BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint
One News – two items – coverage of murder trial – complainant summonsed as juror – shown standing near to accused in the dock – implied supporter of accused – breach of privacy

Findings
Section 4(1)(c) – broadcasts did not maintain standards consistent with the privacy of the individual – current privacy principles not applicable – uphold as breach of s.4(1)(c)

Order
Costs to complainant of $500

This headnote does not form part of the decision.

Summary

The trial in the Whangarei High Court of George Aaron Marson for murder was covered by Television New Zealand Ltd. An item on One News on Monday 28 May 2001 showed Mr Marson pleading not guilty. The same footage was used in an item reporting the jury’s guilty verdict screened on One News on 1 June. On each occasion, DA was shown standing behind the dock, about a metre away from the accused.

DA, through his solicitors, complained to the Authority under s.8(1)(c) of the Broadcasting Act 1989 that the items breached his privacy. He said that the coverage suggested that he was involved in some way with Mr Marson. He advised that he was in Court in response to a jury summons, and he pointed to the guidelines for television coverage of criminal trials which forbid coverage of members of the jury or members of the public.

In response, TVNZ said it had not been aware of the coverage of DA until after the trial, and added that the enforcement of the guidelines was a matter for the trial judge. It denied that the Privacy Principles applied by the Authority had been breached.

For the reasons below, the Authority upholds both privacy complaints. It orders the broadcaster to pay costs of $500.00 to the complainant.

Decision

The members of the Authority have viewed a tape of the items complained about and have read the correspondence which is listed in the Appendix. The Authority determines the complaints without a formal hearing.

The Items

Television New Zealand Ltd applied to the Whangarei High Court in May 2001 for permission to cover the trial of George Aaron Marson for murder. The application was opposed by Mr Marson’s counsel because of the potential for disorder, intimidation and violence. When the presiding judge, Nicholson J, granted the application, he imposed some special conditions in addition to the requirements contained in the Guidelines For Expanded Media Coverage of Court Proceedings, dated May 2000. Clauses B8 and B9 of the Guidelines state:

B8  There shall be no visual coverage of the jury at any time.

B9  There shall be no visual coverage of members of the public who are in attendance

The special conditions imposed by Nicholson J included the following:

[iii] There is to be a representative nominated by all media involved who is to liaise with Court staff, Police and security people about appropriate steps to be taken and observed by the media to reduce the risk of disorder, intimidation and violence in the Courtroom and the precincts of the Court and to implement appropriate steps to reduce such risk in conjunction with those representatives.

[v] If I consider the activities of the media in recording the trial exacerbate the situation of potential disorder, intimidation or violence I will make rulings which may restrict the media’s opportunity to record the proceedings

The special conditions were imposed, the complainant’s solicitors wrote, to recognise the concern about disorder and were steps designed to reduce the risk of disorder.

The complainant, DA, was summonsed to be part of the jury panel for the trial. While waiting in Court for his name to be called, his solicitors explained, he had sat in the public gallery behind the dock. When the accused came into Court, DA was seated directly behind him about one metre away. DA’s name was not called, the solicitors continued, and he did not stay for the trial.

The trial coverage on One News, broadcast at 6.00pm on 28 May, included footage of the defendant in the dock.

The Complaints

In relation to the item screened on One News on 28 May, DA’s solicitors wrote:

The film showed our client seated beside and closely behind the accused. It clearly portrayed [DA] as being in some way involved in the trial. It portrayed [DA] as in some way being involved with the accused.

They continued:

[DA] saw himself on television and suffered extreme embarrassment. His clear view is that the film showed him as being associated with the accused. He immediately feared for his safety in that he was identified (incorrectly) as being a person involved in the trial either as a supporter of the accused or as a juror. He feels he was forced by the law to go to court that morning and he did not want to be there. His privacy has been breached by being filmed at court.

DA’s solicitors also made a complaint to the High Court Judge.

As a consequence of the coverage, his solicitors said, DA was required to respond to questions from members of the public over the next few days about his alleged involvement. Despite the first complaint, his solicitors added, the coverage of the trial on One News on 1 June, which reported the guilty verdict, again screened the footage which showed DA sitting close behind the accused.
His solicitors concluded:

This is a complaint of a breach of broadcasting standards. It is a clear breach of the guidelines for coverage on television of court proceedings. Clause B9 of those guidelines is there to protect the privacy of innocent individuals. Particular care was required at that stage of the trial where prospective jurors were assembled in court waiting to be selected for the jury. Those guidelines were infringed and [DA]’s privacy was compromised on two separate occasions in one week.

