BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
One News – item covering the murder trial of Clayton Weatherston – contained footage of Mr Weatherston in court describing his attack – allegedly in breach of good taste and decency

Findings
Standard 1 (good taste and decency) – viewers would not have expected the level of explicit detail provided – item required a warning – upheld

No Order

This headnote does not form part of the decision.

Broadcast

[1]   An item on One News, broadcast at 6pm on Monday 13 July 2009, covered the day’s events at the trial of Clayton Weatherston, who was accused of murdering Sophie Elliott. The presenters introduced the item by saying:

The university tutor who killed his former student and girlfriend has given his version of what happened in her bedroom that day.

Clayton Weatherston told a jury in Christchurch what made him lose control and stab Sophie Elliott more than 200 times. He also gave more evidence about their relationship. Weatherston’s admitted manslaughter, but is denying murder.

[2]   A reporter then gave a summary of what Mr Weatherston had said in court that day including why he had gone to Ms Elliott’s house and the events which allegedly led him to lose control. The item included footage of Mr Weatherston giving evidence about what happened in his victim’s bedroom.

[3]   At one point Mr Weatherston stated:

The most vivid recall I have next is of standing or kneeling over her with a pair of scissors in my right hand, and um, the scissors had gone through the front of her throat and I can feel a crunching sound, like it’s against her spine.

Complaint

[4]   Shona Thomson made a formal complaint to Television New Zealand Ltd, the broadcaster, alleging that the item breached standards of good taste and decency. She argued that the item should not have included Mr Weatherston’s description of what he had heard and felt when stabbing Ms Elliott.

[5]   The complainant considered that, while it was appropriate for the jury to hear Mr Weatherston’s description, it was inappropriate material for viewers watching One News.

Standards

[6]   TVNZ assessed the complaint under Standard 1 and guidelines 1a and 1b of the Free-to-Air Television Code of Broadcasting Practice. These provide:

Standard 1 Good Taste and Decency

Broadcasters should observe standards of good taste and decency.

Guidelines

1a   Broadcasters will take into account current norms of good taste and decency bearing in mind the context in which any content occurs and the wider context of the broadcast e.g. programme classification, target audience, type of programme and use of warnings etc.

1b   The use of visual and verbal warnings should be considered when content is likely to disturb or offend a significant number of viewers except in the case of news and current affairs, where verbal warnings only will be considered. Warnings should be specific in nature, while avoiding detail which may itself distress or offend viewers.

Broadcaster's Response to the Complainant

[7]   TVNZ stated that One News had an adult target audience and noted that the Authority had previously found that young children were unlikely to watch news programmes unsupervised.

[8]   The broadcaster said that Mr Weatherston’s case had generated massive public interest and had been widely reported by all media throughout the duration of his trial. It contended that it was “not alone in its reporting of the details of Clayton Weatherston’s testimony and defence”.

[9]   TVNZ argued that, when reporting on court proceedings, news and current affairs outlets had an obligation and responsibility to provide a fair and accurate portrayal of what was said in court. Further, it contended that broadcasting the courtroom footage of the trial enabled informed debate on the wider issue of the provocation defence in the New Zealand legal system. It also considered that the footage was important to screen even though the manner in which Mr Weatherston comported himself while giving evidence may have been repugnant to some viewers.

[10]   The broadcaster contended that it was important that New Zealanders understood the offensiveness of Mr Weatherston’s crime and that sanitising or censoring the evidence would have distorted the issue. It stated that the editorial decision to include the footage was not taken lightly, but its senior editorial staff considered that the material was justifiable in the public interest.

[11]   It noted that the facts of the case were widely known and contended that the item’s lengthy introduction prior to showing the footage of Mr Weatherston giving evidence clearly outlined the type of material that was to be included. It argued that the item’s lengthy introduction coupled with the public’s knowledge of the case would have given people who did not want to watch the evidence time to turn it off.

[12]   TVNZ argued that, in the context of a news and current affairs broadcast following a high-profile court case of a man accused of murder, the material contained in the item did not exceed the bounds of good taste and decency. It declined to uphold the complaint.

[13]   However, the broadcaster said that its news department acknowledged that throughout the reporting of Mr Weatherston’s trial, verbal warnings prior to such footage could have been better utilised. It stated that its news staff had learnt from the experience and that more robust processes had now been put into place to ensure warnings were used when appropriate.

