COMPLAINT AGAINST THE DOMINION POST

Case Number: 1059

Council Meeting: AUGUST 2006

Verdict: Upheld in Part with Dissent

Publication: The Dominion Post

Ruling Categories: Privacy
Comment and Fact
Discrimination
Accuracy

Introduction
A complaint against The Dominion Post by a relation of a person convicted in a serious drug case been part-upheld by a majority of the members of the Press Council.
Background
A news feature in a Saturday edition of The Dominion Post covered aspects of the life of a person who had pleaded guilty in the Wellington High Court to serious drug charges.
The article referred to family members. It is these references which were the subject of the complaint. They identified relatives by name and gave other identifying details, for example, relating to occupation and business.
The Complaint
The complainant alleged that the newspaper had breached several of the Council’s principles. In the letter of complaint to the editor of The Dominion Post, the complainant referred to the principles of Accuracy, Comment and Fact, Discrimination and Privacy. In the formal complaint to the Council, the objector particularly addressed the Privacy principle.
There was also a reference in the complaint to the Council of the reporter breaching an undertaking he gave to the offender, namely that the article would not be published until after the offender had been sentenced. There has been no complaint from the offender in respect of this alleged undertaking and the Council is unable to consider an allegation on behalf of a third person without the support of that third person.
The particular portion of the Council’s Privacy principle which the complainant alleged had been breached reads:
“Publications should exercise care and discretion before identifying the relatives of persons convicted or accused of crime where the reference to them is not directly relevant to the matter reported.”
The complaint was that the reference to the complainant, place of work, previous work activities, and a medical condition breached the principle and was in no way relevant to the story. Further, it was said that the mention of another family member was also irrelevant. It was further contended that The Dominion Post did not exercise care and discretion by identifying relatives of persons convicted or accused of crimes and that the reference to family members was not directly relevant to the matter reported.
The Newspaper’s Position
The Dominion Post referred to the contents of a letter which it had sent to the complainant in reply to the original letter of complaint to the editor. In essence, the newspaper’s position was that the offender had spoken at length to its reporter about his family and the change he had brought on them. The family background was therefore relevant. The basis of the article was an interview with the offender, freely given by him, about the effects of his drug importing/drug taking and the impact on friends and family around him. It was also stated that it was relevant to include in the story the prominent position which a family member had taken on a matter of public interest (unrelated to drug offending) and that much of the information in the article was on a family website or was available from normal library sources. In respect of the complaint about the medical condition it was stated that this was mentioned by the offender. The reference to the company for which the offender worked, linked to the complainant, was included to give readers an insight into the offender’s working life. In respect of the complaint about one family member, it was stated that they were pointed out to the reporter by the police at a court appearance. (The complainant’s position is that this relative was not in court at any time.)
The Dominion Post’s response to the Council clarified certain matters and in particular repeated that the information featured in the article was in the public domain, available on the complainant’s family website and some of the information was readily provided by the offender who spoke at length about it during a pre-arranged interview. The editor confirmed the newspaper’s position that the information was accurate and there was no discrimination against the complainant by referring to a medical condition.
The Majority View
This is a case on which the views of the Council differ. The majority, however, uphold the complaint on the grounds that the newspaper breached the complainant’s privacy. It does not uphold the complaint on other grounds. The information upon which Accuracy and Discrimination are raised would not have been in the article if it had not been for a breach of the privacy provision. The majority does not consider that the Comment and Fact principle has been breached. On the matter of the presence of a family member in court we note that the editor has accepted a mistake was made in relying upon the identification of a police officer. The newspaper has corrected its library files to reflect the position
While it is accepted that much of the information used was in the public domain, some was on the complainant’s website, and much was provided by the offender, these points are not, in the view of the majority, a sufficient answer to a breach of the Privacy principle. The breach of privacy arises through linking the complainant to the offender. Some readers, including those who knew the complainant, may not have made the link with the offender if it had not been for the article. The majority accepts that this linking may well have had led to the significant stress and trauma of which the complainant complained to the newspaper.
The Privacy principle of the Council reads:
“Everyone is entitled to privacy of person, space and personal information, and these rights should be respected by publications. Nevertheless the right of privacy should not interfere with publication of matters of public record, or obvious significant public interest.
Publications should exercise care and discretion before identifying relatives of persons convicted or accused of crime where the reference to them is not directly relevant to the matter reported.
Those suffering from trauma or grief call for special consideration, and when approached, or enquiries are being undertaken, careful attention is to be given to their sensibilities.”
The complainant was on the face of it entitled to the privacy of person, space and personal information. In this case, in the view of the majority, the first paragraph of the Principle should have been tested against the issue of whether or not there was a direct relationship between what was on the public record or of obvious significant public interest about the family and matters relating to the offending. The family concerned had not sought the limelight or public office. There was no linkage between them and the offending other than the family connection with the offender which, in the view of the majority, could have been handled without breach of privacy.
The Principle requires care and discretion to be exercised before identifying relatives of persons convicted or accused of crime if that identification is not directly relevant to the matter reported. One of the issues covered in the article was the effect on the offender’s family. However, in the majority’s view it is a breach of the Privacy principle to bring in specific details of the family circumstances and positions in an article which refers to the effects on family members. That aspect could have been covered by merely referring to the effects as such. The fact the complainant had been involved in a controversial public matter was not in the majority’s view relevant to the effect on the complainant. Details including the identification of the family members were not necessary in the article. The references to them in this case were an unnecessary invasion of their privacy. Thus the majority upholds the complaint on the grounds that it was a breach of the complainant’s privacy.
This is the first time since the adoption of the Statement of Principles that the Council has considered the issue of identification of a relative of an offender. Its Privacy principle is not as stringent as the privacy policies of either the Australian Press Council or the Press Complaints Commission of the United Kingdom. The former says publications should not identify relatives or friends of a convicted person “unless reference to them is necessary for the full, fair and accurate reporting of the crime or subsequent legal proceedings.”
The PCC code includes “Relatives or friends of persons convicted or accused of crime should not generally be identified without their consent, unless they are genuinely relevant to the story.”
In the view of the majority unless the matter is one of public concern which requires the identification of the relative, they should not generally be identified.

