BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
Beyond the Darklands: Antonie Dixon – case study of convicted murderer Antonie Dixon based on the recollections of friends, family, neighbours, police and others as well as analysis by psychologist – programme mentioned his marriage to the complainant and referred to her several times – allegedly in breach of privacy, accuracy and fairness

Findings
Standard 3 (privacy) – no private facts revealed about the complainant – complainant’s children not identifiable in the programme – not upheld

Standard 5 (accuracy) – neighbour’s comments were clearly her recollection of events – programme not inaccurate or misleading – not upheld

Standard 6 (fairness) – complainant and children not treated unfairly – not upheld

This headnote does not form part of the decision.

Broadcast

[1]   An episode of Beyond the Darklands, a series in which a clinical psychologist, Nigel Latta, profiled notorious New Zealand criminals, was broadcast on TV One at 9.30pm on Tuesday 2 February 2010. The episode examined the life of Antonie Dixon, who was convicted for attacking two female friends with a samurai sword, and for shooting a man at a petrol station. The programme was introduced as follows:

Clinical psychologist Nigel Latta has worked with our most serious offenders for 19 years. Tonight he takes us beyond the darklands into the mind of Antonie Dixon to ask how he became one of New Zealand’s most infamous criminals. Antonie Dixon caught the attention of the nation when he arrived in court with a bizarre haircut and wild staring eyes. At Pipiroa in January 2003, Dixon had embarked on a methamphetamine-fuelled rampage. He attacked his two friends... with a samurai sword. Each woman had a hand severed in a sustained assault.

[2]   Approximately 15 minutes into the programme, the narrator said, “At 19, Antonie Dixon met Wendy Ross who he married and had two children with. However domestic life did nothing to stop Dixon’s criminal offending.” Two photos were shown, the first of the family sitting on a couch together, and the second of Mr Dixon holding a baby. In both photos only Mr Dixon’s face was visible; the other faces were blurred.

[3]   During the rest of the programme, the following comments were made by the narrator with reference to Ms Ross:

• “In the early 1990s Dixon moved to the East Auckland village of Beachland with his wife Wendy and the kids. He had an immediate impact on the area.”
• “At times he made his wife communicate with him only by writing as he feared his phone was tapped and his house was bugged.”
• “When he and his wife went out to socialise they took two cars so Dixon could come home if he became obsessively suspicious of people around him.”
• “His wife said he would rant and rave about demons and being one of the chosen ones. Dixon’s disturbing behaviour reached a peak when his wife found him trying to dig what he thought was a tracking device out of his knee with a knife.”

[4]   The programme also included comments from a neighbour about an incident that had occurred between Mr Dixon and the neighbour’s then boyfriend:

At one stage he had some work done on his nose and so he had a nose plaster on and he’d said to Barry who was my boyfriend you know, don’t fucking talk about the nose, you know. Soon enough Barry gets pissed and trots over to their place and you know [talks] about the nose and it was straight away, Wendy, get the bat, and he battered Barry who was a big man, battered him across the road with a baseball bat and if he had have been a smaller man maybe it would’ve killed him but he had something like 20 odd bats...

Complaint

[5]   Wendy Ross made a formal complaint to Television New Zealand Ltd, the broadcaster, alleging that the programme breached standards relating to privacy, accuracy and fairness. She said that the programme’s reference to her had had a negative impact on her life and also her children’s because they were identified through the use of her name.

[6]   Looking first at accuracy, Ms Ross argued that the neighbour’s comments “implicating [her] in a serious brutal assault” were incorrect and gave the impression that she was also involved in criminal activities.

[7]   The complainant considered that the programme was unfair because it identified her children, and it was broadcast two days before the anniversary of Mr Dixon’s death. She said that her children had been traumatised by his death and “the unnecessary exposure due to the airing of this programme has magnified [their] distress”.

[8]   Ms Ross argued that the programme had breached her privacy and her children’s privacy. The programme had caused her embarrassment and distress, she said, because she lived in a small community and people had been approaching her in the street expressing their opinions about the programme. She said that if she had not been named her children would have remained anonymous, and considered that the programme was not in their best interests and that they had been exposed to unnecessary ridicule as a result.

[9]   The complainant concluded by saying that she had separated from Mr Dixon in 1998 and that the publicity surrounding his case had made it very difficult to move forward and to protect herself and her children from ongoing harassment.

Standards

[10]   Standards 3, 5 and 6 of the Free-to-Air Television Code of Broadcasting Practice are relevant to the determination of this complaint. They provide:

Standard 3 Privacy

Broadcasters should maintain standards consistent with the privacy of the individual.

Standard 5 Accuracy

Broadcasters should make reasonable efforts to ensure that news, current affairs and factual programming:

• is accurate in relation to all material points of fact; and/or
• does not mislead.

Standard 6 Fairness

Broadcasters should deal fairly with any person or organisation taking part or referred to.