[DA] is entitled to compensation for the distress he has suffered over his legitimate concern for his and his family’s safety. He is entitled to compensation for the embarrassment suffered in a small community in being portrayed as associated with a violent criminal.

The Broadcaster’s Response

In its response to the Authority to the privacy complaint, TVNZ acknowledged from the outset:

[DA] was, unfortunately, shown in the background when shots were shown of the accused entering and while he was in the dock. This was contrary to the television reporting guidelines agreed prior to the case.

TVNZ also reported that it had couriered, on Tuesday 29 May to the Whangarei High Court, a copy of the coverage of the trial on One News on 28 May at the request of the Court. However, it added, it was not advised of the reason for the request and heard nothing further about it at that time.

On 12 June, TVNZ advised, it heard for the first time of the complainant’s concerns in a letter from the Whangarei High Court. Following an investigation, TVNZ apologised to the Court for the error, and to DA in a lengthy telephone call with him. TVNZ reported that it had explained to the Court that:

The positioning of the dock, hard up as it is against the public gallery, meant that it was quite impossible to picture the accused entering his plea, a key moment in the trial, without capturing the image of [DA], who was standing (not sitting it would seem, as claimed by [DA’s solicitors]) directly behind the accused.

TVNZ added:

As mentioned above, TVNZ has apologised to [DA] for his brief, inadvertent appearing in a news report. The mistake was sincerely regretted. However, TVNZ does not accept that [DA]’s appearance constituted a breach of privacy. While a breach of the Guidelines for Extended Media Coverage of Court proceedings certainly occurred, TVNZ does not believe that this meant that this was a breach of the Authority’s Privacy Principles.

After providing a brief summary of the Guidelines, and pointing to their lack of a statutory basis, TVNZ maintained that the remedy for a breach of the Guidelines was the right of the judge to terminate television coverage at any time.

TVNZ also considered the basis for Guideline B9 and argued that it was included to prevent the use of the public gallery as a forum for a televised protest, rather than to grant the public some sort of privacy.

Turning to the Privacy Principles applied by the Authority, TVNZ argued that the privacy complaint should not be upheld. It wrote:

If TVNZ had filmed the complainant walking into the public entrance of the Whangarei High Court, there clearly could be no claim that there had been a breach of privacy. The situation does not change simply because [DA] was filmed inside the Court itself (albeit in breach of the Guidelines). The fact that the filming itself was in close proximity to the accused (because of the cramped nature of the courtroom) is, with respect, irrelevant.

DA’s Response

DA, through his solicitors, made five points in response to TVNZ.

i) TVNZ had not apologised to DA, the solicitors wrote. Rather, after the news item on 1 June, DA had rung TVNZ and complained to the Auckland Bureau Editor. He was told that the coverage he complained about could not have occurred as "it was sacrosanct that people in the public gallery were not shown during coverage of criminal trials". The Bureau Chief declined to comment on the coverage which had occurred and, the solicitors added, had not apologised.

ii) The solicitors disputed TVNZ’s argument that the position of the dock in the Whangarei courtroom was dissimilar to many other courtrooms. It described the courtroom as large, and observed:

TVNZ described the entering of Mr Marson’s plea as a key moment in the trial. In every criminal jury trial, that is precisely the moment that the public gallery is packed with prospective jurors from the jury panel. It is a time when TVNZ should be particularly careful.

iii) Pointing out that DA was included twice in the coverage of a major murder trial, the solicitors did not accept TVNZ’s summary that DA’s appearance was either brief or inadvertent.

iv) Noting that the judge imposed special conditions for media coverage in view of the potential for disorder, the solicitors argued that the guidelines could be enforced by contempt proceedings. They were, they added, mandatory.

v) On the basis that privacy was a wide concept, and enclosing a record prepared of the comments experienced by the DAs during the days after DA appeared on television, the solicitors concluded:

Mr and Mrs [DA] have lost the right to enjoy the privacy of their home without feeling under threat. They have lost the right to the privacy of their personal lives without people inquiring into why [DA] was associated with a murderer. They lost the right to the privacy of their relationship with their friends and neighbours which have been invaded by rumour, innuendo and speculation as to [DA]’s involvement with a person who is regarded in this community as a vicious and evil murderer.

TVNZ’s Response

TVNZ responded to some of the comments in the letter from DA’s solicitors. First, in relation to point (v) about the responses experienced by the DAs, TVNZ said that many of the incidents described lacked specifics and could suggest that DA was being unduly sensitive.

As for point (iv), TVNZ said that its legal advice suggested that contempt proceedings were unlikely as such proceedings were reserved for wilful and serious breaches of a judge’s ruling.

