BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1C) of the Broadcasting Act 1989
One News – item reported on verdict in Ewen McDonald murder trial – reporter commented, “You could well be thinking, if he’s not guilty, why hasn’t he walked out these doors behind me and spoken to media? The reason for that of course is that he’s admitted causing vandalism, graffiti and arson…” – allegedly in breach of law and order, and fairness standards

Findings
Standard 6 (fairness) – item was a legitimate news story with a high level of public interest – as the accused in a high profile murder case Mr McDonald could expect to be the subject of media scrutiny – item was not unfair to Mr McDonald – not upheld

Standard 2 (law and order) – reporter’s question did not encourage viewers to break the law or otherwise promote or condone criminal activity – not upheld

This headnote does not form part of the decision.

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Introduction

[1]   A One News item broadcast on 3 July 2012 reported on the verdict of not guilty reached in the murder trial of Ewen McDonald who was accused of killing his brother-in-law Scott Guy. At the end of the item, the presenter asked the reporter, “viewers may well be wondering, where is Ewen McDonald now, what happens to him?” The reporter responded:

Yeah, that’s right. You could well be thinking, if he’s not guilty, why hasn’t he walked out these doors behind me and spoken to media? The reason for that of course is that he’s admitted causing vandalism, graffiti and arson to [Scott Guy’s] property, and he’ll next appear in the Palmerston North District Court on the 31st of July to set a date for him to be sentenced on those charges.

[2]  Kelly Ryan made a formal complaint to Television New Zealand Ltd, the broadcaster, arguing that the reporter’s comments to the effect of, “if Ewen McDonald is innocent, why isn’t he fronting the media”, gave the impression he did not believe the jury’s verdict was correct. Mr Ryan said that Mr McDonald was found innocent by the jury, and it was not the reporter’s role to imply otherwise.

[3]  The issue is whether the item breached Standards 2 (law and order) and 6 (fairness) of the Free-to-Air Television Code of Broadcasting Practice.

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

Was anyone referred to in the broadcast treated unfairly?

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

[6]  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.¹

[7]  Mr Ryan did not identify who he thought was treated unfairly, though we presume he was referring to the accused, Mr McDonald.

[8]  We do not agree with the complainant’s characterisation of the item, or that the reporter gave the impression he did not believe the jury’s verdict. The reporter’s comments questioning why Mr McDonald was not fronting to the media were legitimate. The purpose of his comments was not to challenge the jury’s verdict, but rather to lead into the point that he was not yet being released because he was still awaiting a court hearing on other charges. We consider that reasonable viewers would have understood this. The reporter very clearly made this point immediately after the comment complained about.

[9]  This was a legitimate news story reporting on the verdict reached in a high profile murder case. It carried a high level of public interest. As the accused in a murder case that had received widespread publicity, Mr McDonald could expect to be the subject of media scrutiny. The reporter’s comments in this context were not unfair to him.

[10]  We therefore find that upholding this part of the complaint would unreasonably restrict the right to freedom of expression, and we decline to uphold the complaint under Standard 6.

Did the broadcast encourage viewers to break the law, or otherwise promote, condone or glamorise criminal activity?

[11]  The intent behind the law and order standard is to prevent broadcasts that encourage listeners to break the law, or otherwise promote, glamorise or condone criminal activity.² The standard exists to ensure that broadcasters refrain from broadcasting material which does not respect the laws which sustain our society.³

[12]  As outlined above, the reporter’s comments were not intended to question the verdict in the case, but rather to highlight that Mr McDonald was not yet released because he was still facing other charges.

[13]  This type of comment, in the context of a legitimate news story about a high profile court case, is not in our view the sort of material the law and order standard is designed to prevent. It could not be said to have encouraged viewers to break the law or otherwise condoned criminal activity.

[14]  We therefore decline to uphold the Standard 2 complaint.

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

Signed for and on behalf of the Authority

Peter Radich
Chair
4 December 2012

Appendix

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

1           Kelly Ryan’s formal complaint – 4 July 2012

2          TVNZ’s response to the complaint – 31 July 2012

3          Mr Ryan’s referral to the Authority – 20 August 2012

4          TVNZ’s response to the Authority – 26 September 2012

¹Commerce Commission and TVWorks Ltd, Decision No. 2008-014

²See, for example, Keane and TVNZ, Decision No. 2010-082.

³See, for example, Hunt and Māori Television, Decision No. 2009-010.