries in some detail. No audience advisory was broadcast. The Authority found that, while this item had high value in terms of the right to freedom of expression, and was in the public interest, a brief audience advisory should have been broadcast to enable listeners to decide if they wished to listen to the detailed, violent content included in the item. While the Authority supported the broadcast of an item that gave voice to the victim, the segment contained descriptions and details that were disturbing in nature and potentially upsetting for listeners, particularly those who had suffered similarly and any children who may have been listening. The Authority did not uphold the complaint under the law and order standard.

Upheld: Good Taste and Decency, Children’s Interests, Violence

Not Upheld: Law and Order

No Order 

Introduction

[1]  An item on Checkpoint reported on the final stages of a court case in Auckland, known as the ‘Dome Valley’ kidnapping, in which a young woman was kidnapped, beaten, sexually violated and left to die by a group of her former friends. The reporter outlined the events of the kidnapping and the item featured segments of the victim giving evidence (with her voice disguised) via audio-visual link from another room in the closed court. The reporter and the victim outlined her assault and injuries in some detail. No audience advisory was broadcast prior to the segment.

[2]  Margaret Cochran complained that the item featured unnecessarily detailed, graphic descriptions of the violence of the crime, and featured pre-recorded material that should have been edited or summarised by the broadcaster.

[3]  The issues raised in Ms Cochran’s complaint are whether the broadcast breached the good taste and decency, children’s interests, violence and law and order standards of the Radio Code of Broadcasting Practice.

[4]  The item was broadcast at 5.38pm on 6 March 2017 on RNZ National. The members of the Authority have listened to a recording of the broadcast complained about and have read the correspondence listed in the Appendix.

Background

[5]  Five individuals (along with a sixth, who pleaded guilty to the charges) were accused of varying roles in the Dome Valley attack, and were found guilty in March 2017 of a variety of charges including kidnapping, threatening to kill, attempted murder, assault with a weapon, and sexual violation, among others.¹

[6]  The victim, a young woman then aged 19, had fallen out with her former friends. Three of the accused individuals carried out the first attack on the victim in April 2016. The second attack occurred two weeks later, when the victim was kidnapped by four of the individuals accused. She was held at a Glen Eden address for 20 hours, before being driven to Dome Valley, brutally attacked and left to die.²

[7]  The case received wide media coverage, both at the time of the kidnapping and throughout the trial, and some reports featured content warnings.³

The programme

[8]  The item subject to complaint reported on the later stages of the court case, and featured a pre-recorded segment that detailed a number of disturbing acts of violence carried out on the victim, including:

• She was hit in the back of the head with a hammer, blacked out and left for dead (presenter, during the item’s introduction).
• She was assaulted with a taser and scissors, and sexually violated (presenter).
• She was kicked and punched, tasered on her arms and near her private parts (reporter).
• One of the attackers had been smoking meth through a pipe. ‘After she finished heating it up, she then, like, rolled the pipe down my leg, and it burnt me’ (victim).
• She was threatened with a dirty needle, her hair was cut and a knife held to her throat. She was later grabbed by her hair, forced into a car and punched repeatedly in the head (reporter).
• The victim rubbed her face with her hands so she had blood on her fingers. She then put her hands on the inside of the car boot where her attackers wouldn’t think to look (victim).
• She was held in a basement for 20 hours and struck with a cricket bat and stumps. She was ordered to strip and was sexually violated (reporter).
• She was zip-tied by her wrists, knee and ankles in the corner on the concrete floor, naked. She could later hear one of her attackers telling the other attackers they wouldn’t get caught as ‘they won’t even find the body’ (victim).
• She was put into the tray of a truck and driven to a rural road. There was a botched attempt to break her neck and she could hear the women laughing, sniggering and talking about ‘ending it all’ (reporter).
• When she went to get up, she felt a ‘massive hit to the back of the head’, and found out later she had been struck with a hammer (victim).

Overview of findings and freedom of expression

[9]  We acknowledge at the outset that this item carried high value in terms of the right to freedom of expression. It was a factual report about a crime that took place in New Zealand, and it was not sensationalised. As the victim’s evidence was given in a closed court, the only way in which the public could hear from the victim was through the media, and it was important that the victim be given a voice.

[10]  There was also high public interest in receiving information about this case, both relating to the crime itself and the subsequent court proceedings (including the verdicts and sentencing of the accused). The nature and seriousness of this crime was also central to the case.

[11]  The issue is therefore whether the broadcast of this material, at around 5.30pm, breached broadcasting standards in terms of the graphic and detailed descriptions of the violence that occurred.

[12]  Notwithstanding the high public interest in this item and our finding that the item was valuable in terms of the right to freedom of expression, we consider listeners would have benefited from a brief, verbal warning from the presenter that the report contained graphic and disturbing content. This, in our view, would be a reasonable and justified limit on the broadcaster’s right to freedom of expression.

[13]  This was factual news reporting of a serious crime and as we have said the tone was matter-of-fact rather than sensational. However, we think listeners ought to have been given further information, through an advisory, to enable them to make an informed decision about whether they wanted to listen to the graphic detail contained in the item, and/or to give them an opportunity to exercise discretion. On this basis we have found a breach of three of the nominated standards, but we wish to emphasise that this is not intended to detract from the importance of this item or our support for it.

