BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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Summary

When reporting on the sentence imposed on a woman for armed robbery, footage was

included of her being shot at the scene by a police officer. The item showed the police

officer from a rear angle firing two shots.

Sergeant Ihaka complained to the Broadcasting Standards Authority under s.8(1)(c) of

the Broadcasting Act 1989 that the item broadcast on 3 National News on 12

November 1996 breached the privacy of the police officer involved as he would have

been identified by those who knew him.

Explaining that the incident on 29 August 1996 occurred in a public place, and that

police officers were accountable for their actions, TV3 declined to uphold the

complaint. Nevertheless, given the stress on police officers of incidents involving the

use of firearms, it said that it had, following representations from the police, edited the

item to ensure that the officer was not readily identifiable.

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

Decision

The members of the Authority have viewed the item complained about and have read

the correspondence (summarised in the Appendix). As is its practice, the Authority

determines the complaint without a formal hearing.

A woman armed with a knife threatened a dairy owner in Auckland in August 1996.

A police officer had fired two shots at the woman, hitting her in the elbow and the

shoulder. A TV3 news item on 12 November 1996 reported the sentence imposed on

the woman and included pictures of the incident taken at the time which showed, from

a rear angle, the police officer firing two shots at the woman.

Sergeant Ihaka, a police officer stationed in Kaitaia, complained directly to the

Authority that as the officer who fired the gun would be identified by those who knew

and worked with him, the item had breached his privacy. Explaining the stresses

involved on police officers when using weapons, Mr Ihaka argued that the officer's

right to anonymity was paramount. To be reminded of the incident on national

television, he added, was most unfair. He suggested an apology to the officer involved

and the deletion of the item from TV3's archives.

At the Authority's request, TV3 assessed the complaint under s.4(1)(c) of the

Broadcasting Act 1989 which requires broadcasters to maintain standards consistent

with the privacy of the individual.

TV3 considered that the provision had not been breached. The incident had occurred

in a public place, it wrote, the police were accountable for their actions, and the New

Zealand Bill of Rights protected freedom of speech.

Acknowledging, nevertheless, that the use of a firearm by a police officer to injure or

kill involved considerable stress, TV3 advised that following discussions with the

police in Auckland, it had voluntarily agreed that future use of the material would be

edited in such a way as to ensure that the officer would not be identifiable. That

restriction, it added, had been in place when the film complained about had been used.

In response, Mr Ihaka accepted that the police were accountable and he pointed to the

measures in place to ensure accountability. "National television", he noted, "is not

one of them". He also disputed TV3's contention that it was not possible to identify

the officer involved.

In determining the complaint, the Authority accepts that it would be possible – from

the material contained in the item – for friends and neighbours to identify the officer

who fired the shots. The Authority also accepts that the lines of accountability for

individual police officers do not involve a responsibility to account for their actions

directly to the media.

The Authority also takes into account the fact that the use of a weapon by a police

officer to injure or kill is most likely to be a highly stressful matter for that officer.

This stress is acknowledged officially by the provision of counselling for police

officers involved.

In determining complaints which allege a breach of s.4(1)(c) of the Act, the Authority

has developed a number of privacy principles. While none is directly relevant to the

current complaint, the Authority has taken into consideration the concern contained in

the principles that "private" facts which are highly offensive, or which are not

legitimate matters of public interest, should not be disclosed. With this complaint, the

specific issue for the Authority is whether the identity of the individual officer who

fired the shot is a public or a private fact.

In its response to this question, the Authority recognises that it is not police practice

to identify officers who use weapons, and indeed, only rarely are officers identified

who respond to specific incidents or supervise an inquiry. The Authority takes these

practices into account in reaching its decision.

The Authority also takes into account that a person joining the police acquires the

right to use weapons against people in clearly delineated situations and, in particular,

acquires the right to use a hand gun, a weapon the public is forbidden to use in other

than extremely restricted situations. The individual officer thus has the right, in very

specific circumstances, to use these extraordinary powers.

The Authority considers that these facts themselves are sufficient for the media not to

be constrained from showing the deployment and use of such weapons. However, it

wishes to remind the media of its obligation to comply with the other standards -

especially those requiring fairness to any person exposed in an item. The use of a

weapon is at the extreme edge of a police officer's duty and, the Authority believes,

the pictures used by TV3 displayed an element of insensitivity on its part.

Nevertheless, as the officer was performing a police duty in a public place, the

Authority does not accept that it is essential that his identity be totally concealed.

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

The Authority notes that this complaint raises an important issue in that it was

required to consider individual police officers' rights as private citizens. These are

rights each police officer shares with the general public. The Authority acknowledges

that the television network itself conceded that there were good reasons why, on this

occasion, the officer should not be identifiable, and agreed to take steps to ensure that

this particular officer was not. The Authority has been advised that this matter was

dealt with by the broadcaster and the police, and places on record its hope and, indeed,

expectation that broadcasters will show sensitivity when dealing with similar

situations in the future.