The Dissent
A minority does not uphold the complaint for the reasons set out below.
The Statement of Principle relating to privacy, as with all of the principles, should be read against the overriding principal objects of the Press Council. They are complaint resolution, to promote freedom of speech and freedom of the press in New Zealand and to maintain the New Zealand press in accordance with highest professional standards.
These goals are further elaborated in the Preamble to the Statement of Principles where the Council acknowledges that individuals have rights and these must be balanced against competing interests such as the public’s right to know. The preamble then states, “In complaint resolution by the Council freedom of expression and public interest will play dominant roles.”
The article which is the subject of the complaint must be seen in the context of how the newspaper covered the whole story of the drug offender. There were straight crime reports from the court with some background to the crime, the article complained about which was presented with the strap “News Feature” at the top of the page, an article when the sentence was imposed and a story of police reaction. The Dominion Post story which is the subject of complaint represented no more than normal coverage of such high-profile cases.
There was no reference to the family in the crime reports, but the News Feature, as the description indicates, was a backgrounder and typical of the contextual stories about famous and notorious people. In these articles, everything is relevant. It is knowledge which informs our understanding of the people and their actions. For the famous, mention of schooling, parents, their background, siblings and many personal details give an insight into the subject. Readers would expect a background piece to cover all this territory; a background article that failed to detail much of this information would seem inadequate, at best. For the criminal and less savoury, the function of the revealing background piece is no less important and logically should be no less comprehensive. Otherwise there would be an undesirable, strongly inhibiting effect on the press of not being able to mention real names and details that fill out a true background story.
In this case, the offender himself gave much of the information in a voluntary interview with the newspaper. Far from reflecting badly on the family, the connections made with the complainant, called ‘prominent’ by The Dominion Post, led the reader to ponder even more on the fall from grace of the offender and his divergence from his family. The fact certain details were visible on a family website for anyone to access, not simply emailed, gave the newspaper legitimate support for its claim that what appeared in the newspaper was already part of the public record. What is published on a website is no longer private. In an Internet age, with comprehensive search engines, such knowledge has been set free.
When tragic and unhappy circumstances afflict a family, the family members naturally want to contain and possibly hide their hurt. They value what they perceive as private. But the press has an equal and opposite duty to report the context of such events for the public record and in the public interest, whether the circumstances relate to criminal offending, calamities, fatal accidents or the heartbreak of suicide. In a high-profile drug case, for a society afflicted by the scourge of illegal drug use, the detailed origins of an offender and his effect on his victims and his family are lessons for the public. Such offenders do not exist in isolation and the most natural questions are “Who is he and what is his background?” In this context, anonymity would be untenable and the linking of the complainant and the criminal offender was not a breach of privacy.
The line of privacy moves across these events, but for society as a whole the press is there to reveal not conceal, and freedom of expression is jealously guarded because of this. The Press Council has given varied decisions in the past on privacy complaints. In Case 946, the Council did not uphold a complaint about privacy being breached for the complainant because the story was essentially about the life experience of another person. There, the Council “did not regard the references to [the complainant] as unduly intrusive. It decided that, given the totality of the article and that the references to [the complainant] were brief and not egregious, it would not uphold the complaint.” In the minority’s view the same can be said in this case. The Dominion Post in this case ethically and legitimately obtained information through an interview and a publicly accessible website. Because freedom of expression plays a dominant role in complaint resolution, there is a strong case for the Council to support the way The Dominion Post used that very freedom of expression which is the lifeblood of the newspaper’s work. The minority does not uphold the complaint.

Decision
The complaint is upheld on the basis of a majority decision of the Council by six to five.

Press Council members upholding the complaint were: Barry Paterson, Ruth Buddicom John Gardner, Keith Lees, Denis McLean and Lynn Scott.

Press Council members not upholding the complaint were: Aroha Beck, Penny Harding, Clive Lind, Alan Samson and Terry Snow.