BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary  

Warning: This decision contains content that some readers may find distressing.

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

An item on 1 News reporting on a mass shooting in Buffalo, US, showed an edited clip from the attacker’s livestream video. The clip, approximately 16 seconds long and without audio, showed the masked attacker driving into the supermarket carpark, stopping his vehicle, getting out of the car and raising a gun. The complaint alleged the broadcast of the clip breached the good taste and decency, violence, and law and order broadcasting standards. While the Authority found the matter to be finely balanced, in the context of the broadcast as a whole – taking into account the content of the clip, and the public interest in both the broadcast as a whole and the clip itself – a majority of the Authority found that ultimately the broadcast of the clip did not reach a level of actual or potential harm sufficient to justify restricting the broadcaster’s freedom of expression under the nominated standards. A minority found the broadcast was in breach of the good taste and decency standard.

Not Upheld by Majority: Good Taste and Decency, Violence, Law and Order

The broadcast

[1]  An item on 1 News on 15 May 2022 reported on the mass shooting which had taken place on 14 May 2022 at a supermarket in Buffalo, New York. The item began as follows:

Host:            The FBI is tonight investigating an act of violent extremism after a gunman walked into a busy New York state supermarket and opened fire on shoppers and staff. At least ten people have been killed and several more injured.

[2]  Scenes from the aftermath of the events were shown, with victims being taken away by emergency workers, and the gunman (who is blurred) being taken away by Police.

[3]  The reporter stated:

Reporter:          Just moments earlier, the 18 year old college student armed with multiple guns livestreamed as he drove into the carpark of this supermarket in Buffalo, upstate New York. Then he started shooting.

[4]  As the reporter was speaking, footage from the gunman’s livestream was broadcast, showing him driving into the supermarket carpark, stopping his vehicle and getting out of the car. Fleeting reflections of the gunman’s masked face with just his eyes visible can be seen in the rear-view mirror, as well as his gloved hand turning the steering wheel. When he gets out of the car, there is a fleeting shot of a person (blurred) who appears to be walking through the carpark, and the gunman is shown raising a gun. The clip (approximately 16 seconds in length) ends here. There is no accompanying audio. A brief segment of the same footage is also shown later in the broadcast.

[5]  The reporter went on to state:

Reporter:          The teenager releasing a lengthy, rambling manifesto in which he described being influenced by the Christchurch mosque attack.

…

The shooting came in the middle of Saturday afternoon in a predominantly black area, a deliberate choice by the gunman to exact maximum terror.

This is the 198th mass shooting in the United States this year.

[6]  The report also featured comment from members of the Buffalo community, Buffalo Mayor Byron Brown and New York Congressman Brian Higgins including:

Higgins:          You have assault weapons that aren’t for hunting. They are for killing people. And, this is another example of the Federal Government failing to recognise this is a major public health crisis.

The complaint

[7]  Nigel Millar complained the item breached the good taste and decency, violence and law and order standards by airing part of the gunman’s livestream video:

• While the footage itself did not show violence, ‘it was clearly described as being immediately before shooting started.’
• ‘This is pure unnecessary sensationalism and promotes the interests and motives of the shooter.’
• ‘This was combined with a statement that this event was link (sic) to the’ 15 March mosque terrorist attacks. ‘I would expect that this coverage, truncated as it was just before shooting started, would be extremely distressing to people who have memories or were present during the Mosque attack,’ as well as others.
• ‘The Christchurch call was initiated in response to the Mosque shootings with the aim of diminishing the ability of terrorists or others creating harm of using the internet to promote or glorify their aims… [showing the livestream] normalises further these acts of terror and makes it known to people considering such action that at least some of their live streaming will be shown on prime time TV around the world.’
• ‘It cannot be said that showing the streamed video by the killer was in the public interest. To the contrary it was harmful and sets a dangerous precedent.’

The broadcaster’s response

[8]  TVNZ did not uphold the complaint. In particular, it noted:

