BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Findings
Standard 6 (fairness) – item did not create an unfairly negative impression of the school and staff members – school was provided with fair and reasonable opportunity to comment and the Principal adequately presented the school’s position – item did not create an unfair impression about the timing or duration of the incident – reference to letter was not unfair – footage of police was due to an oversight – school and staff members treated fairly and overall school presented positively – not upheld

Standard 5 (accuracy) – item was accurate in all material respects and would not have significantly misled viewers – not upheld

Standard 3 (privacy) – student and addressee on letter not identifiable – not upheld

This headnote does not form part of the decision.

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Introduction

[1]  An item on 3 News reported on a bullying incident at Ruawai College, told from the perspective of the victim’s mother, and contained cell phone footage of the incident. The item was broadcast on 26 October 2013 on TV3.

[2]  Ruawai College’s Board of Trustees (the Board) made a formal complaint to TVWorks Ltd, the broadcaster, alleging that the item created an unfairly negative impression of the school and staff members, despite the incident having been dealt with through the appropriate legal processes. The Board argued that the item was misleading and in bad taste, and that it breached the privacy standard.

[3]  We consider that standards relating to privacy, accuracy and fairness are most relevant to the complaint and we have limited our determination accordingly. The complainant’s concerns under the good taste and decency standard are addressed as matters of fairness. The good taste and decency standard is primarily concerned with sexual material, nudity, violence and coarse language, and this item did not contain anything of that nature.

[4]  The issue therefore is whether the broadcast breached standards relating to privacy (Standard 3), accuracy (Standard 5), and fairness (Standard 6) as outlined in the Free-to-Air Television Code of Broadcasting Practice.

[5]  The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix.

Nature of the item and freedom of expression

[6]  The 3 News item reported on a serious bullying incident at Ruawai College in which a student was assaulted in the boys’ toilets while bystanders filmed the assault and then posted the footage on social networking sites. The report was told from the perspective of the victim’s mother, and was introduced as follows:

A Northland mother is disgusted that her 14-year-old son was marched into a school toilet and beaten up by his classmate while other waiting students filmed it on their cell phones. The fight at Ruawai College near Dargaville was then put on Facebook and You Tube. What frustrated the victim’s mother most was that the school didn’t tell her of the assault until a couple of days later.

[7]  The item carried a high level of public interest and was valuable in terms of freedom of expression. It exposed anti-social and harmful conduct, and raised public awareness of bullying in schools.

[8]  This value must be balanced against the potential harm that is likely to result from allowing the unfettered dissemination of the broadcast.¹ We may only limit the right to freedom of expression to an extent that is reasonable, and with proper justification. Here, the alleged harm, in terms of the underlying objectives of the relevant broadcasting standards, was said to derive from an unfairly negative and misleading impression of the school and staff members, in terms of the way the bullying incident had been handled. In addition, the complainant argued that the item breached the privacy of a student shown in cell phone footage that was broadcast, and of an addressee shown on a letter that was referred to.

Was the item unfair to Ruawai College and staff members?

[9]  The fairness standard (Standard 6) states that broadcasters should deal fairly with any person or organisation taking part or referred to in a programme.

[10]  One of the purposes of the fairness standard is to protect individuals and organisations from broadcasts which provide an unfairly negative representation of their character or conduct. Programme participants and people referred to in broadcasts have the right to expect that broadcasters will deal with them justly and fairly, so that unwarranted harm is not caused to their reputation and dignity.²

[11]  The overarching complaint is that the item created an unfair impression about the way the school handled the bullying incident. In our view, the impression created about the school was not overly negative. The focus of the story was the victim’s mother and her frustration at the bullying. It was as much about her reaction to the nature of the incident and the subsequent posts on social networking sites, as about her frustration at the school for not telling her about the incident until a couple of days after it happened. The delay in informing the victim’s mother was the basis for the criticism levelled at the school, and there was no suggestion in the item that it otherwise took inadequate action. The reporter stated:

[The victim’s mother] said her son did tell a teacher about the fight. He was interviewed by another teacher the next day. But he didn’t tell his mum and the school didn’t inform her until a day after that. She complained to the school and the Board of Trustees. The school says it followed correct procedure and contacted the police.

