BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary  

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

The Authority did not uphold a complaint a report on 1 News showing footage of a homicide at a Raumanga service station breached the offensive and disturbing content and promotion of illegal or antisocial behaviour standards. The complainant considered it was inappropriate to show footage of ‘a murder being committed,’ and that it promoted antisocial behaviour. The Authority found the footage was justified in the context, noting there was no unreasonable or unnecessary degree of graphic detail, news programmes by their nature often feature challenging material, and the introduction to the item (which signposted the ‘confronting video clip’ and included a warning) adequately informed viewers of the nature of the footage, enabling them to choose not to watch. It also noted the public interest in showing the footage given Police’s request for assistance in the matter. The Authority further found the item did not encourage or promote illegal or antisocial behaviour.

Not Upheld: Offensive and Disturbing Content, Promotion of Illegal or Antisocial Behaviour

The broadcast

[1]  An item on 1 News, broadcast on 17 April 2023, reported on the death of a man at a service station in Whangārei. The item was introduced as follows:

We begin tonight with a confronting video clip sent to 1 News this afternoon showing footage around the time a 25 year old man was killed outside a Gull service station in Raumanga near Whangārei on Saturday night. And a warning, the images are distressing. The incident was one of two violent stabbings over the weekend. For more on this, we're joined now by Simon Mercep.

[2]  Mercep introduced the video clip as showing ‘the forecourt of the petrol station’. The clip then played, with Mercep narrating:

Now, behind the dark car, two men appear to be attacking someone on the ground and that person is then thrown to one side. We've chosen to freeze the next part of the video as one of the attackers is hit by a car and moments later the attackers run off.

[3]  The footage is filmed from some distance and initially shows the men behind a parked car, with one apparently striking the victim near the bonnet of the car. The men then move to the side of the car, following the victim, who is blurred throughout (but appears to be on the ground). One attacker begins to walk away, and the footage freezes as a car drives towards him. Over the top of the footage is a banner which reads ‘Raumaunga Homicide: Police urging public for assistance with investigation.'

[4]  Mercep noted:

Now, Police say they haven’t made an arrest but they are making progress. They confirm a 25 year old man died as a result of injuries in this incident. … They don’t believe the incident is gang related. They do want anyone with video footage to come forward.

[5]  The reporter then discussed another incident of a stabbing in Auckland. There was no video clip of the incident, but footage of the crime scene was shown.

The complaint

[6]  Dr Hamish Ross complained the broadcast breached the offensive and disturbing content standard (and additional standards on referral, addressed below) of the Code of Broadcasting Standards in New Zealand as:

• Showing footage of ‘a murder being committed’ was unnecessary, disrespectful and promoted antisocial or ‘like’ behaviour.
• The timing of the broadcast (early in the evening) was inappropriate, particularly as younger viewers would likely watch the footage.
• The broadcast showed a lack of sensitivity to the family of the victim.
• There was no suggestion it was broadcast ‘to assist the Police in their enquiries.’

The broadcaster’s response

[7]  TVNZ did not consider the broadcast seriously violated community norms of taste and decency or would have disproportionately offended or disturbed the audience for the following reasons:

• ‘1 News is aimed at an adult audience…’ Adult supervision is expected for any children that happen to be watching ‘as these programmes are likely to contain material that is inappropriate for children.’
• ‘News and current affairs 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.’
• ‘The only people shown [in the footage complained of] are the attackers. The 25-year-old man is completely covered with blurring. It is noted that one of the attackers was hit by a car, but the footage is stopped before this is shown. Viewers are advised that Police are urging public for assistance with investigation, and that they are asking for anyone with footage of the incident to come forward. Therefore, the screening of the footage, which shows the alleged attackers and gives detail of a possible injury which one of them might have; and the discussion in general, is in the public interest.’
• ‘The screening of this footage is preceded by a warning which outlines that the report contains distressing images and the introduction clearly outlines the topic being discussed so that viewers could make an informed decision about whether to view this material or not.’
• The segment was consistent with the kind of topics which often feature on the programme, and the tone was typical of the approach which would be expected by viewers.’