Broadcaster's Response to the Complainant

[11]   Looking at privacy, TVNZ stated that it must first determine whether Ms Ross was identifiable in the broadcast. It accepted that she was identified as her full name was disclosed, though it noted that her face was blurred in the photo that was shown.

[12]   The next step was to consider whether any private facts were disclosed about Ms Ross. TVNZ maintained that nothing in the programme could be considered a private fact. Ms Ross’ name and relationship with Mr Dixon were a matter of public record, it said. It noted that in 2009 it was widely reported that the complainant intended to sue the Department of Corrections over Mr Dixon’s death and that she was quoted in a Sunday item on 7 March 2009. Further, Ms Ross was identified when she appeared as a witness at Mr Dixon’s trial in 2005 and at his retrial in 2008. TVNZ noted that Ms Ross had been referred to several times in articles in The New Zealand Herald in relation to both trials.

[13]   TVNZ said that the programme makers had been careful to pixellate both Ms Ross and her children so that they could not be identified visually in the programme. The programme makers said, “given that Ms Ross’ name and the fact of her having been Mr Dixon’s wife were widely reported, both in the print and TV media, we did not believe that we were in any way ‘identifying’ her in such a way as to ‘unfairly identify and humiliate’ her children in the small community that they live in.”

[14]   Further, the broadcaster noted that Ms Ross had lived in the same community for 10 years during Mr Dixon’s trial, appeal, retrial and death, all of which were reported on, and that Ms Ross’ name was often associated with these reports. It said, “No doubt various members of ... the ‘small community’ of Waiheke were, and still are, very aware of your identity and that of your children’s due to the ongoing media interest and various publications and news items.”

[15]   TVNZ did not consider that public facts such as the complainant’s name and relationship with Mr Dixon had become private with the passage of time, noting that the retrial was in 2008 and further news articles were published in 2009. It maintained that no material was obtained by “prying” or disturbing Ms Ross’ interest in solitude. TVNZ also was of the view that the disclosure of her name and relationship would not have been considered highly offensive by a reasonable person.

[16]   The broadcaster concluded that, given the amount of press naming Ms Ross – some of which stated that she and Mr Dixon had children – the programme had not disclosed any private facts about her or her children. It declined to uphold the privacy complaint.

[17]   Turning to accuracy, TVNZ said that the neighbour who made the comments had been interviewed extensively in relation to the incident between her boyfriend and Mr Dixon, and that she had recently confirmed again that she had at the time “asked Antonie what happened. He said, ‘if [Barry] wants to be smart I told Wendy to get the bat.” It said she had then talked to Barry when he recovered and he confirmed that this was what happened. TVNZ said that “this is the way that three people remembered the incident – there was no implication that [Ms Ross was] violent towards Barry”. TVNZ therefore concluded that the programme was accurate and it declined to uphold the Standard 5 complaint.

[18]   With regard to Standard 6 (fairness) and the complainant’s objection to the programme screening two days before the anniversary of Mr Dixon’s death, TVNZ noted that stories about him were frequently in the press, and that the production company commented:

...part of the audience attraction for programmes such as Beyond the Darklands rests in the topicality of the offenders and offending involved. Where possible we select stories that are relatively current in terms of the public’s memory of the relevant events. This is simply part of the creative process, rather than any desire to give pain to those peripherally involved with the offenders who appear in the series.

[19]   TVNZ said that the programme was scheduled months in advance and that no offence was intended to the complainant or her family. It noted that the programme did not discuss Mr Dixon’s death in detail and no “footage of bodies or human remains” was shown. It concluded that “it is inevitable that programmes will be shown about Antonie Dixon; his crimes are notorious in New Zealand”.

[20]   For the reasons discussed under privacy, TVNZ did not consider it was unfair to identify the complainant in the programme, or that the programme was unfair to her children. It maintained that if people were aware of their identities due to ongoing media interest that was not due to the material in Beyond the Darklands.

[21]   The broadcaster said that the comments made by the neighbour interviewed were her genuine recollection of the incident and argued that it did not implicate Ms Ross in the attack. It considered that it was clear from the programme that Mr Dixon was the one who beat Barry.

[22]   Accordingly, TVNZ concluded that the programme was not unfair and it declined to uphold the Standard 6 complaint.

Referral to the Authority

[23]   Dissatisfied with the broadcaster’s response, Ms Ross referred her complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989. She maintained that the neighbour’s comments were inaccurate. Ms Ross said that she had not given permission for the programme to use her name and considered that the references to her were unnecessary. She reiterated her view that the programme breached her privacy and that she and her children should not have to relive past traumatic events through unnecessary media exposure.

Authority's Determination

[24]   The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.

Standard 3 (privacy)

Privacy principles nominated by the complainant

[25]   We note that Ms Ross nominated privacy principles 3(a) and 4 in her complaint. Privacy principle 3(a) typically relates to the use of hidden camera footage (see, for example, Tashkoff and TVNZ,¹O’Connell and TVWorks²), and we do not consider that it is relevant in the circumstances.