[12]  After noting that two further assaults occurred at the school on the same day, the reporter said, “Since then, one student has been expelled, one excluded, and one suspended.”

[13]  It was clear from the reporter’s comments that, for the most part, the school had acted appropriately, that the bullying and fighting had been taken seriously, and that the students involved had been properly reprimanded.

[14]  In addition, the school was provided with a fair and reasonable opportunity to comment, through its Principal, who explained the school’s position on bullying in general, and in relation to this particular incident. There were many positive things about the way the school presented itself, and we think the Principal came across well, demonstrating professionalism and responsiveness to the issue. The Principal and reporter had the following exchange:

Principal:     They are actions of evil intent, and in civilised institutions such as ours, that is
                   totally unacceptable.

Reporter:     Is bullying an issue, is it an issue at this school?

Principal:     The broader sense of the term bullying occurs in every school.

Reporter:     What [measures] have you put in place since that afternoon, to ensure it
                   doesn’t happen again?

Principal:     We are addressing the needs of every single student in our school.

[15]  For these reasons, we think that upholding the fairness complaint would be an unjustifiable limit on the right to freedom of expression. As already noted, this item carried high public interest as it related to a matter of legitimate public concern and exposed anti-social and harmful conduct in our community. The school was provided with a fair and reasonable opportunity to comment, and the Principal adequately put forward the school’s position, mitigating any unfair impression that may have otherwise been created. Overall, we find that the school and staff members were treated fairly and we decline to uphold this part of the complaint.

Other fairness complaints

[16]  Having determined that overall the item was not unfair, we now briefly address the remaining specific aspects of the Board’s fairness complaint. The Board argued that:

• The item suggested the incident was recent, when in fact it took place seven weeks before the broadcast.
• The repetition of cell phone footage gave a distorted impression that the assault lasted for much longer than it did.
• The item obfuscated the origin and purpose of a letter written by the Board to a member of the public, suggesting it was written to the “victim’s family”, and also misrepresenting the person who signed the letter as the “Acting Principal”, when she signed it as “Acting Board Secretary”.
• The item showed footage of police out of context, suggesting they were at the school in relation to the bullying incident, when they were not.

[17]  We are satisfied that the item did not unfairly suggest the incident was current. No comment was made in the item about the date of the assault, and the fact it took place seven weeks earlier did not detract from the public interest in the story. The item did not mislead viewers about the duration of the assault, as it was obvious the footage was being repeated.

[18]  With regard to the letter, the reporter said it was written by the Board to the “[victim’s] family”, and an extract was shown onscreen as the reporter read it aloud in a voiceover, saying, “Sadly, violence is a part of the society we all live in… it is not altogether unexpected when incidents of this nature occur.” The reporter commented that the victim’s mother “wasn’t impressed”. The text onscreen showed the name of the signer alongside the title “Acting Principal”. In our view, the fact the letter was written to a member of the public, not the victim’s family, was not material in context, and would not have influenced viewers’ impression of the school, in a negative way. The victim’s mother was reacting to the sentiment expressed in the letter, regardless of whether it was expressed directly to her. Likewise, the label “Acting Principal”, instead of “Acting Board Secretary”, was not material. The distinction sought by the complainant in this regard was an internal one, and would not have changed the impression created for the average viewer.

[19]  During the reporter’s interview with the Principal, brief shots of police and police dogs were visible in the background, just inside the school grounds. The footage accompanied the reporter’s opening statement that police had been called in relation to the incident. The Board maintained that the footage related to a random drug sweep at the school, which occurred on a different day to the bullying incident, and that the reporter had been made aware of this. TVWorks said the item had initially explained the reason for the police presence, but this line was inadvertently edited out by producers. It said that while it regretted the removal of the reporter’s dialogue, it did not consider the footage created an unfair impression of the school beyond what was reported, and it noted that police “were advised of the incident”.