[14]  We expand on our reasoning in relation to the standards raised below.

Did the item breach broadcasting standards?

[15]  Ms Cochran’s complaint raises similar issues under the good taste and decency, children’s interests and violence standards. As the same contextual factors and other considerations are relevant to our assessment of each of these three standards, we have addressed them together.

[16]  The purpose of the good taste and decency standard (Standard 1) is to protect audience members from listening to broadcasts that are likely to cause widespread undue offence or distress, or undermine widely shared community standards. In a radio context, this standard is usually considered in relation to offensive language, sexual references or references to violence, but may also apply to other material presented in a way that is likely to cause offence or distress.

[17]  The children’s interests standard (Standard 3) states that broadcasters should ensure children can be protected from broadcasts which might adversely affect them.

[18]  Broadcasters should also exercise care and discretion when referencing violence (Standard 4). In news, current affairs and factual programmes, where disturbing or alarming material is often reported to reflect a world in which violence occurs, the material should be justified in the public interest. Broadcasters should:⁴

• Exercise judgement and discretion in deciding the degree of graphic detail to be included in news programmes, particularly when children are likely to be listening. 
• Use an audience advisory when appropriate. 

The parties’ submissions

[19]  Ms Cochran submitted that: 

• The pre-recorded material in this broadcast should have been edited or summarised, so that only necessary information was broadcast to a general listening audience, at 5.30pm. It was not in the public interest to know such graphic detail, particularly when children were likely to be listening. 
• The segment featured sexual material and themes, violent content, offensive language, dangerous antisocial and illegal behaviour and graphic descriptions of the victim’s extreme pain and distress. This material was outside audience expectations of a national radio station at 5.30pm, when children could be within earshot of the radio. 
• The segment contained unnecessarily detailed descriptions of violence and the crime. Caution should have been shown ‘as this amount of detail was likely to incite and encourage violence and brutality’. 

[20]  RNZ submitted that:

• Because of the general nature of the references to violence and descriptions of the attacks, this material did not breach broadcasting standards.
• Children were unlikely to be listening to a news and current affairs programme such as Checkpoint, from 5.30pm to 6.30pm. In any event, given the generalised nature of the report, it was difficult to see how a child would be unduly disturbed by the description broadcast.
• The actions that led to the sexual violation charge in this case were more serious and graphic in nature than what was reported in the item. For this reason, the reporter chose not to outline
• the actions leading to sexual violation charges, or the resulting injuries.

Our analysis

[21]  When we consider a complaint under the nominated standards, we take into account the context of the broadcast. Relevant contextual factors in this case include:

• the nature of Checkpoint, a news and current affairs programme that discusses national and international stories, but which can also feature community-focused topics
• the time of broadcast at 5.38pm, during children’s normally accepted listening times (after school)
• the absence of an explicit audience advisory for the item’s content
• the signposting by the presenter at the outset of the item, which gave an indication of its likely content
• the length of the broadcast at over four minutes
• the programme is targeted at, and likely to be listened to by an adult audience
• audience expectations of Checkpoint and of RNZ National
• the high public interest in the broadcast.

[22]  Having regard to these contextual factors, as well as the high value in this item in terms of the right to freedom of expression, we do not think the issue in this case is whether the item should have been broadcast at all. This was an important broadcast about a serious crime that took place in New Zealand. We acknowledge that broadcasters are entitled to present material in the way that they choose, and it was appropriate in this case to hear from the victim. This was an editorial choice open to the broadcaster and, in our view, justified. The subject matter of this item required the weight and gravitas afforded to it through the victim herself speaking to her experiences, and the report described events happening in our communities and to our people. We support the broadcast of such material.

[23]  For this reason we have limited our determination to the question of whether the item should have been preceded by an audience advisory to inform listeners of the level of content, and ensure it did not cause widespread undue offence or distress, or adversely affect child listeners. Audience advisories are an important way in which broadcasters provide listeners with information to enable them to make an informed choice about whether they, or their children, should continue listening to the broadcast content.

[24]  As we have outlined above, the item featured a pre-recorded segment that detailed a number of disturbing acts of violence carried out on the victim. As a result, the item contained sexual material, violent content and graphic descriptions of the victim’s experiences. The depictions of violence, while only verbal (and not visual),⁵ were lengthy and relatively detailed and made up the majority of the segment, which was over four minutes in length. It will have been distressing content for some people. The descriptions of violence were, in our view, particularly distressing when delivered by the victim herself, although her account was matter-of-fact in tone.

[25]  We accept Checkpoint is targeted at an adult audience. However, the item was broadcast at around 5.30pm during children’s normally accepted listening times.⁶ Alongside discussion of news and current affairs, Checkpoint also features community-focused topics relevant to families, and children could overhear or be listening in the car or at home during this time.