[26]   The Authority has stated on a number of occasions that privacy principle 4 was developed to prevent the broadcast of a person’s details in circumstances where they are disclosed for the purposes of encouraging harassment of that person by members of the public (for example, de Villiers and TVNZ³, South Pacific Pictures Ltd and RadioWorks⁴). On this occasion, we consider that the mention of Ms Ross was incidental to telling Mr Dixon’s story, and therefore that it was not for the purposes of encouraging harassment of her.

Privacy principle 1

[27]   We consider that privacy principle 1 is most relevant on this occasion. It states:

It is inconsistent with an individual’s privacy to allow the public disclosure of private facts, where the disclosure is highly offensive to an objective reasonable person.

[28]   When we consider a privacy complaint, we must first determine whether the person whose privacy has allegedly been interfered with was identifiable in the broadcast. As the complainant’s full name was disclosed, we are satisfied that she was identifiable.

[29]   Next, we must consider whether the broadcast disclosed any private facts about Ms Ross. The programme mentioned Ms Ross’ relationship with Mr Dixon and that they had two children.

[30]   In our view, none of the information contained in the programme about Ms Ross (see paragraph [3]) amounted to private facts. Ms Ross’ name and her relationship with Mr Dixon are matters of public record. She appeared in Court as a witness in his trials, during which time her name was mentioned in the media, and she has publicly commented following his death.

[31]   Given that the broadcast did not disclose any private facts about Ms Ross, we find that privacy principle 1 was not breached.

Privacy principle 2

[32]   With regard to whether the programme disclosed public facts which have now become private (privacy principle 2), we consider that Ms Ross’ name is connected to Mr Dixon’s crimes, which, as stated above, remain of considerable public interest in New Zealand. For this reason, we are of the view that her connection to him and the information disclosed in the programme has not become private, particularly taking into account that his retrial and death were relatively recent and were widely reported.

[33]   Accordingly, we find that the programme did not breach Ms Ross’ privacy.

Privacy of Ms Ross’ children

[34]   Ms Ross also argued that the disclosure of her name meant that her children were unnecessarily identified and their privacy breached. We note that the children were not named and photos of them were blurred. We therefore consider that the children would only have been identifiable to viewers who already knew that Ms Ross was their mother. We consider that it is likely that any viewer who could have identified the children in this way would already be aware of Ms Ross’ connection to Antonie Dixon. Accordingly, we find that the children’s privacy was not breached and we decline to uphold this part of the complaint.

Standard 5 (accuracy)

[35]   Standard 5 states that broadcasters should make reasonable efforts to ensure that news, current affairs and factual programming is accurate in relation to all material points of fact, and does not mislead.

[36]   Ms Ross argued that the neighbour’s comments in the programme “implicating [her] in a serious brutal assault” were incorrect and gave the impression that she was also involved in criminal activities. In our view, the neighbour’s comments were clearly her personal views and recollection of the events that occurred, and therefore were exempt from the accuracy standard under guideline 5a. In any case, we have not been presented with any evidence that her recollection was inaccurate, and we disagree that her comments implicated Ms Ross in the assault; it was clear that it was Mr Dixon who had carried out the beating of the neighbour’s boyfriend.

[37]   We therefore conclude that the programme was not inaccurate or misleading in breach of Standard 5.

Standard 6 (fairness)

[38]   Standard 6 states that broadcasters should deal fairly with any person or organisation taking part or referred to in a programme.

[39]   Ms Ross considered that the programme was unfair because it identified her children, and because it was broadcast two days before the anniversary of Mr Dixon’s death. She said that her children had been traumatised by his death and “the unnecessary exposure due to the airing of this programme has magnified [their] distress”.

[40]   As outlined above, we do not consider that the children were identifiable in the programme, or that the programme breached their privacy. We therefore find that the children were not treated unfairly in this respect.

[41]   We acknowledge that the broadcast of programmes such as these causes pain and distress for Ms Ross and her children, and that ongoing publicity must be difficult. However, as discussed above, Mr Dixon’s crimes will most likely always be notorious and of public interest in New Zealand, and Ms Ross’ relationship with him connects her to his case. We do not consider that the broadcaster treated Ms Ross or her children unfairly simply by scheduling the programme close to the anniversary of Mr Dixon’s death. Further, we consider that the broadcaster took steps, for example by blurring the photos of Ms Ross and her children, to minimise the effects on them and to demonstrate an appropriate level of sensitivity.

[42]   Accordingly, we decline to uphold the fairness complaint.

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

Signed for and on behalf of the Authority

Peter Radich
Chair
5 August 2010

Appendix

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

1.           Wendy Ross’ formal complaint – 16 February 2010

2.          TVNZ’s response to the complaint – 31 March 2010

3.          Ms Ross’ referral to the Authority – 26 April 2010

4.          TVNZ’s response to the Authority – 23 June 2010

¹Decision No. 2009-095

²Decision No. 2007-067

³Decision No. 2008-089

⁴Decision No. 2008-017