[20]  While the footage of police and police dogs may have suggested the police were present at the school in relation to the bullying incident, as we have already said, we are satisfied that overall the item did not portray the school or the incident unfairly. The footage accompanied the reporter’s comment, “The school says it followed correct procedure and contacted the police”, indicating the school had acted appropriately. The verbal reference to police indicated the footage was essentially visual wallpaper. We are satisfied that the inclusion of the footage, without any explanation, was due to an oversight on the part of the production team, and was not intended to exaggerate the nature and extent of the incident or the police’s involvement. Nevertheless, we would advise broadcasters to take care when editing programme material to ensure background footage is not shown out of context.

[21]  For these reasons, we decline to uphold the remaining aspects of the fairness complaint.

Was the item inaccurate or misleading?

[22]  The accuracy standard (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. The objective of this standard is to protect audiences from receiving misinformation and thereby being misled.³

[23]  The Board reiterated its arguments under fairness, saying the item was inaccurate and misleading because:

• it suggested the assault was more recent than it actually was;
• the repeated footage exaggerated the duration of the assault; and
• the item used police footage out of context.

[24]  For the reasons expressed above under fairness, we are satisfied that these aspects of the item were not materially inaccurate and would not have misled viewers in any significant respect.

[25]  The Board also argued that the reporter’s comment, “The fight was put on Facebook, then You Tube. The victim’s distraught mum had both pulled down”, incorrectly suggested the mother was left to defend her son from further publicity while the school did nothing to support her. It said the Acting Principal was responsible for having the Facebook footage taken down, and was “instrumental” in having it removed from You Tube.

[26]  TVWorks argued that the assertion the victim’s mother had the footage removed from social networking sites was not material, but was a “minor detail” that did not necessarily imply the school had not acted or played a part in the removal. We agree.

[27]  Accordingly, we decline to uphold the accuracy complaint.

Did the item breach any individual’s privacy?

[28]  Standard 3 states that broadcasters should maintain standards consistent with the privacy of the individual. The privacy standard exists to protect individuals from undesired access to, and disclosure of, information about themselves and their affairs, in order to maintain their dignity, choice, mental wellbeing and reputation, and their ability to develop relationships, opinions and creativity away from the glare of publicity.

[29]  The complainant argued that TVWorks failed to protect the privacy of a student visible in cell phone footage that was broadcast, and of an addressee shown on the letter referred to (see paragraphs [15] and [17]).

[30]  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. The test is whether the person is “identifiable beyond family and close friends who would reasonably be expected to know about the matter dealt with in the broadcast”.⁴

[31]  We are satisfied that neither the student, nor the addressee on the letter, was identifiable for the purposes of the privacy standard.

[32]  The student was not named and his face was obscured by the device he used to film the assault from another angle. We disagree with the Board that the length of his hair and his school jersey were sufficient to identify him beyond those who already knew about the matter disclosed in the footage, especially considering it had been posted on social media networks and You Tube prior to the 3 News broadcast.

[33]  The addressee’s name was not discernible on the letter which was shown only briefly, from a distance. The reporter said the letter was written to the victim’s family, and the real addressee, an unrelated member of the public, was not mentioned in the broadcast.

[34]  Accordingly, we decline to uphold the privacy complaint.

Conclusion

[35]  There will be few schools where bullying and occasional fighting amongst pupils are unknown. Schools are judged by how they endeavour to prevent these incidents and how they respond when they occur. We thought that the response of the school as expressed by the Principal was creditable and entirely appropriate. Taking an objective and overall view of the item we did not see any reputational harm done to the school.

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

Signed for and on behalf of the Authority

Peter Radich
Chair
7 May 2013

Appendix

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

1           Ruawai College Board of Trustees’ formal complaint – 9 November 2012

2          TVWorks’ response to the complaint – 11 December 2012

3          The Board’s referral to the Authority – 29 and 30 January 2013

4          TVWorks’ response to the referral – 8 March 2013

¹See sections 5 and 14 of the New Zealand Bill of Rights Act 1990.

²Commerce Commission and TVWorks Ltd, Decision No. 2008-014

³Bush and Television New Zealand Ltd, Decision No. 2010-036

⁴See, for example, Moore and TVWorks Ltd, Decision No. 2009-036.