[26]  In these circumstances we believe the manner of presentation of this segment and the violent content warranted the broadcast of an audience advisory (see guideline 4d set out at paragraph [18] above), so that listeners had the opportunity to change radio stations, switch off their radio or device, and/or exercise discretion if there were children present. The manner in which this material was presented was impactful, and in our view, there was a real likelihood of listeners, including children, being upset or disturbed by the content, when they were unprepared for it. We are also mindful that listeners who may have suffered in similar ways might have found the item particularly distressing.

[27]  As we have said, we are supportive of the broadcast of this item, and we consider it a reasonable and justified limit on the broadcaster’s right to freedom of expression to require an audience advisory prior to the broadcast of disturbing and graphic details of violence.

[28]  Accordingly we uphold the complaint under Standards 1, 3 and 4.

Did the broadcast encourage viewers to break the law, or otherwise promote, condone or glamorise criminal activity?

[29]  The purpose of the law and order standard (Standard 5) is to prevent broadcasts that encourage audiences to break the law, or otherwise promote criminal or serious antisocial activity.⁷ The standard is concerned with broadcasts that actively undermine, or promote disrespect for, the law or legal processes.

The parties’ submissions

[30]  Ms Cochran submitted that the amount of detail and techniques described in the broadcast could invite imitation and no audience advisory was given.

[31]  RNZ submitted that nothing in this item incited listeners to undertake the criminal activities described by the victim.

Our analysis

[32]  While we have found that this item contained graphic content and detailed descriptions of violent criminal acts, it does not automatically follow that the broadcast actively promoted criminal or antisocial behaviour. Depicting criminal or illegal activity is insufficient in itself to result in a breach of this standard.⁸

[33]  The broadcast item did not promote, encourage or condone the behaviour described. The actions of the individuals accused were not glamorised and it was clear they had been charged with serious criminal offences. The events were described in a matter-of-fact way, and the reporter outlined the negative impact the attack had on the victim at the end of the item. While the violence described was graphic, the item did not incentivise listeners to carry out similar acts or invite imitation.

[34]  For these reasons, we do not uphold the law and order complaint.

For the above reasons the Authority upholds the complaint that the broadcast by Radio New Zealand Ltd of Checkpoint on 6 March 2017 breached Standards 1, 3, and 4 of the Radio Code of Broadcasting Practice.

[35]  Having upheld aspects of this complaint, the Authority may make orders under sections 13 and 16 of the Broadcasting Act 1989. While we have acknowledged that a breach of broadcasting standards occurred in this case, we do not consider an order is warranted.

[36]  As we have said, this item had high value in terms of the right to freedom of expression, and was in the public interest. Hearing from the victim herself was a powerful means of presentation. While we do not wish to stifle this type of broadcasting, we have found that the item required an audience advisory to ensure audiences could make an informed choice about what they, and their children, were listening to. We consider this decision is sufficient to give guidance to broadcasters around considering the use of warnings where appropriate, particularly prior to violent content which may be likely to distress or disturb audiences.

[37]  We also note that this is the first substantive complaint we have considered under the new violence standard in the Radio Code of Broadcasting Practice, which came into force on 1 April 2016. While the application of this standard to radio will be rare (as usually violent content will have more impact visually),⁹ we consider that, in this case, the level of graphic detail clearly triggered the violence standard and required the exercise of care and discretion by the broadcaster in the presentation of the item. We hope that our decision on this complaint provides clarity to radio broadcasters in terms of the type of content that may be considered under this standard.

Signed for and on behalf of the Authority

Peter Radich
Chair
24 July 2017

Appendix

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

1      Margaret Cochran’s formal complaint – 21 March 2017
2      RNZ’s response to the complaint – 6 April 2017
3      Ms Cochran’s referral to the Authority – 26 April 2017
4      RNZ’s response to the Authority – 17 May 2017
5      Ms Cochran’s further comments – 29 May 2017
6      RNZ’s final comments – 2 June 2017
7      Ms Cochran’s final comments – 7 June 2017

¹ Verdicts reached in Dome Valley kidnapping trial (20 March 2017, Stuff.co.nz)

² Dome Valley trial: Verdicts reached (20 March 2017, Newshub) 

³ See, for example: Dome Valley Case: Victim's head bashed in love spat, court told (27 February 2017, The Herald) – features warning for ‘Disturbing Content’; Dome Valley case: Inside the horror of degrading and prolonged attack (21 March 2017, Stuff.co.nz) – features warning for ‘Distressing Content’; Dome Valley case: Kidnappers sentenced to jail at High Court in Auckland (28 April 2017, Stuff.co.nz) – features warning for ‘Graphic Content’

⁴ Guideline 4d to Standard 4 – Violence

⁵ Guideline 4a to the violence standard recognises that violent material has more impact visually (and therefore the violence standard will rarely apply to radio).

⁶ Children’s normally accepted listening times are usually up until 8.30pm and especially before school and after school. See Definitions, Broadcasting Standards in New Zealand Codebook, page 9.

⁷ See, for example, Keane and Television New Zealand Ltd, Decision No. 2010-082

⁸ See Commentary: Standard 5 – Law and Order, Broadcasting Standards in New Zealand Codebook, page 15.

⁹ Guideline 4a to Standard 4 – Violence