• 1 News is aimed at an adult audience.
• ‘News broadcasts often discuss current events including serious crime such as murder, child abuse, rape, terror attacks and natural disasters of a large scale where people are killed; and there is an expectation that the broadcasts will carry some footage of crimes and disasters including film of bodies, accidents and civil unrest.’
• ‘…sufficient warning was given in the “coming up” teaser at the start of the bulletin, and in the introduction so that viewers could make an informed decision about whether they wished to see such material before it was shown.’
• ‘The footage which is shown is not graphic or unduly disturbing, no-one is shown being hurt and the weapon is not shown being used. Such footage is centrally relevant to the story, it shows the shooter arriving with the weapon and preparing to shoot without provocation. This information stops the possibility of false information being released which is favourable to the shooter.’
• While ‘…the information that the US shooter referenced the Christchurch mosque killer’s manifesto may be unsettling to some, the New York shooter’s manifesto is not explained or heard in the bulletin. The fact that he referenced the [mosque] shooting in this way is of considerable public interest for the New Zealand audience.’
• It did not agree that ‘…the 1 News item glamorised crime or condoned the actions of criminals in the ways alleged. The behaviour shown and discussed in the programme was portrayed for what it was, racially motivated, violent, extremism. There was no element of promotion or encouragement of the shooter’s activities. The programmes’ message was that this type of behaviour was of central concern.’

The standards

[9]  The good taste and decency standard¹ states current norms of good taste and decency should be maintained, consistent with the context of the programme. The standard is intended to protect audience members from broadcasts likely to cause widespread undue offence or distress, or undermine widely shared community standards.²

[10]  The violence standard³ requires broadcasters to exercise care and discretion when portraying or referencing violence. Its purpose is to protect audiences from unduly disturbing violent content.⁴

[11]  The law and order standard⁵ requires broadcasters to observe standards consistent with the maintenance of law and order, taking into account the context of the programme and the wider context of the broadcast. Its purpose is to prevent broadcasts which encourage viewers to break the law, or otherwise promote, glamorise or condone criminal or serious antisocial activity.⁶

Our analysis

[12]  We have watched the broadcast and read the correspondence listed in the Appendix.

[13]  The right to freedom of expression is an important right in a democracy and it is our starting point when considering complaints. We weigh the right to freedom of expression against the harm that may have potentially been caused by the broadcast. We may only intervene when the limitation on the right to freedom of expression is reasonable and justified, in light of actual or potential harm caused.

[14]  We appreciate the complainant’s concerns and acknowledge the broadcasting of excerpts of a terrorist’s livestream video raises complex issues. While finely balanced, in the context of the broadcast as a whole – taking into account the content of the clip, and the public interest in both the broadcast as a whole and the clip itself – a majority of the Authority have found that ultimately the broadcast of the clip did not reach a level of actual or potential harm sufficient to justify restricting the broadcaster’s freedom of expression under the nominated standards. A minority of the Authority found that the broadcast was in breach of the good taste and decency standard. Our reasoning is set out below.

Context

[15]  The context of the programme, and the wider broadcast are important considerations when assessing complaints under all three standards.⁷ The key contextual factors relevant here include:

• 1 News is an unclassified news programme targeted at an adult audience. The standards recognise that news programmes often include disturbing and challenging material reflective of the world we live in.⁸
• The clip of the livestream footage is brief, being only 16 seconds of an approximately three-minute item, which also included shots of police in the aftermath of the shooting, and interviews with locals on the scene, the Buffalo Mayor and a New York Congressman.
• The clip does not contain any explicit violent or graphic content.
• There is no audio to the clip.
• There is only a brief shot of the weapon.
• The attacker is not identifiable in the clip, with only fleeting reflections of his masked face visible in the rear-view mirror, as well as his gloved hand turning the steering wheel.
• The overall effect of the item was to condemn the attacker.
• There was no explicit verbal warning that a clip from the livestream video was going to play.
• There was a high public interest in the report as a whole, which reported on a terrorist attack in which 10 people were killed and others injured, and where the gunman made reference to the terrorist from the March 2019 attacks in New Zealand. As reflected in the report, the attack was also an example of a significant broader issue with gun violence in the US.

Good Taste and Decency

Majority view (Susie Staley, John Gillespie)

[16]  Under the good taste and decency standard, current norms of good taste and decency, consistent with the context of the programme and the wider context of the broadcast, must be maintained. If content is likely to offend or disturb a significant section of the audience, an appropriate audience advisory should be broadcast prior to the content.⁹

[17]  A broadcast’s context may justify the inclusion of distasteful material or minimise its harmfulness. Challenging material broadcast on a news programme for example, is more likely to be acceptable.¹⁰ Similarly, offensive material that advances our understanding of important issues is unlikely to contravene this standard.¹¹ Some extreme material however, regardless of the context in which it is offered, may go too far.¹² 

[18]  In making our decision, we must weigh the value of the broadcast, and the public interest in both the clip and the programme as a whole, against the harm alleged to have been caused. The complainant submitted the footage ‘would be extremely distressing to people who have memories or were present during the Mosque attack.’

