BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint
3 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 complainant and family’s grief

Findings
Privacy – complainant not identified – no uphold

Standard G2 – images not breach of community standards in context – no uphold

Standard G16 – issues better addressed under G17

Standard G17 – intrusion into grief occurred – but valid news item and no unnecessary gratuitous detail

This headnote does not form part of the decision

Summary

[1] The complainant, a New Zealand woman, was the victim of a rape and attempted murder 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 3 News, broadcast by TV3 at 6.00pm on 2 August 2001. The item included a photograph of the victim taken at the time of the offences.

[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 TV3 Network Services 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 her family’s grief.

[3] In its response to the Authority, TV3 denied that the item breached the complainant’s privacy as it said that it did not identify her. In its response to the complainant, TV3 expressed its sympathy to the complainant. Nevertheless, it did not consider community standards had been contravened as the item reported an occasion arising from an event which had occurred 20 years previously, and it did not accept that the inclusion of the photograph was offensive.

[4] Dissatisfied with TV3’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 3 News broadcast by TV3 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. The item included a photograph of the victim taken at the time of the offences.

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, because 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 photo was 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] The complainant argued that the portrayal of a 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 her complaint:

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 … 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 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] TV3 began by stating that the item reported that a man had been arrested because of a DNA evidence breakthrough. The item, it continued, also reported that the victim, the complainant, was now married with two children. It continued:

The [Standards] Committee considers that the New Zealand Woman would not be identifiable from the item and that any facts contained in the item, whether public or private, would not have been highly offensive and objectionable to a reasonable person of ordinary sensibilities.

The photograph shown (which was part of an American news report) was on-screen for less than five seconds – and for the majority of that time the shot was blurred. The Committee does not believe that the public would be able to identify The New Zealand Woman, either as she looked prior to the attack, or as the woman she would be now twenty years later.

[20] It recommended that the Authority decline to uphold the complaint.

The Broadcaster’s Response to the Standards Complaint

[21] TV3 acknowledged that any item about a traumatic event would be potentially distasteful, but had to be seen in the context of the DNA evidence breakthrough after 20 years. It did not consider anything in the item breached standard G2.

[22] As the item had not caused widespread public concern, the requirement for a breach of standard G16 was not present.

[23] As for standard G17, TV3 argued that the complainant’s identity had remained confidential, as was her wish, and the material included had added to the viewer’s understanding of the event.

[24] While declining to uphold the complaint, TV3 apologised to the complainant for the distress the item had caused.

The Complainant’s Referral to the Authority

[25] The complainant said she found TV3’s response inadequate. She pointed out that she did not claim the photo used was out of context, but that it was offensive to show the photo of a brutally raped woman.

[26] While TV3 accepted her right to remain confidential, it had ignored that right by showing her photo, she wrote. The item contained sufficient information to assist viewers’ understanding of the events, she said, without the inclusion of the photo.

[27] She argued that TV3 had neither provided sufficient reason to show the photo, nor undertaken not to use it again.

The Broadcaster’s Response to the Authority

[28] TV3 maintained that showing the photograph did not breach the standards, pointing out that it was an integral part of the news item. It added:

Television is a visual medium, and while words can certainly illustrate events, to a point, they cannot convey the same level of understanding as a vision, in this case the photograph. While regretting the obvious distress the item caused to the New Zealand Woman, TV3 maintains that the photograph did add significantly to viewers’ understanding of the nature of the original event.

The Complainant’s Final Comment

[29] Maintaining that the item breached the standards, the complainant argued that, contrary to TV3’s position that the photograph was acceptable in context, its inclusion was offensive in context. Its inclusion, she said, was highly offensive and objectionable to the person of ordinary sensibilities referred to in Privacy Principle (i). She wrote:

TV3 acknowledged my right to confidentiality but abused that right by screening my photo within this broadcast. Showing photos of the victims of rape, in a bloodied swollen state, without permission, is not the norm of New Zealand broadcasting, nor should it be, regardless of the proportion of the screening which was blurred.

[30] The complainant also contended that the item breached Privacy Principle (ii) as it revealed new facts – that she was now married with children. Furthermore, the photograph shown had not been screened previously in New Zealand. She considered:

I implore you to prohibit TV3 from screening this photo or any other of me again as to do so would be repugnant. I seek an apology and compensation for the breaches of privacy and standards and the subsequent stress and distress this broadcast has had on myself, family and friends.

The Authority’s Determination

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

[32] 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.

[33] The item on 3 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 taken from an American news report and TV3 contended that it added to viewers’ understanding of the event. As the attack on the complainant 20 years previously was extremely vicious, TV3 argued that the news of the arrest was clearly a matter of news interest. TV3 argued that the photograph would not enable viewers to identify the complainant.

[34] Having viewed the item, the Authority accepts TV3’s submission. As the picture was shown briefly and was blurred for some of that time, the Authority finds that the photograph of the complainant shown on 3 News would not have enabled viewers to identify the complainant from this source alone.

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

[36] The Authority considers that the image shown on 3 News allowed viewers to appreciate the extent of the injuries. In the context of a news item about an horrendous event, the Authority does not accept that at the broadcast contravened accepted community standards of taste and decency. Standard G2, it concludes, was not breached.

[37] 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 community, rather than the impact on individuals. The Authority agrees with TV3 that the complainant’s concern about the distress which the item caused to her and her family is more appropriately addressed under standard G17.

[38] 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 required to determine whether that distress was unnecessary.

[39] 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 [33], the newsworthiness of the event is clear.

[40] When determining whether the intrusion was or was not acceptable, the Authority considers first the public interest justification of 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 not gratuitous. The care taken in presenting the item showed concern on the broadcaster’s part not to broadcast the item in a sensational way. Accordingly, the Authority concludes that the item did not breach standards G2, G16 or G17.

[41] 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 TV3 Network Services Ltd – 7 August 2001
2. TV3's Response to the Authority on the Privacy Complaint – 11 September 2001
3. TV3’s Response to the Complainant on the Standards Complaint – 11 September 2001
4. NZW's Request for a copy of the tape of the item – 3 September 2001
5. TV3's Agreement to supply NZW a copy of the tape in view of the specific circumstances –
   18 September 2001
6. NZW's Referral of the Standards Complaint to the Authority – 5 October 2001
7. TV3’s Response to the Authority – 26 November 2001
8. NZW’s Final Comment on both Privacy and Standards Complaint – 17 December 2001
9. The Authority’s Letters to the Complainant on Matters of Process – 3 and 11 December 2001
10. NZW’s Final Comment on Procedural Matters – 17 December 2001