BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

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

An item on Newshub reported on the rescue of an American woman who had been held captive as a sex slave by a serial killer for two months in South Carolina. The item featured newly-released footage of the woman’s rescue, and showed her chained to the wall of a shipping container by her throat. The item also featured footage of the woman’s appearance on the American talk show, Dr Phil, during which she discussed her kidnapping. The item was preceded by the following verbal audience advisory: ‘A warning: some viewers may find our next story disturbing’. The Authority did not uphold a complaint that this audience advisory was inadequate given the nature of the footage, which was violent, inappropriate for children and further breached the featured woman’s privacy. The Authority found, taking into account contextual factors such as Newshub’s target audience and audience expectations of news programmes generally, that the audience advisory was adequate for the content shown. A level of maturity was required to understand the full implications of the footage, and therefore the item would not have unduly disturbed child viewers. Finally, the broadcast did not result in a breach of the woman’s privacy, given the information was available in the public domain at the time of broadcast and no private information was therefore disclosed.

Not Upheld: Good Taste and Decency, Children’s Interests, Violence, Privacy

Introduction

[1]  An item on Newshub reported on the rescue of an American woman who had been held captive as a sex slave by a serial killer for two months in South Carolina. The item featured newly-released footage of the woman’s rescue, and showed her chained to the wall of a shipping container by her throat. The item also featured footage of the woman’s appearance on the American talk show, Dr Phil, during which she discussed her kidnapping. The item was preceded by the following verbal audience advisory: ‘A warning: some viewers may find our next story disturbing’.

[2]  Felicity Moore complained that the audience advisory was inadequate given the serious nature of the footage. The woman’s face was clearly visible and the manner of her imprisonment clearly shown, and these should have been blurred during the item, she said. Ms Moore considered the footage of the woman chained up was violent and inappropriate for children, and also breached the woman’s privacy.

[3]  The issues raised in Ms Moore’s complaint are whether the broadcast breached the good taste and decency, children’s interests, violence and privacy standards of the Free-to-Air Television Code of Broadcasting Practice.

[4]  The item was broadcast on 6 June 2017 on Three. The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix.

Did the item threaten current norms of good taste and decency?

[5]  The purpose of the good taste and decency standard (Standard 1) is to protect audience members from viewing broadcasts that are likely to cause widespread undue offence or distress, or undermine widely shared community standards. Broadcasters should take effective steps to inform audiences of the nature of the programme, and enable viewers to regulate their own and children’s viewing behaviour.¹

The parties’ submissions

[6]  Ms Moore submitted that:

• The audience advisory prior to the item did not adequately indicate the serious nature of the footage, or the impact this footage might have on viewers. The item, which featured images of a captive woman chained by her neck, required a more descriptive audience advisory, and not a ‘generic, cover-all’ warning.
• The broadcaster should have blurred the woman’s face and the area around her neck where the chain was attached.
• There was limited public interest in the news item.
• The broadcaster should have carefully considered the context of New Zealand’s high rates of domestic violence and violence against children and women when broadcasting the item.

[7]  MediaWorks submitted that:

• Newshub is a news programme screened at a scheduled time each day, with an adult target audience.
• The item was preceded by an audience advisory, which gave viewers a clear indication that the item would contain challenging material.
• The footage of the woman’s rescue did not contain unacceptably challenging imagery or graphic detail. Despite the circumstances in which she was found, the woman appeared ‘relatively comfortable and was not injured or displaying overt distress’. The footage provided viewers with an understanding of the nature of the woman’s captivity and was appropriate to include in the story.
• From time to time, it is necessary in the public interest for news programming to accurately report tragic, upsetting or disturbing events. MediaWorks tries hard to ensure the right balance is struck between the right of the public to be informed, and the possibility that some viewers might be upset or disturbed by a report.

Our analysis

[8]  When we determine a complaint alleging a breach of broadcasting standards, we first give consideration to the right to freedom of expression. We weigh the value of the broadcast item, as well as the broadcaster’s right to freedom of expression, against the level of actual or potential harm that might be caused by the broadcast. In this case, Ms Moore has submitted that MediaWorks caused harm by broadcasting an item which contained offensive and violent content and was inappropriate for children, without an adequate audience advisory for viewers.

[9]  Context is also highly relevant to a consideration of the nominated standards (good taste and decency, children’s interests and violence standards). Relevant contextual factors in this case include:

• Newshub is an unclassified news programme screened at 6pm each weekday
• Newshub is targeted at an adult audience
• the nature of news programmes, which frequently contain strong or adult material such as crime or violence. As such, the Authority recognises that children are unlikely to be watching these programmes unsupervised
• the use of an audience advisory prior to the item
• the signposting by the presenter at the outset of the item, which gave an indication of its likely content
• audience expectations of Newshub and of news programming in general
• the relatively high public interest in the broadcast.