Jurisdiction – additional standards

[8]  On referring their complaint to the Authority, the complainant raised the additional standards of children’s interests,¹ promotion of illegal or antisocial behaviour,² and privacy³ as being breached.

[9]  TVNZ objected to the Authority considering any of these standards on the basis no aspect of the children’s interests and privacy standards was raised in the original complaint. Concerning the promotion of illegal or antisocial behaviour standard, TVNZ considered its initial response addressed the concerns raised under this standard in its decision on the offensive and disturbing content standard, ‘including the public interest in identifying the offenders, as police are urging public for assistance with the investigation’, so this Authority was not required to consider this standard.

[10]  In response to TVNZ’s objection, the complainant considered reliance on such ‘legalistic technical defences’ was ‘absurd and contrary to the spirit and intent of the standards’.

[11]  The Authority can consider standards not raised in the original complaint where it can be reasonably implied into the wording of the initial complaint, and where it is reasonably necessary in order to properly consider the complaint.⁴

[12]  In this instance, the original complaint referred to the broadcast being ‘inappropriate, disrespectful and possibly encouraging like behaviour.’ As the encouragement of illegal / antisocial behaviour is expressly referred to, we consider the promotion of illegal or antisocial behaviour standard can be reasonably implied into the wording of the initial complaint. 

[13]  We also consider it reasonably necessary to imply the standard in order to properly consider the complaint. While we acknowledge context is crucial in the assessment of both the offensive and disturbing content⁵ and promotion of illegal or antisocial behaviour standards,⁶ the latter standard has a different focus, being whether broadcast are likely to ‘promote illegal or serious antisocial behaviour’. Given the different lens, we consider it appropriate to imply the standard and address the particular concerns raised under this standard.

[14]  However, we do not consider the children’s interests or privacy standards can reasonably be implied into the wording of the initial complaint, which did not raise issues specifically relating to children’s exposure to the broadcast or breach of privacy. On this basis, we do not consider a proper consideration of the complaint requires the implication of these standards.

The Standards

[15]  The purpose of the offensive and disturbing content standard⁷ is to protect audiences from viewing broadcasts likely to cause widespread disproportionate offence or distress or undermine widely shared community standards.⁸ The standard takes into account the context of the programme, and the wider context of the broadcast, as well as information given by the broadcaster to enable the audience to exercise choice and control over their viewing or listening.

[16]  The purpose of the promotion of illegal or antisocial behaviour standard⁹ is to prevent broadcasts that encourage audiences to break the law, or are otherwise likely to promote criminal or serious antisocial activity.¹⁰ Context, and the audience’s ability to exercise choice and control, are crucial in assessing a programme’s likely practical effect.¹¹

Our analysis

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

[18]  As a starting point, we considered the right to freedom of expression. It is our role to weigh up the right to freedom of expression against any harm potentially caused by the broadcast. We may only intervene when the limitation on the right to freedom of expression is demonstrably justified in a free and democratic society.¹²

Context

[19]  The context of the programme and the wider broadcast are important considerations when assessing complaints under both standards. The key contextual factors relevant here include:

• 1 News is an unclassified current affairs programme aimed at an adult audience, with the expectation any children watching will be supervised.¹³
• News items often involve challenging material which reflects the world we live in.¹⁴
• The introduction to the item noted it would be showing a ‘confronting video clip’ of footage around the time a man was killed at a service station that had been sent to 1 News, and included a warning the ‘images are distressing’.
• Police were ‘urging public for assistance’ with the investigation (as noted in the onscreen banner) and the reporter noted they wanted ‘anyone with video footage to come forward.’
• The two perpetrators are seen from a distance apparently attacking the victim.
• The victim was blurred throughout the footage.
• The footage ended prior to the car hitting an attacker.