Signed for and on behalf of the Authority

Judith Potter
Chairperson
17 April 1997

Appendix

Mr Ihaka's Complaint to the Broadcasting Standards Authority - 12 November 1996

Sergeant Ihaka of the New Zealand Police, stationed in Kaitaia, complained to the

Broadcasting Standards Authority about an item on 3 National News broadcast on 12

November 1996 between 6.00 - 7.00pm.

The item dealt with an incident in Avondale when an offender, who had taken a dairy

owner hostage, was confronted by an armed police officer and subsequently shot. The

item, Mr Ihaka said, clearly showed the police officer from behind firing the shot. He

continued:

Although the Police Officer cannot be identified publicly by the camera

sequences, he can be identified by the physical likeness and the narrative of the

news item, by those who know and work with him.

Mr Ihaka explained the basis for his complaint:

As a serving Police Officer myself, I find it appalling that this sort of media

intrusion should be allowed to pass without comment. I do not accept that the

news worthiness of the item should outweigh the Police Officer's right to

anonymity, the same rights that would be present for an offender in matters that

are sub judice.

Pointing to the stress of the situation and the regulations which applied to the Police,

Mr Ihaka considered that it was extremely unfair that any police officer should be

reminded of the event by having it screened (possibly on a number of occasions) on

television. He concluded:

I would respectfully suggest that in your adjudication the offending item be

removed from TV3's archives and a written apology be sent to the Police Officer

involved. Having worked in Auckland I am now aware as to who that person is.

TV3's Response to the Broadcasting Standards Authority - 13 December 1996

The Authority accepted Mr Ihaka's complaint under s.8(1)(c) of the Broadcasting Act

1989 as one which alleged a breach of privacy and sought comment from TV3

Network Services Ltd.

In its reply, TV3 advised that the pictures had been taken by a cameraman at the scene

of the incident in Avondale on 29 August. It wrote:

A police officer opened fire striking the woman twice, once in the elbow and

once in the shoulder. The woman, Trudi Spiers, was soon afterwards admitted

to hospital where she spent some days. She has since been jailed for offences

relating to the incident.

TV3 argued that a breach of privacy had not occurred for the following reasons:

l the incident occurred in a public place

l it was appropriate to film the actions of police officers who were publicly

accountable for their actions

l the police had made no attempt to move the cameraman

l freedom of speech was included in the Bill of Rights Act

l while it was under no obligation to conceal the officer's identity, TV3

believed that he would have been recognised only by those who knew him

well.

While declining to uphold the complaint, TV3 commented:

TV3 accepts that an incident in which a police officer discharges a firearm and

injures or kills someone is bound to put that officer under considerable stress.

Since the incident, Auckland police have contacted TV3 and urged the company

to consider restricting use of the footage. TV3 has voluntarily agreed to such

action - instructing staff that any future use of the material should be edited in

such a way as to remove any faint possibility that the officer might be

identifiable. That restriction was in force on the occasion which is the subject of

this complaint.

Mr Ihaka's Final Comment - 31 December 1996

While agreeing with some of the matters advanced by TV3, Mr Ihaka commented on

the following points.

First, he accepted that the police were accountable but argued that accountability in

itself did not justify the filming of their actions. Next, he did not accept that the

cameraman had been in a position to take the film without breaching a police cordon

and, he added, he was seeking clarification on this point from the Police. Thirdly, he

considered that the New Zealand Bill of Rights Act did not justify the filming which

occurred. As the fourth point, he wrote:

If TV3 believe that they are under no obligation to conceal the identity of a

Police Officer who has just shot an offender, purely because they do not think

he would be recognised, then I must voice my strongest objections. The audio

and visual footage left no doubt in my mind as to who the Police Officer was.

Finally, as he was able to identify the officer involved, he did not accept that TV3's

efforts to conceal his identity were sufficient. In conclusion, Mr Ihaka stated that

while he wholeheartedly supported the right of the media to take pictures in a public

place, he stressed that did not believe that the filming of a Police Officer shooting an

offender was an acceptable method of public accountability.

Further Correspondence

On 5 March 1997, the Authority asked TV3 whether identical or similar footage had

been screened before the broadcast complained about. It also sought elaboration on

the agreement which TV3 said it had reached with the Police about broadcasting

footage which identified an officer using a firearm to injure or kill someone.

In its reply dated 7 March 1997, TV3 advised the Authority that the pictures

complained about had been screened on a number of occasions, the first being on 29

August within a few minutes of the shooting occurring. It reported that subsequently

there had been an amiable meeting with Co-ordinator of Police Media Services in

Auckland at which:

... the Police accepted TV3's right to have taken the pictures and to screen them

as it saw fit. However, following that meeting, TV3 decided to edit the pictures

in such a way as to ensure the protection of the officer's identity.