TVNZ concluded:

It is stressed that the ‘rule’ broken on this occasion is found in a set of guidelines. As our solicitor points out, these guidelines have no statutory basis. They cannot form a principled approach to privacy. We have pointed out that there would have been no breach of privacy had [DA] been filmed outside court, or entering the court from a public footpath. While we regret that we did not adhere to the guidelines, we submit that as far as privacy is concerned there has been no breach. The court is, in a sense, the most public place of all – and as we have explained – the guideline restricting the filming of members of the public was not developed with matters of privacy in mind.

It is our solicitor’s opinion that it is highly unlikely that people ‘of ordinary sensibilities’ watching the two items would conclude that [DA] was there in support of one side or the other.

The Complainant’s Final Comment

In a brief reply, DA’s solicitors pointed out that DA was in court in response to a jury summons. They added:

The Judge had directed that persons in the public gallery were not to be shown on television. His face was shown and it was shown in circumstances which portrayed him as being associated with a violent person who was eventually convicted of murder.

The Authority’s Determination

Through his solicitors, DA has complained that the broadcast of items on One News on 28 May and 1 June 2001 breached his privacy. The broadcasts involved coverage of the trial of George Aaron Marson for murder. The broadcast on each occasion included footage of the accused in the dock. Furthermore, on each occasion, DA was shown standing behind the dock about a metre away from the accused.

Coverage of court proceedings on television is governed by the Guidelines for Expanded Media Coverage of Court Proceedings dated May 2000. Guideline B9 states:

B9  There shall be no visual coverage of members of the public who are in attendance.

There is no dispute that this guideline was contravened by the items on One News.

In regard to DA’s complaint to the presiding judge (Nicholson J) about the broadcast on 28 May, the Whangarei High Court advised that, at the Court’s request, TVNZ provided a video of the item and a letter of explanation and apology.

A copy of TVNZ’s letter of 20 June to the Whangarei High Court was enclosed. In that letter, TVNZ’s Auckland Bureau Editor wrote:

We have checked our programme tape and accept that [DA]’s face did appear briefly on screen during the One News item. One News is a responsible broadcaster which has been involved in many in-court camera cases. We fully accept the need to keep within the Protocols & Guidelines for media coverage. This incident is a regrettable oversight and a very rare mistake. I’ve personally conveyed my apologies to [DA].

He added:

It is a point of clarification that contrary to the statement in the letter from [DA]’s lawyer, [DA] did not appear on One News when he was a part of the jury panel as the item screened after the jury had been empanelled and the trial was underway.

The High Court advised the Authority of the ruling made by Nicholson J:

Nicholson J considers that in filming [DA] behind the accused and broadcasting that film, TVNZ were in breach of the combined prohibition made by Conditions 8 and 9. However, in the circumstances and in light of TVNZ’s acknowledgment of fault and apology to [DA], Nicholson J does not intend to take any further steps other than to report the matter to the Chief Justice and to the Committee which deals with media coverage of Court proceedings.

In its comment on this ruling, TVNZ noted that the ruling confirmed that it had apologised. It also noted:

We stress again that what were breached were guidelines which have no statutory basis, the relevant one being there to prevent the presence of television cameras being exploited by anyone who might wish to stage some sort of disturbance or protest within the Court.

In response to the above comment, DA’s solicitors argued that the rules regarding media coverage in a particular case were mandatory. The solicitors disputed TVNZ’s claim that it had apologised to DA, and wrote:

In fact, what TVNZ did was apologise in writing to the court but never showed [DA] that same courtesy. [DA]’s position is that he has never received an apology.

TVNZ responded to this point and insisted that DA had received a personal apology by telephone from TVNZ’s newsroom.

Section 4(1)(c) of the Broadcasting Act requires broadcasters to maintain standards consistent with the privacy of the individual. The Authority has developed seven Privacy Principles that it has released by way of an Advisory Opinion, dated 20 September 1999, and which are included in each Code of Broadcasting Practice approved by the Authority. None of the seven principles match the specific facts of DA’s complaints.

The introduction to the Principles in the Advisory Opinion published on 20 September 1999 includes the following statement:

• These principles are not necessarily the only privacy principles that the Authority will apply;
• The principles may well require elaboration and refinement when applied to a complaint;
• The specific facts of each complaint are especially important when privacy is an issue.

The Authority’s approach to privacy complaints is to examine thoroughly the context of the broadcast with which it is dealing. It considers carefully exactly what matters have been disclosed and the likely impact of their disclosure. It must also take into account the broadcaster’s right to freedom of expression contained in s.14 of the New Zealand Bill of Rights Act 1990, so that its rulings do not unduly restrict that right.