Offensive and Disturbing Content

[20]  While broadcasters should take reasonable care in minimising potential harm, the standards recognise that news programmes are by their nature distinctive, and often include disturbing and challenging material that is reflective of the world we live in.¹⁵ Broadcasters are not expected to shield audiences from violent or tragic events, which unfortunately do take place.¹⁶

[21]  Where broadcasters take effective steps to inform their audiences of the nature of their programmes, and enable viewers to regulate their own and their children’s viewing behaviour, they are less likely to breach the standard.¹⁷

[22]  We acknowledge the complainant’s concern the footage of the incident was confronting. However, the footage was clearly signposted (‘We begin tonight with a confronting video clip…’) and the item contained an express warning (‘And a warning, the images are distressing’). Viewers were therefore adequately informed of the nature of the footage that would be shown, enabling them exercise choice and control over their (and their children’s) exposure to such content.

[23]  We also note the victim was blurred throughout, censoring any direct contact between assailant and victim, and reducing the level of ‘graphic’ detail shown. We also consider the blurring was appropriate to protect the victim, who was in a distressing position.

[24]  In the above context, and considering the public interest in showing the footage given Police’s request for assistance in this matter, we do not consider the broadcast was likely to cause widespread disproportionate offence or distress, or undermine widely shared community standards.

Promotion of Illegal or Antisocial Behaviour

[25]  The complainant’s concern under this standard is that showing the footage of ‘a murder being committed’ may have promoted antisocial or ‘like’ behaviour.

[26]  The standard does not stop broadcasters from depicting criminal behaviour; it is concerned with broadcasts that actively undermine or promote disobedience of the law or legal processes.¹⁸

[27]  We do not consider the broadcast had this likely effect. The item, which was a straightforward news report on two serious incidents of violent crime, did not contain any encouragement to break the law, or promotion of similar behaviour. Nor do we consider showing the footage in itself would have had this effect – the footage was justified in the context (reporting on a recent incident of violent crime which Police were requesting assistance with) and there was no ‘unreasonable or unnecessary degree of graphic detail’, as contemplated by the guidelines (supported by the broadcaster’s actions in blurring the victim).¹⁹

[28]  Accordingly, we do not consider regulatory intervention, and a restriction on the right to freedom of expression, justified in this instance.

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

Tupe Solomon-Tanoa’i
Member
30 August 2023    

Appendix

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

1  Dr Hamish Ross’s formal complaint to TVNZ – 17 April 2023

2  TVNZ’s response to the complaint – 15 May 2023

3  Dr Ross’s referral to the Authority – 16 May 2023

4  TVNZ’s response to referral – 24 July 2023

5  Dr Ross’s final comments – 11 August 2023

6  TVNZ’s final comments – 14 August 2023

¹ Standard 2, Code of Broadcasting Standards in New Zealand
² Standard 3, Code of Broadcasting Standards in New Zealand
³ Standard 7, Code of Broadcasting Standards in New Zealand
⁴ Attorney General of Samoa v TVWorks Ltd [2012] NZHC 131, [2012] NZAR 407 at [62]
⁵ Guideline 1.1
⁶ Guideline 3.1
⁷ Standard 1, Code of Broadcasting Standards in New Zealand
⁸ Commentary, Standard 1, Code of Broadcasting Standards in New Zealand at page 8
⁹ Standard 3, Code of Broadcasting Standards in New Zealand
¹⁰ Commentary, Standard 3, Code of Broadcasting Standards in New Zealand at page 11
¹¹ Guideline 3.1
¹² Introduction, Code of Broadcasting Standards in New Zealand at 4
¹³ Guideline 1.5
¹⁴ Williamson and Television New Zealand Ltd, Decision No. 2022-010 at [11]
¹⁵ See: Guideline 1.5; see also: Commentary, Standard 1, Code of Broadcasting Standards in New Zealand at page 8
¹⁶ Torrey & Mayell and Television New Zealand Ltd, Decision No. 2019-102 at [20]
¹⁷ Guideline 1.3
¹⁸ Commentary, Standard 3, Code of Broadcasting Standards in New Zealand at 11
¹⁹ Guideline 3.1