GEN O'HALLORAN AGAINST NEW ZEALAND HERALD

Case Number: 2166

Council Meeting: DECEMBER 2010

Verdict: Not Upheld

Publication: New Zealand Herald

Ruling Categories: Privacy
Children and Young People
Social Media

Genevieve O’Halloran complained to the Press Council that a photograph of the slain Auckland woman, Carmen Thomas, with her baby son published in the New Zealand Herald on October 11, 2010, breached the Council’s principles on two grounds – privacy and dealing with children and young people.

The complaint is not upheld.

Background
Following a major search after Ms Thomas, who worked as an escort, was reported missing, the New Zealand Herald reported her remains were found set in concrete in plastic containers buried in the Waitakere Ranges near Auckland.
The nature of the disappearance and subsequent discovery resulted in much media coverage particularly after the father of the boy, Brad Callaghan, was charged with her murder.
On October 11, the Herald reported arrangements for Ms Thomas’ funeral and, among other things, mentioned how the son, now five years old, was in the care of relatives.
The Herald published with the story a picture of Ms Thomas cuddling her son which it said had been posted on the social media site, Facebook. The picture bore a caption with the words: “Photo/supplied.”

The Complaint
Ms O’Halloran complained to the Herald that the publication of the photograph was not justified by any significant public interest. The boy’s circumstances meant he was “suffering from grief and trauma” and was deserving of special consideration as set out in the Council’s Principle 2.
Further, as Brad Callaghan had been charged with Ms Thomas’ murder, his son was a relative of a person accused of a crime and according to Principle 2, the Herald had a duty to exercise particular care and discretion when choosing whether to identify him.
Ms O’Halloran said she understood the continuing interest in the case but there was a difference between stories which are “of interest to the public” and those “in the public interest.”
While the photograph was a number of years old, the boy was easily recognisable and was involuntarily in an extremely distressing situation. Publication of the photograph could only heighten that distress and expose him to further public scrutiny.
It was immaterial the picture was taken from a Facebook page as the person responsible for publication online was not capable of authorising publication on the boy’s behalf.
The article did not demonstrate any exceptional public interest to justify over-riding his interests or invading his right to privacy.

The Newspaper’s Initial Response
The deputy editor of the Herald, David Hastings, responded to Ms O’Halloran that the decision to publish the photograph was made after careful consideration, including Press Council principles.
The picture was one of a number of similar photographs but it was one described by Ms Thomas’s aunt as her favourite. It seemed clear the message the family wanted to convey was that Ms Thomas was a loving mother.
The Herald had made a deliberate decision not to photograph or publish any contemporary picture of the son, and did not see how the toddler in the Facebook picture could be recognised as the schoolboy of today.
On balance, the Herald believed it was reasonable to publish the picture, given in its view the boy was not recognisable.
Ms O’Halloran disagreed and complained to the Press Council.

The Newspaper’s Further Response
In his response to the Council, Mr Hastings said there was a great deal of public interest in the case, and the family made up of Carmen Thomas and Brad Callaghan and their child was an intrinsic part of the story.
The photograph had been taken some years before and contained nothing objectionable or out of the ordinary. It had been published on Facebook and had been available to the public for some time.
Mr Hastings quoted the litigation of Hosking v Runting and said the case bore some “striking similarities.” It involved a recent photograph of children taken in a public place and was published as part of a story about a family. By a majority decision, the Court of Appeal had decided in Hosking there was a right to privacy capable of protection under the law but publishing a photograph taken in a public place was not capable of infringing any right to privacy.
A factor that influenced the Court of Appeal was that the parents of the children had participated in publication of images of them.
In this case, images of the boy had been published on Facebook by the family and had therefore been available to the public for some time.
The Herald understood Principle 2 protected privacy interests. “However, modern jurisprudence accepts that these interests have their source in human dignity. It is publications which impact on the integrity of the subject as a human being which infringe the principle.”
Republication of images already published were unlikely to infringe, and it seemed to be accepted in this case that the image published could not be said to affect human dignity in the manner required for there to be a breach.
The Herald believed that republication of an image that was already in the public domain and which was free of any component which was objectionable or disturbing was not contrary to Principles 2 and 3.

