BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint
One News – complainant victim of rape and attempted murder in the United States – alleged offender arrested after 20 years because of DNA evidence – news item showed photo of complainant at time of offence – breach of privacy – community standards not maintained – item caused unnecessary distress – item involved unnecessary intrusion into grief of the complainant and her family

Findings
Privacy – complainant not identified – no uphold

Standard G2 – images not breach of community standards in context

Standard G16 – issues better addressed under G17

Standard G17 – intrusion into grief took place – but valid news item and item did not include gratuitous detail – no uphold

This headnote does not form part of the decision.

Summary

[1] The complainant, a New Zealand woman, was the victim of a rape and other serious violent offences in the United States. Twenty years after the offences, an alleged offender was arrested because of DNA evidence. A clip from the press conference in the United States announcing the arrest was shown in an item on One News, broadcast on TV One at 6.00pm on 2 August 2001. A police officer at the conference held up a photograph of the victim taken at the time of the offences. The complainant gave an interview with the local paper in the United States.

[2] NZW, the victim, complained to the Broadcasting Standards Authority under s.8(1)(c) of the Broadcasting Act 1989 that the item breached her privacy. She also complained to Television New Zealand Ltd, the broadcaster, that the use of the photo on the item breached community standards of good taste and decency, caused unnecessary distress and was an unnecessary intrusion into the family’s grief.

[3] In its response to the Authority, TVNZ denied that the item breached the complainant’s privacy as it did not identify her. In its response to the complainant, TVNZ expressed sympathy. Nevertheless, it did not consider community standards had been contravened. It pointed out that the complainant had generated interest by giving an interview to a paper in the United States where the offences had taken place, but it did not accept that sufficient detail had been shown to amount to an intrusion into the complainant’s grief.

[4] Dissatisfied with TVNZ’s decision on the standards complaint, the complainant referred it to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

For the reasons below, the Authority declines to uphold the complaints.

Decision

[5] The members of the Authority have viewed a tape of the news item complained about and have read the correspondence which is listed in the Appendix. The Authority determines the complaints without a formal hearing.

The Programme

[6] An item on One News broadcast on TV One on 2 August 2001 reported that, 20 years after the event, a man had been charged in Florida with the rape and attempted murder of a New Zealand woman tourist. The charge had been laid on the basis of new DNA evidence. During the item, a representative of the County Sheriff’s Department was shown holding a photograph of the badly injured victim.

The Complaint

[7] Using the pseudonym The New Zealand Woman, the victim complained to the Authority about the use of "an archive photo showing my face in a very bloodied, swollen state": It was, she added, the first time that she had seen the photo showing the gruesome injuries. Moreover, she said, her family and friends had not seen a photograph of her "in such an injured and comatose state".

[8] The complainant wrote:

I was informed the next morning that reporters from TVNZ and TV3 were trying to contact me for comment. I have not contacted any media in New Zealand to date. I do not wish to be identified by the media or further any New Zealand angle to the story. The ‘news’ is about superb police work in America leading to the arrest of a man in relation to an event in Florida. I do not know whether this photo has been shown at any other time. When this case was last of media interest I was hospitalised in America.

[9] In addition to the complaint that the broadcast breached the requirement in s.4(1)(c) of the Broadcasting Act 1989 for broadcasters to maintain standards consistent with the privacy of the individual, the complainant considered that the news item breached standards G2, G16 and G17 of the Television Code of Broadcasting Practice.

[10] The standards had been breached, she wrote, as the item was insensitive and distressing to her, her family and friends. She noted:

Three friends called me in tears that evening alone. I had not been informed that this story was going on to national news nor had my permission been sought for the use of such an objectionable photo by either broadcaster.

[11] As for the privacy aspect, the complainant considered the photos were highly offensive and objectionable and in breach of Privacy Principles (i) and (ii). Specifically, she noted:

My children watch the news and this is not the sort of ‘facts’ I want them informed on. Furthermore I think it is highly offensive to show the picture of any woman in relation to a case of rape. Even more so, when there has been a savage and vicious assault involving attempted murder and battery.

[12] The complainant also complained that the "New Zealand Herald" had covered the item, despite being advised that she did not want to comment, nor to be identified. She said that she still had facial scarring, and:

People will stare, overtly or covertly. However I consider the rape, attempted murder and battery of 20 years ago to be private knowledge and not for broadcasting alongside pictures of me and I am highly offended and distressed by this.