Referral to the Authority

[14]   Dissatisfied with TVNZ’s response, Ms Thomson referred her complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989.

Authority's Determination

[15]   The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.

[16]   When the Authority considers an alleged breach of Standard 1, it takes into account the context of the broadcast. On this occasion, the relevant contextual factors include:

• One News was an unclassified news programme

• the item was broadcast at 6pm

• the item was not preceded by a warning

• One News was broadcast during children’s normally accepted viewing times

• young children are unlikely to watch news programmes unsupervised.

[17]   At the outset, the Authority accepts that there was a high level of public interest in Mr Weatherston’s trial and that it had received significant publicity across all media in New Zealand. Further, it accepts that news items are required to be a faithful and accurate record of events.

[18]   However, the Authority considers that viewers would have been unprepared for the level of explicit detail that this item contained. It points out that Mr Weatherston’s testimony was highly unusual given that he had admitted killing Ms Elliott, and was describing in detail the manner in which he had done so. The item’s introduction was insufficient to signpost the grisly and unpleasant details relayed by Mr Weatherston.

[19]   Three members of the Authority (Joanne Morris, Paul France and Tapu Misa) consider that the item could have been broadcast during the early evening news if it had been preceded by a specific verbal warning advising viewers of the explicit content it contained, in accordance with guideline 1b.

[20]   One member of the Authority (Mary Anne Shanahan) would have upheld the complaint even if the item had included a warning. Ms Shanahan is of the view that the details were inappropriate for broadcast during the 6pm news, but could have been included in the late news with a warning.

[21]   However, having unanimously reached the conclusion that the item threatened standards of good taste, the Authority must now decide whether to uphold the complaint as a breach of Standard 1.

[22]   The Authority acknowledges that upholding the Standard 1 complaint would place a limit on the broadcaster’s right to freedom of expression, which is protected by section 14 of the New Zealand Bill of Rights Act 1990. In Lotriet and TVWorks Ltd,¹ the Authority determined that upholding a complaint under Standard 1 would be prescribed by law and a justified limitation on the broadcaster’s right to freedom of expression as required by section 5 of the Bill of Rights Act. In the Authority’s view, the primary objective of Standard 1 is to protect against the broadcast of sexual content, violent material, and language that exceeds current norms of good taste and decency in the context in which it is shown.

[23]   With that in mind, the Authority must consider whether it would be a reasonable and proportionate limit on TVNZ’s freedom of expression to uphold a breach of Standard 1 on this occasion. It finds that upholding a breach of the good taste and decency standard on this occasion would ensure that broadcasters exercise appropriate discretion when items contain explicit or potentially disturbing content. For three members of the Authority (see paragraph [19] above) this would have meant including a warning advising viewers of the explicit content the item contained. In this respect, upholding this complaint clearly promotes the objective of Standard 1, and therefore places a justified and reasonable limit on TVNZ’s freedom of expression. The Authority upholds the complaint that the item breached Standard 1.

For the above reasons the Authority upholds the complaint that the broadcast by Television New Zealand Ltd of an item on One News on 13 July 2009 breached Standard 1 of the Free-to-Air Television Code of Broadcasting Practice.

[24]   Having upheld the complaint, the Authority may make orders under sections 13 and 16 of the Broadcasting Act 1989. It does not intend to do so on this occasion.

[25]   In the Authority’s view, Mr Weatherston’s trial was an unusual event because he had admitted killing Ms Elliott and gave lengthy evidence in his own defence. It understands that choosing which footage to include in reports on the trial would have been a difficult editorial decision. It also accepts that it was important for the public to see Mr Weatherston giving evidence in order to reflect events accurately.

[26]   The Authority finds that the publication of its decision is sufficient in the circumstances and expects that it will provide guidance for TVNZ when reporting on similar issues in the future.

Signed for and on behalf of the Authority

Joanne Morris
Chair
25 November 2009

Appendix

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

1.         Shona Thomson’s formal complaint – 13 July 2009

2.        TVNZ’s response to the formal complaint – 10 August 2009

3.        Ms Thomson’s referral to the Authority – 17 August 2009

4.        TVNZ’s response to the Authority – 9 September 2009

¹Decision No. 2009-023