APARANGI HEMARA AGAINST HERALD ON SUNDAY

Case Number: 2173

Council Meeting: FEBRUARY

Verdict: Not Upheld

Publication: Herald On Sunday

Ruling Categories: Privacy
Photographs
Social Media

Introduction
The Press Council has not upheld a complaint by Aparangi Hemara against the Herald on Sunday and nzherald.co.nz about a news story concerning the aftermath of a physical attack on Mr Hemara and the publication of a photograph of he and his bride on their wedding day.

The Article and Photograph
On November 28, 2010 the Herald on Sunday and the nzherald.co.nz published an article titled Street thugs shred Api’s rugby hopes, concerning a violent attack in Scotland on a former top Maori rugby player. Aparangi Hemara and his fiancée were set upon and beaten as they caught a bus home following their engagement celebration. The trial and conviction (in Scotland) of Mr Hemara’s attackers was widely reported by the British press and provided the impetus for and content of the Herald on Sunday and nzherald.co.nz news story. The story included direct quotations from Mr Hemara about the impact of the attack as well as unattributed comment that the attack caused the delay of his wedding, the loss of one eye and wrecked his hopes of a professional rugby career.
Accompanying the story, and with the caption “Hemara’s delayed wedding. Photo/Supplied” was a photograph of the couple on their wedding day.

The Complaint
Mr Hemara and his wife were very distressed by the story and particularly distraught at the publication of their wedding photograph. Mr Hemara describes the assault as leading to a year and a half of hell which he and his wife found hard to deal with. The British press coverage caused added pressure and the publication of the Herald on Sunday story caused such an upset he was initially unable to put his feelings into words.
He felt that the circumstances should entitle him and his wife to privacy rather than having to endure the terrible experience of having their situation “splashed” through the papers. Mr Hemara said that the choice of informing his family and friends about what had happened to them had been effectively taken away from him as their story was made ‘public property” by the news story.
The use of the wedding photograph caused particular hurt. “Of all the photos you could take from someone, they took the one that meant the most, the most personal. That day was ours and now that’s been robbed from us.”
Their original wedding day had to be cancelled because of the attack. In the aftermath of the attack, anticipation of their forthcoming wedding got them through ‘each day of hell!”
“We have had so much taken from us, I wish I could express how it felt to see someone had taken our day away as well.”
In addition to the hurt caused by the publication Mr Hemara raised the issue of copyright ownership of the photograph initially stating it was owned by their professional wedding photographer and subsequent stating he and his wife had purchased copyright and were the lawful owners.
The use of the word “Supplied” with photograph was also misleading and amplified their hurt as it implied the couple had given the photograph to the press when they had not even given it to their close family.

The Response
In its response the newspaper acknowledged Mr Hemara’s grievance and explained that the story was “pieced together” from various UK press reports. The editor said his staff made extensive but unsuccessful efforts to find Mr Hemara and only succeeded in finding the Facebook page of Mr Hemara’s mother. The editor stated that the newspaper “contacted her directly”. However, the newspaper did not elaborate on the nature of this “contact” and Mr Hemara later denied that his mother had ever been contacted by the newspaper. This point was not answered by the newspaper.
Initially the newspaper claimed the wedding photograph was sourced from Mr Hemara’s Facebook page. Subsequently, the newspaper claimed to have sourced the photograph via a comment posted by Mr Hemara’s mother on her Facebook page regarding the wedding. “His mother’s Facebook profile, which was open to all users, carried a comment on her son’s wedding. By clicking on that comment, it brought the photo up.”
The newspaper argued that if Mr Hemara, or his mother, did not want any access to the photographs they should have adjusted the available privacy setting options accordingly.
Regarding the issue of copyright; in its initial response the newspaper did acknowledge potential breach of copyright with the use of the photograph and offered to pay $NZ150. This offer was not repeated in their final response nor did Mr Hemara respond to it.

Discussion
The violent attack and its aftermath have caused major trauma to this couple both physically and mentally. The stress of the subsequent court case, notwithstanding the convictions of two of their assailants, was not alleviated by media attention. In fact the opposite was the case with press coverage exacerbating their distress.
It is a sad feature of violent events that victims sometimes feel twice violated; the second time by the media. But this does not mean that the reporting of violence against private citizens should be prohibited. In this situation, because of the victim’s profile as a highly regarded sportsman, there was added media interest in his plight and in the trial of his assailants. While the Press Council sympathises with this couple it does not find there was a breach of Press Council Principles in the newspaper’s decision to report events.
The complainant argues that he was not contacted prior to publication. It is the case that had the newspaper been successful in contacting him, and had he withheld comment, the newspaper would have most likely proceeded to publish the article anyway. The majority of the information was already in the public domain.
His original case that the article contained errors was not elaborated on nor substantiated in his subsequent complaint.

On the subject of the photograph, and its source, the issues are more complex. Mr Hemara argues that he owns the copyright to the photographs. Copyright law protects ownership on the internet, including Facebook, in the same way as it does in print publications. This was acknowledged by the newspaper in the offer of $NZ150 for breach. Copyright issues are legal matters and as such are do not fall within the jurisdiction of the Press Council.

However, Facebook is not a private space but a public sphere and the Press Council has cause, yet again, to remind users that despite the best intents of individuals, it is not easy not always possible to protect privacy or enforce copyright issues.
The Press Council has previously indicated that it expects news organisations considering publishing images garnered from Facebook, to take reasonable steps to obtain permission.
In Case 2166 (Gen O'Halloran Against New Zealand Herald) the Press Council stated:
The internet is a public place. Publication of a photograph on an open page therefore indicates to the news media that there is an implied use for news purposes. Despite that, the Council believes that a newspaper using a picture from Facebook would be wise to make some effort to obtain permission, particularly if it is a picture of a sensitive subject, and to give credit where it is due and to avoid a claim of breach of copyright.

As the newspaper has not breached the Council’s Principles the complaint is not upheld.

Press Council members considering this complaint were Barry Paterson (Chairman), Pip Bruce Ferguson, Kate Coughlan, Chris Darlow, Sandy Gill, Penny Harding, Keith Lees, John Roughan, Lynn Scott and Stephen Stewart.