[19]  Firstly, we readily acknowledge that broadcasters should be particularly cautious when broadcasting footage taken from a terrorist’s livestream video. Whether such footage should be broadcast is very much dependent on the context and what exactly the footage shows. If a broadcaster chooses to play an excerpt of such a video, they must consider:¹³

• whether it is likely to promote or glorify the attacker or their method, message and actions; and
• what is necessary to give the public a sufficiently comprehensive (but not unduly sanitised or overly sensationalised) account of what happened, enabling them to understand its scale and significance.

[20]  We consider the item in this case as a whole had high value in terms of the right to freedom of expression and carried a high level of public interest. The item’s subject was a terrorist attack in Buffalo, US, in which 10 people were killed and several others injured. It occurred in an environment of increasing US gun violence and increasingly regular mass shootings¹⁴ and included commentary regarding the seriousness of this issue. In addition, the gunman made reference to the terrorist from the March 2019 attacks in New Zealand and filmed similar livestream footage of the attack. The media play a critical role in informing the public about serious events like these, and it is important that audiences are provided with sufficient information to enable them to understand the scale and significance of such events.

[21]  We also consider there was a public interest in showing the particular excerpt of the video. The content of the clip highlighted for viewers both the attacker’s level of pre-meditation and preparedness and the ease with which such an attack could be carried out. The use of the images was impactful and allowed the audience to have a deeper understanding of how the events occurred.

[22]  The clip shown was heavily edited by the broadcaster to only show the gunman driving into the supermarket carpark, stopping his vehicle, getting out of the car and raising a gun. It was very brief, had no audio, and, while suggestive of the violence to come, did not contain any explicit violence or graphic content. Consistent with the broadcast as a whole, it also did not glorify the attacker, detail his individual motivations or promote his particular message in any way. We acknowledge the implication of ensuing violence, given the shooter is shown getting out of the car and raising a gun. We also acknowledge the footage may have been distressing to people who have been subject to or otherwise affected by similar attacks. However, in the context, as part of a news report concerning a mass shooting and ongoing gun violence in the US, we do not consider what was shown in the clip was likely to cause widespread undue offence or distress, or undermine widely shared community standards.

[23]  Nor do we consider the clip was likely to significantly offend a wide section of the community just by virtue of its origin and nature, having been filmed by the attacker for the purposes of distribution. While care must be taken with such footage, as we have previously recognised, the inclusion of such clips may be acceptable depending on the particular clip and context.¹⁵

[24]  We have also considered whether the broadcaster took sufficient steps to inform viewers of the nature of the coverage and the likely upcoming content. In broadcasting, audience expectations are crucial.¹⁶ Audiences who know what they are getting can usually avoid this material or supervise their children’s exposure to it.¹⁷ Overall, we do not consider the clip went beyond audience expectations of a news report on a mass shooting. Challenging and distressing content was signposted by the host in the introduction to the item. However, we would encourage broadcasters to consider including a verbal warning if they do choose to broadcast excerpts of a terrorist’s livestream.

[25]  Overall, in the context of the item as described above, we do not consider the broadcast of the clip was likely to cause widespread undue offence or distress, or undermine widely shared community standards, and therefore did not breach the good taste and decency standard.

Minority view (Tupe Solomon-Tanoa’i)

[26]  I, the minority, agree with the majority’s views that what was actually shown in the clip (which did not feature any explicit violence and did not identify the attacker) was not likely to cause widespread undue offence or distress, or undermine widely shared community standards. However, I consider the broadcast of footage filmed by the attacker for the purposes of distribution would be likely to significantly offend a wide section of the community.

[27]  The clip was taken from a livestream video filmed and distributed by the alleged attacker, for the sole purpose of glorifying and promoting an act of extreme terrorist violence. Despite the clip showing only the attacker’s arrival on the scene, the broadcast gave the attacker a platform (on mainstream media) for his hatred. I consider it would be widely offensive to people that the broadcaster carried out the attacker’s wishes and disseminated part of the livestream video to its audience, allowing the attacker to gain the desired notoriety. 

[28]  The clip was not needed to convey the scale and significance of the events depicted. The story would have been as impactful without it. In these circumstances, I consider the harm likely to result from broadcasting the particular clip outweighs any public interest in its broadcast. Accordingly, I uphold the complaint under the good taste and decency standard.

