BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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This decision was successfully appealed in the High Court: AP 147-01  PDF 1.5 MB

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Complaint
3 News – bottle store robbery – footage from security camera showed man being stabbed – gratuitous – violent

Findings
V12 – use of footage twice was gratuitous – footage graphic and distressing – warning required – uphold

Order
Broadcast of statement

This headnote does not form part of the decision.

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Summary

[1] The attempted robbery of an Auckland liquor store was dealt with in an item on 3 News broadcast on TV3 at 6.00pm on 5 August 2001. The item included footage from a security camera which showed a man being stabbed twice. The footage was screened twice.

[2] Rebekah Holt complained to TV3 Network Services Ltd, the broadcaster, that the footage was gratuitous, and inappropriate before 8.30pm.

[3] In response, TV3 considered that the footage was neither graphically violent nor distressing, and declined to uphold the complaint.

[4] Dissatisfied with TV3’s decision, Ms Holt referred her complaint to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

For the reasons below, the Authority upholds the complaint. It orders the broadcast of an approved statement.

Decision

[5] The members of the Authority have viewed a tape of the item complained about and have read the correspondence which is listed in the Appendix. The Authority determines the complaint without a formal hearing.

The Programme

[6] The attempted robbery of an Auckland bottle store was covered in an item broadcast on 3 News at 6.00pm on 5 August 2001. The attack was filmed on the store’s security camera and the item included footage which showed the store owner being stabbed twice. The footage was repeated.

The Complaint

[7] Rebekah Holt complained to TV3 that it was inappropriate to screen the footage at that hour. She said that there was no warning and the footage was gratuitous as it added nothing informative to the story. Such material, she wrote, should not be screened before 8.30pm.

The Standard

[8] TV3 assessed the complaint under Standard V12 of the Television Code of Broadcasting Practice. It reads:

V12  The treatment in news, current affairs and documentary programmes of violent and distressing material calls for careful editorial discernment as to the extent of graphic detail carried. Should the use of violent and distressing material be considered relevant and essential to the proper understanding of the incident or event being portrayed, an appropriate prior warning must be considered.

Particular care must be taken with graphic material which portrays especially disturbing images, such as:

• ill-treatment of people or animals
• close-ups of dead and mutilated bodies of people or animals
• views of people in extreme pain or distress, or at the moment of death
• violence directed at children or children in distress

Material shown in late evening may be more graphic than that shown during general viewing times.

The Broadcaster’s Response to the Complainant

[9] Pointing out that the attack had been captured on the store’s security camera, TV3 argued that the footage was relevant both to the understanding by viewers of the event, and to the Police who were hoping that viewers might recognise the attacker who had not yet been caught.

[10] Because news programmes included distressing material, TV3 said its staff were aware of the need for warnings. However, it did not consider a warning was necessary on this occasion as the footage was grainy and, as the owner was seen to be walking after the attack, the injuries were not life threatening. TV3 considered:

The Standards Committee did not find the footage to be either graphically violent or distressing, and did not find its inclusion in a news item about an attempted robbery and attack on the liquor store owner to be either gratuitous or sensationalist.

The Referral to the Authority

[11] Ms Holt made two main points when she referred her complaint to the Authority. First, she argued that the footage of the actual stabbing should have been deleted. That, she said, would not have detracted from viewers’ understanding, or from giving assistance to the Police about identify the assailant.

[12] Second, she described as naive TV3’s explanation in regard to the grainy footage. She maintained that the footage was distressing, regardless of quality, and a clear breach of the standards.

The Broadcaster’s Response to the Authority

[13] In its response to the Authority, TV3 repeated its contention that the footage was not so graphic that any editing was required. It noted that it had received only one formal complaint and thus the item had not been distressing to a large number of people.

The Authority's Determination

[14] The Authority notes that while the complainant agreed with TV3 that the complaint should be assessed under standard V12, TV3 also referred to standard V17 in its response to Ms Holt. In her referral to the Authority, Ms Holt then asked the Authority to review her complaint under both standards V12 and V17.

[15] The Authority is inclined to the view that standard V17 was mentioned in error by the broadcaster. While standard V17 could be considered to be of some relevance to the complaint, the Authority considers that Ms Holt’s concerns are related to a news item and therefore are adequately encompassed by standard V12. Accordingly, the Authority does not believe that Ms Holt is being disadvantaged in any way when it confines its examination to standard V12.

[16] TV3 suggested that the impact of the security camera footage was reduced because of its technical quality. The Authority agrees with the observation about the quality, but is of the view that this does not reduce the visual impact of the footage. Nevertheless, TV3 also contended that the footage would assist with viewers’ understanding of the event and could assist with identifying the offender. The Authority accepts that the footage could assist with identifying the offender, but notes that screening the entire segment was not necessary for that purpose.

[17] The Authority was not prepared to accept TV3’s argument that the footage was not gratuitous. While it could be argued that the use of the footage once could be justified, the Authority is firmly of the view that the repetition of the footage was gratuitous.

[18] When determining a complaint as to whether a broadcast contravenes standard V12, the Authority notes that the standard calls for careful "editorial discernment" about the broadcast of graphic material. The standard accepts there may well be a case for screening violent and distressing material, but requires that consideration in that case then be given to the use of a warning.

[19] The Authority concludes that the footage of the robbery from the security camera carried on 3 News was graphic and distressing. The Authority is inclined to the view that a warning would probably have been necessary even if the footage had been shown only once. It is certainly of the view that the gratuitous repetition of the security camera footage called for a prior warning.

[20] In reaching this decision, the Authority records that it has considered whether the broadcaster’s right to freedom of expression, as contained in s.14 of the New Zealand Bill of Rights Act 1990 is unjustifiably infringed. The Authority is satisfied that its decision to uphold this complaint, and any resultant order, are made under its empowering legislation. The Authority is also satisfied that the exercise of its power on this occasion does not unduly restrict the broadcaster’s right to express itself freely. Indeed, it considers that while still giving effect to the intention of the Broadcasting Act, the upholding of this complaint is reasonable and demonstrably justified in particular as the visual footage of the actual stabbing was screened on two occasions. In coming to this conclusion, the Authority has taken into account all the circumstances of this complaint, including the nature of the complaint, and the potential impact of the order.

For the above reasons, the Authority upholds the complaint that the broadcast by TV3 Network Services Ltd of an item on 3 News on 5 August 2001 breached standard V12 of the Television Code of Broadcasting Practice.

[21] Having upheld a complaint, the Authority may make an order under ss 13 and 16 of the Broadcasting Act 1989. It invited submissions from the parties.

[22] Ms Holt sought the broadcast of an apology and the imposition of an order for costs. TV3 emphasised its responsible attitude to the use of warnings in appropriate cases.

[23] Taking into account the nature of the breach on this occasion, the Authority imposes the following order.

Order

Pursuant to Section 13(1)(a) of the Broadcasting Act 1989, the Authority orders TV 3 Network Services Ltd to broadcast, within one month of the date of this decision, a statement explaining why the complaint was upheld. The statement shall be approved by the Authority and shall be broadcast at a time and date to be approved by the Authority.

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 and the complainant 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.  Rebekah Holt’s Complaint to TV3 Network Services Ltd – 8 August 2001
2.  TV3’s Response to the Complaint – 23 August 2001
3.  Ms Holt’s Referral to the Broadcasting Standards Authority – 24 August 2001
4. TV3’s Response to the Authority – 18 September 2001
5. Ms Holt’s Submission on Penalty – 22 November 2001
6. TV3’s Submission on Penalty – 23 November 2001