[13] In discussing the crime which TVNZ said was remembered by the police as the worst in Tallahassee’s history, the complainant argued that the portrayal of the photo of "a swollen bloodied face" was not in the public interest.

[14] The complainant also expressed concern that, as she might be required to give evidence in Tallahassee, there would be further media coverage which could allow her current friends and associates to learn private details about her past. She concluded:

The broadcasters named above have failed to observe good taste and decency or to protect my privacy over the past five days and I find this totally objectionable and highly distressing. Therefore, I do not wish to be identified by the New Zealand media in any way in relation to this case, now or in the future. I request that my picture be removed from the TVNZ web site immediately and seek an apology and compensation of $5,000 from each of the broadcasters involved for the breaches made to date.

The Identity Issue

[15] The complainant retained her anonymity when making her complaint. She later advised the Authority of her name and address and the name of a police officer who worked with Interpol and who would be able to confirm that she was the victim of the crime in Tallahassee. The officer confirmed her identity to the Authority.

The Standards

[16] In her complaint to the Authority, the complainant alleged that the broadcast breached s.4(1)(c) of the Broadcasting Act 1989, which requires broadcasters to maintain standards consistent with the privacy of the individual.

[17] In her complaint to the broadcaster, she complained that the broadcast breached standards G2, G16 and G17 of the Television Code of Broadcasting Practice. Standard G2 requires broadcasters, in the preparation and presentation of programmes:

G2 To take into consideration currently accepted norms of decency and taste in language and behaviour, bearing in mind the context in which any language or behaviour occurs.

[18] Standards G16 and G17 read:

G16 News, current affairs and documentaries should not be presented in such a way as to cause unnecessary panic, alarm or distress.

G17 Unnecessary intrusion in the grief and distress of victims and their families or friends must be avoided. Funeral coverage should reflect sensitivity and understanding for the feelings and privacy of the bereaved.

Broadcasters must avoid causing unwarranted distress by showing library tape of bodies or human remains, which could cause distress to surviving family members. Where possible, family members should be consulted before the material is used. This standard is not intended to prevent the use of material, which adds significantly to public understanding of an issue, which is in the public arena and interest.

The Broadcaster’s Response to the Privacy Complaint

[19] As the privacy complaint was made direct to the Authority under s.8(1)(c) of the Broadcasting Act 1989, TVNZ sent its response to the Authority.

[20] TVNZ argued that there was no breach of privacy as, given the small size and the lack of clarity of the photo used, it had not broadcast any material, which identified the victim.

[21] TVNZ maintained that those who knew of the case and the injuries inflicted would not be informed of any material of which they were not already aware – in other words, no "private facts" were disclosed. It wrote:

We submit that the picture did not reveal any detail of the injuries and was certainly not such as to identify the woman now to anyone who did not know her.

[22] TVNZ considered the fact was still in the public interest in New Zealand, and pointed out that it was not responsible for the coverage in the "New Zealand Herald".

The Broadcaster’s Response to the Standards Complaint

[23] In its response to the complainant, TVNZ began:

In considering your complaint, TVNZ’s Complaints Committee expressed its sympathy for you and recognised that the sudden and perhaps unexpected reminder of your ordeal two decades ago must have created both shock and distress. However, it was the opinion of the committee that you may to an extent have confused the message with the messenger. It seemed to the committee that it was the event – the arrest of the man suspected of assaulting you – rather than TVNZ’s coverage that had led to horrifying memories being revived.

[24] TVNZ then argued that the complainant had not been identified in the item.

[25] In respect of standard G2, TVNZ said that the item "told a legitimate and important news story" and did not accept that the reference to the complainant breached the requirement for good taste and decency. It was not, it added, voyeuristic or exploitative.

[26] As for standard G16, TVNZ again expressed sympathy that the complainant had been distressed. Nevertheless, it added, the complainant had generated interest by speaking to a Florida newspaper, observing:

It was a legitimate story, sympathetically told and arguably – far from causing panic, alarm or distress to viewers in general – would be regarded by most as ‘good’ news in the sense that due to advances in DNA technology an arrest had been made in the case of what was a particularly brutal crime.

[27] Turning to standard G17, TVNZ did not accept that the sufficient detail had been shown to represent an intrusion into the complainant’s grief.