Violence

[29]  As noted above, the purpose of the violence standard is to protect audiences from unduly disturbing violent content. Any depiction of, or reference to, violence should be justified by context.¹⁸ Broadcasters should also exercise caution with content likely to incite or encourage violence or brutality.¹⁹

[30]  The violence standard recognises that in news, current affairs and factual programming, disturbing or alarming material is often shown to reflect a world in which violence occurs.²⁰ This material, however, must be justified in the public interest. Broadcasters must use judgement and discretion to determine the degree of graphic detail to be included and audience advisories should be used where appropriate.²¹

[31]  As discussed above, the clip at issue was very brief, had been carefully edited, and did not feature any explicit violent or graphic content. We agree that the implications of the clip were disturbing, reflecting the atrocity that had occurred, and that this could have been distressing for some audience members. However, we consider the implication of violence was justified by the context of the broadcast, and in particular the high public interest in the subject matter of the item and the clip itself. Challenging and distressing content was signposted by the host in the introduction to the item.

[32]  Further, we do not consider the broadcasting of the clip was likely to incite or encourage violence by glamorising or promoting the attacker’s actions. The attacker was not identifiable in the clip and the brief excerpt with no audio did not glorify him or promote any of his violent messages. The tone of the broadcast was heavily condemnatory of the attacker.

[33]  For these reasons, we do not uphold the complaint under the violence standard.

Law and Order

[34]  The purpose of the law and order standard is to prevent broadcasts that encourage audiences to break the law, or otherwise promote or condone criminal or serious antisocial activity.²²

[35]  The standard is concerned with broadcasts that actively undermine, or promote disrespect for, the law or legal processes. Broadcasts which condone criminal activity or present it as positive or humorous may have this effect.²³ Explicit instructions on how to perform a criminal technique may also undermine law and order.²⁴

[36]  The complainant has alleged the broadcast of the clip normalises acts of terror and ‘makes it known to people considering such action that some of their live streaming will be shown on prime time TV around the world.’ We acknowledge the complainant’s concerns in this regard, however for similar reasons to our assessment under the previous two standards, we do not consider the broadcast of the clip was likely to promote serious antisocial or illegal behaviour.

[37]  We do not consider the clip itself, being very brief and heavily edited, where the attacker is unidentifiable, had the effect of glamorising the attacker’s actions or encouraging audiences to take the same action. It did not have an educational element or amplify the attacker’s message.²⁵ On the contrary, the views expressed in the wider broadcast were condemnatory of the attack and what was shown reflected the public interest in reporting on the gravity of the situation. The standard is not intended to prevent the depiction or reporting on illegal activity.

[38]  Accordingly, we do not find a breach of the law and order standard.

For the above reasons the Authority does not uphold the complaint.
Signed for and on behalf of the Authority

Susie Staley
Chair
19 October 2022

Appendix

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

1  Nigel Millar’s formal complaint to TVNZ – 15 May 2022

2  TVNZ’s decision on the complaint – 3 June 2022

3  Millar’s referral to the Authority – 4 June 2022

4  TVNZ’s further comments – 6 July 2022

5  Millar’s confirmation of no further comments – 6 July 2022

¹ Standard 1, Free-to-Air Television Code of Broadcasting Practice
² Commentary: Good Taste and Decency, Broadcasting Standards in New Zealand Codebook, page 12
³ Standard 4, Free-to-Air Television Code of Broadcasting Practice
⁴ Commentary: Violence, Broadcasting Standards in New Zealand Codebook, page 14
⁵ Standard 5, Free-to-Air Television Code of Broadcasting Practice
⁶ Commentary: Law and Order, Broadcasting Standards in New Zealand Codebook, page 15
⁷ Guidelines 1a, 4b and 5b
⁸ Lewis and MediaWorks TV Ltd, Decision No. 2017-069 at [14]
⁹ Guideline 1c
¹⁰ Commentary: Good Taste and Decency, Broadcasting Standards in New Zealand Codebook, page 12
¹¹ As above
¹² As above
¹³ See Broadcasting Standards Authority | Te Mana Whanonga Kaipāho “Considerations for Reporting on Terrorism, Violent Extremism and Crisis Events” (March 2020) <www.bsa.govt.nz>
¹⁴ Gun Violence Archive <www.gunviolencearchive.org>
¹⁵ NT and Television New Zealand Ltd, Decision No. 2019-028
¹⁶ Commentary: Good Taste and Decency, Broadcasting Standards in New Zealand Codebook, page 12
¹⁷ Commentary: Good Taste and Decency, Broadcasting Standards in New Zealand Codebook, page 12
¹⁸ Guideline 4a
¹⁹ Guideline 4c
²⁰ Guideline 4d
²¹ Guideline 4d
²² Commentary: Law and Order, Broadcasting Standards in New Zealand Codebook, page 15
²³ Commentary: Law and Order, Broadcasting Standards in New Zealand Codebook, page 15
²⁴ As above
²⁵ As was the case in: UJ and Sky Network Television Ltd, Decision No. 2019-030