Further Debate on the Issues
In her response, Ms O’Halloran said the duty of care under the two principles was more onerous.
Principle 2, dealing with privacy, said: “Everyone is normally 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 significant matters of public record or public interest. Publications should exercise particular care and discretion before identifying relatives of persons convicted or accused of crime where the reference to them is not relevant to the matter reported. Those suffering from trauma or grief call for special consideration.”
Principle 3, dealing with children and young people, said: “In cases involving children and young people editors must demonstrate an exceptional public interest to over-ride the interests of the child or young person.”
She disagreed her complaint bore “striking similarities” to Hosking and said the deputy editor was factually incorrect when he said the Hoskings were unsuccessful partly because they had participated in the publication of images of their children. The couple had declined to allow photographs of their children from their birth.
The Hoskings were unsuccessful because the photographs were taken in a public place, they were people in high profile jobs, they had courted publicity about their personal life, including granting an interview about their fertility treatment, and the photographs depicted the children Christmas shopping with their mother, which the court believed did not disclose any highly offensive facts.
In the boy’s case, the photograph was a personal family photo, not taken in a public place, neither parent had a high-profile job, nobody authorised participated in publication of the photograph on Facebook and the photograph clearly identified the boy as the son of a murdered escort and of a murder accused. Those were private facts, the disclosure of which would be considered highly offensive to an objective, reasonable person.
The photograph was available on a Facebook page set up as a support group and a memorial by family and friends of Ms Thomas. It was not intended for publication in a major newspaper.
The complainant said it was incorrect to say the boy was not identifiable. He was clearly recognisable.
The Herald had not demonstrated that particular care and discretion was exercised, or that any special consideration had been given to the boy as a child suffering from trauma and grief, as required by Principle 2.
Nor had it demonstrated that an exceptional public interest existed to override the interests of the boy, as required by Principle 3.
The deputy editor said Ms O’Halloran was drawing distinctions between the facts of Hosking and publication of photographs of the boy. While the photograph was not taken in a public place, it was published in one, namely Facebook. There was no material factual distinction weighing in favour of restricted republication of the photographs.
Ms O’Halloran had said that neither of the parents had courted publicity. Mr Hastings said that, in fact, Ms Thomas’ family had gone to some lengths to court publicity and to portray her in certain ways, and the photographs of the boy on Facebook were an illustration of that. The family had not only sought publicity for Ms Thomas and her son, they had taken steps to procure it.
Ms O’Halloran had argued that nobody had authorised publication. But they had been voluntarily published on Facebook, and her point that there was a difference between publication on an open website and a claim to limited authority for republication was without merit. Publication on Facebook was publication.
Further, claims that knowledge that the boy’s mother was an escort was not a private fact, it was widely known.
Ms O’Halloran had sought to limit the significance of Hosking by saying the Press Council’s principles relating to privacy were more onerous. But Hosking was an authoritative discussion on community expectations of privacy, and it was not material that Hosking discussed an emerging tort of privacy while Press Council rules are a voluntary code.
Both dealt with legitimate expectations of privacy in the community and retention between them and free speech.

Discussion and Finding
There are several elements to the complaint: whether the boy’s privacy has been breached as a consequence of the Herald’s publication of a photo of him as baby; whether sufficient consideration was given to the Children and Young Persons Principle; whether the Principle relating to identifying relatives of persons accused of crimes was invoked; whether the Herald was right to use a photo from a Facebook page.

On the first two points the Council notes that the photo was several years old. The Council believes that the boy is not identifiable from the photo of the baby/toddler and the Council could see no harm coming from this publication. This is contrasted with Case Nos 2150 – 2157 in which the Press Council has upheld a complaint concerning publication of a current photograph of the same boy.

The photograph had already been widely circulated on Facebook, making any argument about breach of privacy more difficult to sustain. The Herald’s impact on the Auckland market is large, but it should also be remembered that the impact of Facebook on the same market is also likely to be huge, given that, if Facebook members represented a country, they would be the third largest country in the world, and recent events in New Zealand indicate that tens of thousands of Facebook members sign up to such pages in high-profile cases.

The Principle relating to identifying relatives of persons convicted or accused of crimes is not applicable here. Over the course of this story both the police and the family have made public the identities of various family members, including this child. Indeed, the Herald has argued the family courted publicity, which is understandable in a case where a young woman has disappeared and who, without attempts to maintain both public and media pressure, might simply have become another missing person statistic.

Ms O’Halloran does not pursue with any vigour the issue of whether the Herald had permission to publish the photograph from the Facebook page. The Herald itself does not answer that question, although the caption on the web version says the picture was “supplied”

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.

Ms O’Halloran also argues that even the person who published the photograph on Facebook was not capable of authorising it on the boy’s behalf.

This is speculation because the person who took the picture and their relationship to the boy is not known. This is a third-person complaint and who authorised the picture on Facebook, or more importantly who might have objected on the son’s behalf, is not known.

The case of Hosking offers some insight into the still-developing tort of privacy but the Council prefers to make its decisions based on its own principles. However the Press Council’s view is that the publication did not infringe the Hosking 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, Clive Lind, Lynn Scott and Stephen Stewart.

John Roughan took no part in the consideration of this complaint.