[28] In conclusion, TVNZ’s Complaints Committee noted:

It is not possible to make any promise that further developments in this case will not be reported in New Zealand. TVNZ will continue to protect your identity (as it does in all such cases) but there is a genuine public interest to be served here – both in the sense of seeing justice done on your behalf, and in the advances in DNA testing which the case seems to imply.

The Complainant’s Referral to the Authority

[29] The complainant advised that, contrary to TVNZ’s assertion that there was nothing in the item to identify her, people had identified her from the photo.

[30] She maintained that standard G2 was breached, not by the information in the item, but by the addition of a photo of her "swollen bloodied face" which she found distasteful. She wrote:

TVNZ has not explained to me how it is tasteful or decent to provide the impression (picture) of a person suffering horrifying injuries and reportedly raped in a brutal attack on the 6pm news?

[31] She added that she was not confused about the distinction between the message and messenger, commenting:

It’s one thing to know your wife, mother or friend has had considerable facial injuries from a brutal attack twenty years ago. It’s another thing entirely to be presented with the picture of how she looked on entering hospital in a bloodied swollen state. None of my family were alerted to the possibility of this item being shown. That TVNZ chose to show this picture while reporting to my friends of the arrest of this man has led to considerable distress and is a breach of G16 & G17.

Not only have I had to cope with the raising of this issue and the requirement for me to testify after twenty years but due to the insensitivity of the New Zealand media I’ve also had to provide counselling and support to friends and colleagues confronted with horrific images on the National News. A friend’s husband stated quite clearly to me – "I don’t ever want to see pictures of you looking like that again".

The fact that I spoke to a reporter in Tallahassee about the arrest is not relevant.

The Broadcaster’s Response to the Authority

[32] TVNZ maintained that it would be difficult for anyone who did not know of the complainant’s ordeal 20 years previously to discover anything about or her identity from the picture shown during the item. It noted:

We point out that the picture was held up in public at a news conference at which all branches of the media were present. TVNZ did not use a static shot and we hold to our opinion that a viewer of ordinary sensibilities watching this item would gain nothing more than an impression that the injuries suffered by The New Zealand Woman were massive. The small part of the screen taken up with the image, plus the light reflecting off it prevented any detail being revealed.

The Complainant’s Final Comment

[33] The complainant’s comments dealt first with the privacy complaint and noted that the photo was able to be viewed on TVNZ’s Internet site for five days after the broadcast. She wrote:

There are very few other 40 year old women with facial scars consistent with such a severe beating to the left side of the face. Friends who did not see these broadcasts were alerted to the arrest by:

• A woman who sat at our table at a wedding in February;The sister-in-law of a friend of my husbands who I met at a children’s party last year
• These are not people who I would choose to inform that I was raped and brutally assaulted.

[34] The complainant repeated her opinion that an event, which occurred in the United States 20 years ago, was a private fact in New Zealand now.

[35] As for TVNZ’s contention that she contributed to the information in the media, she wrote:

I spoke with police in Tallahassee at 8 in the morning to be informed of an arrest after 20 years and that a media release would ensue. I was not informed that this media release would involve the display of my photo and would never have consented to such. I was also informed, by the Tallahassee police, of the intense interest shown in the case by the Tallahassee Democrat and agreed to be contacted by a reporter from that newspaper as they had given me considerable assistance 20 years ago. That interview commenced within 10 minutes of my initial contact with Tallahassee police and before I’d even secured my first coffee of the day. It commenced with an agreement not to disclose my identity. True to their word, their report in the Tallahassee local paper did not identify me. These actions appear to have given TVNZ licence to broadcast my photo and I find their lack of ethics and standards abhorrent.

[36] Turning to the standard G2 aspect of the complaint, the complainant argued that TVNZ accepted that the photo identified her to those who knew her but had not addressed the complaint that the details disclosed breached accepted standards of decency and taste. Moreover, she wrote:

My picture was held up at an American news conference (without my consent). The screening of that on One News and display of it on the TVNZ Internet site clearly breaches the norms of decency and good taste as well as privacy.

[37] Explaining that her concern focused on any further publication of the photo and the possible adverse effects on her children, family, friends and her job, she concluded:

I implore the BSA to prohibit the further publication of this photo or any other identifying facts by TVNZ in the future. I seek an apology and compensation for the breaches of privacy and standards and the subsequent stress and distress this arrest has had on myself, family and friends.

[38] In a brief reply, TVNZ denied that an image of the complainant had, at any time, been published on TVNZ’s nzoom.com website. In response, the complainant stated that both and her husband had seen the photo on the website.