[10]  The Authority’s established approach to complaints concerning the good taste and decency standard is that, where broadcasters are able to successfully manage their audience’s expectations by providing information sufficient for them to make informed choices about content – such as audience advisories – breaches of the standard will be less likely.²

[11]  In this case, having regard to the factors outlined above, we are satisfied that the information provided to viewers was sufficient to prepare them for the likely content in this item. Newshub is an unclassified news programme, targeted at an adult audience. As noted by the broadcaster, the broadcasting standards recognise that news programmes by their nature are distinctive, in that they will often contain material that is challenging and may disturb viewers. It is for this reason that news programmes do not carry a programme classification, and instead, the focus is on providing effective advisories to the audience where content may disturb, to enable viewers to make a different viewing choice, or to exercise discretion.

[12]  Here, the item was preceded by a clear verbal warning from the newsreader that ‘some viewers may find our next story disturbing’. In our view, to include any further detail in the verbal warning may have been challenging in itself for some viewers. The introduction to the item did however also signpost the likely visual content by describing the subject matter and the footage that would feature in the item. We consider this was adequate to signal to viewers the item’s likely content, and to allow them an opportunity to decide whether they wanted to continue watching, and whether they wanted any child viewers to continue watching.

[13]  We acknowledge that the implications of the item were challenging. We also acknowledge the complainant’s concerns regarding the issues of domestic violence and child abuse in New Zealand. However, as we have said, news items will often report on challenging material, reflecting the reality of the world in which we live, and we consider there was a level of public interest in the woman’s rescue and her ordeal. The footage itself showed the woman in a relatively calm state, she did not appear to be in immediate distress, and spoke calmly to her rescuers. While it showed the manner of her imprisonment, it did not contain graphic visual detail. In relation to younger child viewers in particular, we think a level of maturity was needed to understand the full implications of what was shown.

[14]  Overall, we find that the audience advisory given, in combination with the contextual factors outlined above, adequately informed viewers about the programme’s likely content. Taken in context the broadcast did not threaten standards of good taste and decency.

[15]  Accordingly we do not uphold the complaint under Standard 1.

Did the broadcaster adequately consider children’s interests?

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

The parties’ submissions

[17]  Ms Moore submitted that:

• The footage featuring the woman chained up was violent, and the description of the woman as a ‘sex slave’ was also inappropriate.
• This was against the interests of children and set a dangerous precedent in New Zealand, where there is a disproportionate incidence of violence against children.

[18]  MediaWorks submitted that:

• Although news and current affairs programmes screen prior to the Adults Only timeslot at 8.30pm, these programmes are unlikely to be viewed by unsupervised young children who, given the choice, are more likely to watch programming directed at them screening on other channels.
• While this material may have been disturbing for younger viewers, it was not uncommon for news bulletins to contain material that might be challenging for child viewers. It is expected that parents will monitor their children’s viewing on that basis.

[19]  In response, Ms Moore submitted that the general public was not always able to police their children’s viewing habits, and the broadcaster’s response did not acknowledge on-demand services or the ability to watch the news on digital devices, which are not time-specific.

Our analysis

[20]  As we have noted above, news programmes such as Newshub are unclassified and targeted at adult viewers. While these kinds of programmes are unlikely to appeal to children, broadcasters should still be mindful of children’s interests and other broadcasting standards, and include warnings where appropriate.³

[21]  We accept that the item verbally referred to the woman as being held captive as a ‘sex slave’, and that it showed her chained to the wall of the container where she was imprisoned. We also acknowledge the complainant’s submission that parents and caregivers are not always able to monitor children’s viewing habits.

[22]  In this case a clear warning was broadcast which enabled parents and caregivers to exercise discretion if they did not wish their children to continue watching. For any children who did view the item, we do not consider the footage that was later shown was of a level that would have unduly disturbed or adversely affected child viewers. It did not contain graphic visual detail, and a level of maturity was required for viewers to understand the full implications of what was being shown. We are satisfied that in these circumstances the broadcaster adequately took into consideration children’s interests.

[23]  We therefore do not uphold this aspect of the complaint.

Did the broadcaster exercise adequate care and discretion when dealing with the issue of violence?

[24]  The violence standard (Standard 4) states that broadcasters should exercise care and discretion when referencing violence. In news, current affairs and factual programmes, where disturbing or alarming material is often reported to reflect a world in which violence occurs, any violent 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 watching.
• Use an audience advisory when appropriate.

The parties’ submissions

[25]  Ms Moore submitted that:

• The explicit images of the woman chained by her neck inside a shipping container were violent, appalling and were not justified by context.
• The broadcaster did not exercise due caution with content that may influence or encourage violence or brutality. The broadcaster failed to use caution and failed to deliver an explicit audience advisory.

[26]  MediaWorks submitted that:

• The item did not contain unacceptably violent content. While some of the footage was confronting, it was not unacceptably graphic for broadcast during Newshub.
• Although the report contained references to violence, it did not contain footage of violence. The report was also preceded by an audience advisory which gave viewers a clear indication that it might contain challenging material.