The Authority acknowledges TVNZ’s argument, that a breach of the Guidelines relating to Court Proceedings does not automatically translate into a breach of the broadcasting standard laid down in s.4(1)(c) of the Broadcasting Act.

The existence of the Guidelines, however, indicates that the right to freedom of expression is not absolute. Furthermore, the Authority accepts that a breach of the Guidelines may well offer some assistance when deciding if there has been a breach of privacy under the Broadcasting Act.

In the course of its deliberations, the Authority inquired into the reason for Guideline B9. TVNZ had advised that it was directed at preventing protest groups from using a courtroom as a platform for political protest. While accepting that this could be one reason for the Guideline, the Authority noted the broad wording of the Guideline and that if that had been its sole purpose, it would not prevent protests being mounted outside a court.

Accordingly, the Authority sought advice from the Senior Judicial Communications Adviser in the Office of the Chief Justice (Neil Billington) who explained that the Guideline was intended to provide privacy to members of the public when television covers court proceedings.

The Authority notes that a courtroom, while usually open to the public during a trial, could not be described as a "public place" in the accepted sense of the term. A judge can exclude members of the public in a range of circumstances.

Turning to DA’s specific complaint, the Authority reiterates that the particular facts of each privacy complaint are central to its ruling. In this case, it notes, in addition to the focus on Guideline B9, DA’s proximity to the accused, DA’s physical distinctiveness and the threats of violence which meant that extra security was provided for the trial of Mr Marson. Because of the acknowledged potential for violence arising from the trial, the Authority accepts that the DAs felt themselves under some degree of threat from those who might have assumed from the television coverage that he was involved with the accused. The Authority does not consider the camera position or the design of the courtroom to be relevant as DA, as with other members of the public, could have been pixellated by the broadcaster.

The Authority concludes that the items broadcast on 28 May and 1 June, when they showed DA, failed to maintain standards consistent with the privacy of the individual given:

• the clarity of the image of DA,
• his proximity to the accused,
• a perception of potential disorder, intimidation or violence arising out of the trial, and
•  the acknowledged breach of Guideline B9.

For the above reasons, the Authority upholds the complaints that the broadcast by Television New Zealand Ltd of items on One News on 28 May and 1 June 2001 breached s.4(1)(c) of the Broadcasting Act 1989.

Having upheld a complaint, the Authority may make orders under ss.13 and 16 of the Act. It invited submissions from the parties.

TVNZ said that it had acknowledged that the guidelines had been breached and had apologised to DA. It argued that no penalty was warranted. DA’s solicitors submitted that the broadcast had had a significant and detrimental impact on DA. They asked that the decision not disclose DA’s identity, and that TVNZ be ordered to pay reasonable costs. They enclosed a copy of their account to DA.

The Authority notes that that it has upheld a privacy complaint and is the view that further publicity could exacerbate the situation for the complainant. Accordingly, it suppresses his name.

The Authority is also of the opinion that the breach on this occasion justifies a reasonable contribution to the complainant’s costs. Accordingly, it imposes the following order.

Order

Pursuant to section 16(1) of the Broadcasting Act 1989, the Authority orders Television New Zealand Ltd to pay, within one month of the date of this decision, the sum of $500.00 by way of costs to DA.

The Order shall be enforceable in the Wellington District Court.

The Authority draws the broadcaster’s attention to the requirement in section 13(3)(b) of the Act for the broadcaster to give notice to the Authority of the manner in which the order has been complied with.

Signed for and on behalf of the Authority

Peter Cartwright
Chair
6 December 2001

Appendix

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

1. DA’s Solicitors’ Formal Complaint to the Broadcasting Standards Authority, plus attachments
   – 15 June 2001
2. Television New Zealand Ltd’s Response to the Authority – 8 July 2001
3. DA’s Solicitors’ Final Comment to the Authority, plus attachments – 24 July 2001
4. TVNZ’s Further Response – 1 August 2001
5. DA’s Solicitors’ Response – 17 August 2001
6. Whangarei Court’s Criminal Caseflow Manager’s Report to the Authority – 3 September 2001
7. Whangarei Court’s Criminal Caseflow Manager’s Second Report to the Authority – 4 October 2001
8. TVNZ’s Response to the Caseflow Manager’s Report – 11 October 2001
9. DA’s Solicitors’ Response – 15 October 2001
10. TVNZ’s Response – 23 October 2001
11. TVNZ’s Submission on Penalty – 14 November 2001
12. DA’s Solicitor’s Submission on Penalty – 14 November 2001