The Authority’s Determination

[39] From the outset, the Authority acknowledges the complainant’s distress at having to relive these events.

[40] The Authority’s task is to deal with complaints about material which is broadcast. Its jurisdiction does not necessarily extend to TVNZ’s website.

[41] The Authority has ruled on several occasions that a broadcast does not contravene the requirement to maintain standards consistent with an individual’s privacy if that individual’s identity is not disclosed during the broadcast.

[42] The item on One News showed a photograph of the complainant apparently taken about the time she was admitted to hospital after she had been attacked and raped. The photograph was held up by a representative of the County Sheriff’s Department at a press conference in Tallahassee when the arrest was announced. As the attack on the complainant 20 years previously was extremely vicious, TVNZ argued that the news of the arrest was clearly a matter of news interest.

[43] TVNZ argued to the Authority that, while a viewer watching the item would realise that the injuries suffered were massive:

The small part of the screen taken up with the image, plus the light reflecting off it, prevented any detail being revealed.

[44] Having viewed the item, the Authority accepts TVNZ’s submission. Not only was the light reflecting off the photograph, it was constantly moving and difficult to discern any detail. Accordingly, the Authority finds that the photograph of the complainant shown on One News would not have enabled viewers to identify the complainant from this source alone.

[45] The complainant also alleged that the broadcast breached standards G2, G16 and G17 of the Television Code of Broadcasting Practice.

[46] The Authority considers that the image shown on One News allowed viewers to appreciate the seriousness of the injuries, but in the context of the news about an horrendous event, did not contravene accepted community standards of taste and decency. Standard G2, it concludes, was not breached.

[47] Standard G16 requires broadcasters to avoid items which would cause unnecessary panic, alarm or distress. The Authority does not regard the standard as being relevant as the standard is concerned with the impact of news items on the wider community, rather than on individuals. The Authority considers that the complainant’s concern about the distress which the item caused to her and her family is more appropriately addressed under standard G17.

[48] Turning to standard G17, the Authority acknowledges that the broadcast was undoubtedly a cause of distress to the complainant and her family. The Authority is then required to determine whether that distress was unnecessary.

[49] In dealing with this aspect, the Authority notes that a person was arrested for a violent crime 20 years after the fact. The arrest took place because of advances in DNA technology. To repeat the point made in para [42], the newsworthiness of the event is clear.

[50] When determining whether the intrusion was unnecessary or necessary, the Authority considers, first, the public interest justification for the report, and secondly in this case, the fact that the item did not dwell on the injuries in a gratuitous way. Taking these matters into account, the Authority concludes that the intrusion was neither unnecessary nor gratuitous. The care taken in presenting the item showed concern on the broadcaster’s part to broadcast the item in a way which was not sensational. Accordingly, the Authority concludes that the item did not breach standards G2, G16 or G17.

[51] The Authority observes that to find a breach of the nominated standards would be to interpret the Broadcasting Act 1989 in such a way as to place too great a limit on the broadcaster’s statutory freedom of expression in s.14 of the New Zealand Bill of Rights Act 1990 It prefers to adopt an interpretation of the standards which is consistent with the Bill of Rights.

For the reasons above, the Authority declines to uphold the complaints.

Signed for and on behalf of the Authority

Peter Cartwright
Chair
28 February 2002

Appendix

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

1. NZW's Complaint on Privacy to the Broadcasting Standards Authority and on Standards to Television New Zealand Ltd – 7 August 2001
2. TVNZ's Response to the Authority on the Privacy Complaint – 24 August 2001
3. TVNZ’s Response to the Complainant on the Standards Complaint – 27 August 2001
4. NZW's Request for a copy of the tape of the item – 3 September 2001
5. TVNZ's Agreement to supply NZW a copy of the tape in view of the specific circumstances – 13 September 2001
6. NZW's Referral of the Standards Complaint to the Authority – 19 September 2001
7. TVNZ’s Response to the Authority – 19 October 2001
8. NZW’s Final Comment on both Privacy and Standards Complaint – 7 November 2001
9. TVNZ’s Response to the Final Comment – 15 November 2001
10. The Complainant’s Response on the Website matter – 27 November 2001
11. The Authority’s Letters to the Complainant on Matters of Process –
    3 and 11 December 2001
12. NZW’s Final Comment on Procedural Matters – 17 December 2001