Our analysis

[27]  Like the broadcaster, we accept that some viewers may have found the material in this item, and its subject matter, challenging. Items which feature or allude to rape or sexual violence should be treated with care and broadcasters should use audience advisories if the content is likely to disturb.⁵

[28]  We agree that this item required an audience advisory, as audiences may have found the description of the woman’s ordeal distressing. However, we do not find that in this case the footage reached the threshold necessary for us to find a breach of the violence standard and restrict the broadcaster’s right to freedom of expression.

[29]  The violence standard is clear that news programmes may feature disturbing or alarming material, which reflects a world in which violence occurs. The material should be justified in the public interest and judgement and discretion used to decide the degree of graphic detail, and whether an audience advisory should be used.⁶

[30]  As we have outlined above, the footage shown during this item did not feature graphic violent detail, and the item carried a level of public interest in reporting the woman’s rescue. The implications of the item were challenging, however the footage itself did not show any violent acts occurring. We are satisfied that the audience advisory prior to the item was sufficient to warn viewers about the level of content shown, and that the broadcaster did exercise appropriate judgement in determining the level of content that should be included.

[31]  Accordingly we do not uphold the complaint under Standard 4.

Did the broadcast breach the featured woman’s privacy?

[32]  The privacy standard (Standard 10) states that broadcasters should maintain standards consistent with the privacy of the individual. The standard aims to protect, where reasonable, people’s wishes not to have themselves or their affairs broadcast to the public. It seeks to protect their dignity, autonomy, mental wellbeing and reputation, and their ability to develop relationships, opinions and creativity away from the glare of publicity. But it also allows broadcasters to gather, record and broadcast material where this is in the public interest.

The parties’ submissions

[33]  Ms Moore submitted that the woman’s face and the manner of her imprisonment were clearly shown. The broadcast of this footage was not in the woman’s interests, and was highly objectionable.

[34]  MediaWorks submitted that:

• The footage of the woman’s rescue had appeared on United States television news networks. The woman also appeared on the talkshow Dr Phil to discuss her kidnapping publicly and at length. In Dr Phil neither the woman’s identity nor her appearance were masked.
• The woman’s identity and the details of her kidnapping were in the public domain. It was clear from her appearance on Dr Phil that she had consented to the further broadcast of this information. The woman therefore had no expectation of privacy over the identified material.

Our analysis

[35]  Under Standard 10, we consider the following three criteria to assess whether there has been any breach of privacy: the individual whose privacy has allegedly been interfered with must be identifiable; the broadcast must disclose private information or material about that individual; and the disclosure must be considered highly offensive to an objective reasonable person.⁷

[36]  We accept that the woman was identified during this broadcast. Her face was clearly shown in the footage supplied, and she was named throughout.

[37]  The next question is whether any private information was broadcast about the woman, and whether she had a reasonable expectation of privacy over the material broadcast.

[38]  Guideline 10d to the privacy standard states that a person will not usually have a reasonable expectation of privacy in relation to matters in the public domain.⁸ We are satisfied that the information disclosed during this item, including the woman’s name and the image of her face, was already in the public domain at the time of this broadcast.

[39]  This case was covered extensively by New Zealand media. This coverage named the woman and also featured photos of her. As noted by the broadcaster, the footage featured in the news item was captured by body cameras worn by officers when they located the woman, and the footage was publicly released after her actual rescue. The woman subsequently appeared on US television (named and without any masking of her appearance) to tell her story. Her consent to this public appearance can reasonably be inferred.

[40]  Given the featured woman’s appearance on television in the United States, and the extensive media coverage of the case here in New Zealand, we are satisfied that no private material was disclosed during the broadcast which resulted in a breach of the woman’s privacy.

[41]  For these reasons, we do not uphold the privacy complaint.

For the above reasons the Authority does not uphold the complaint.

Signed for and on behalf of the Authority

Peter Radich
Chair
21 September 2017

Appendix

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

1      Felicity Moore’s formal complaint – 12 June 2017
2      MediaWorks’ response to the complaint – 7 July 2017
3      Ms Moore’s referral to the Authority – 26 July 2017
4      MediaWorks’ confirmation of no further comment – 18 August 2017

¹ Guideline 1b to Standard 1 – Good Taste and Decency

² Commentary on Standard 1 – Good Taste and Decency, Broadcasting Standards in New Zealand Codebook, page 12

³ Guideline 2c to Standard 2 – Programme Information, Broadcasting Standards in New Zealand Codebook, page 35

⁴ Guideline 4d to Standard 4 – Violence

⁵ Guideline 4e to Standard 4 – Violence, Broadcasting Standards in New Zealand Codebook, page 36

⁶ Guideline 4d to Standard 4 – Violence, Broadcasting Standards in New Zealand Codebook, page 36

⁷ Guidelines 10a and 10b

⁸ Guideline 10d