HAWKE'S BAY DISTRICT HEALTH BOARD AGAINST THE DOMINION POST

Case Number: 2089

Council Meeting: NOVEMBER 2009

Verdict: Not Upheld with Dissent

Publication: The Dominion Post

Ruling Categories: Privacy
Children and Young People

The Press Council has not upheld, by a majority decision, two complaints by the Hawke’s Bay District Health Board against The Dominion Post and Hawke’s Bay Today about publication on 31 August 2009 of a wounded child’s photograph.

Background:
The child had been shot in the arm by a gunman who had already shot dead the child’s father. At the time of publication the gunman had not been apprehended by police.
The child was taken by ambulance to the Hawke’s Bay Regional Hospital and while being guided into the hospital by two ambulance officers a New Zealand Press Association photographer, standing across the road, photographed the group.
The boy’s face was clearly shown in the Hawke’s Bay Today and The Dominion Post editions of 31 August 2009. Other newspapers pixellated the photograph to conceal the child’s identity.

The Complaint
Acting Chief Executive Officer, Warrick Frater, of the Hawke’s Bay District Health Board complained to the Press Council and included letters from two senior clinicians, Dr Ross Freebairn (Medical Director) and Dr Russell Wills (Consultant Community Paediatrician) of support.
He argued under two Press Council’s principles: Privacy, requiring careful attention to the sensibilities of those suffering from trauma or grief and the principle covering Children and Young People that requires editors to have particular care and consideration for children and young people. The complaint argued a breach of these principles.
Mr Frater argued that the child had seen his father shot and had been shot himself and that it was reasonable to assume that he would be suffering from trauma and grief. Therefore the child should not have been identified.
Mr Frater noted that The Dominion Post had published the photo before police had released the names of the dead man and the child.
Further, the child had not been advised his photograph would be used; parental consent was not sought, and neither his family nor the DHB were advised of the intended use of the photo.
The DHB later, at the time of the child’s discharge, issued a media advisory saying that the family requested that the media respect the privacy of the child and his family as they grieved for their loss.


The Newspapers’ Responses
Dominion Post editor Bernadette Courtney said extensive consultation with senior staff and a lawyer preceded the decision to publish the photograph unpixellated.
She stated that the photo had been taken by a NZPA photographer who supplied it to other media for use. She knew that the photograph had been taken from a ‘public place’ and that trespass was not a consideration.
She said the child’s family had not complained. After publication of the child’s photograph the family had provided a photo of his father (the dead man) and been interviewed at length.
She said she had considered Fairfax Media’s code of ethics, industry ethics and the Press Council’s principles and decided to publish the photograph based on news value.
She stated that there was no legal impediment to the paper’s publication of the photograph; that it was a news story of high interest and she believed that there was justification for running the photograph unpixellated.
Hawke’s Bay Today editor Natalie Gauld argued the same ground as several of the points raised by Ms Courtney.
By the time Hawke’s Bay Today was published, the police had released the names of the parties.
Ms Gauld stated that the matter was of public interest, and that her paper’s focus was on community outrage at the attack. She reiterated previous comments about sensitivity and said that the boy was not showing visible signs of distress.
In her final comment, Ms Gauld stated that Dr Wills’ letter was his personal interpretation and that her team felt it was a sympathetic and caring photo.

Further responses
The DHB responded to Ms Courtney that their contact with the child’s family subsequently, and the fact that the photograph had been supplied by the NZPA, were irrelevant. The child had a right to privacy and the rights of children and young people had not been adhered to.
Ms Courtney noted that Press Council guidelines do not prohibit the publication of the photograph.
To the Press Council she stated that “in a trauma/grief situation special consideration is required and my position is that the newspaper gave this special consideration, with several extensive discussions between myself, the newspaper management and the staff at the scene before publication.”
She said ongoing contact between the paper and the child’s family indicated the family did not feel its privacy had been invaded nor had they laid any complaint about publication of the child’s photograph.
In a subsequent comment, the DHB said its sole concern ‘was, and continues to be, over the decision of the paper to clearly identify the face of an eight year old boy as he was being taken into the Emergency Department of Hawke’s Bay Hospital’ in breach of the Press Council’s principles relating to privacy and children and young people.
The DHB did not accept Ms Gauld’s point that other newspapers also chose to publish the photograph unpixellated and noted that the NZ Herald, TV1 and TV3, most news websites including Stuff had pixellated the photograph.

Discussion
The facts of this case were not substantially in dispute. Both parties agreed that the photograph clearly identified a wounded eight-year old child and they also agreed that neither his permission nor that of his family was sought prior to publication. This was the core of these complaints.
However, there was considerable disagreement about whether Press Council principles had been breached, with the DHB claiming they had and the newspapers claiming they had not.
Differing views were also expressed by members of the Press Council. After lengthy discussion and debate, a clear divide emerged between those who would not uphold the complaint and those who would.
A majority of 6 members voted to not uphold, a minority of 4 members voted to uphold.
In the view of the majority, the Council Principles relating to Privacy (“those suffering from trauma or grief call for special consideration”) and Children and Young People (“Editors should take special care and consideration when reporting on children and young people”) were not breached.
It is worth noting that the Principles do not forbid the publication of photographs of victims, even victims who are children or young people. For example, photographs that clearly identify grieving survivors have been used in times of great public tragedy as in the Wahine disaster.
Photographs published to illustrate such events may be moving, even disturbing, but they do reveal the truth of a situation in which there is great public interest. Such photographs can be powerful and yet still contain inherent sensitivity for those portrayed.
The events surrounding a highly dangerous gunman on the run from the police would have been of significant public interest, especially within the newspaper’s catchments.
Those arguing not to uphold the complaint noted that the photograph was taken in a public place, at a distance, and that there had been no complaint from the child’s family.
Finally and above all, a majority of the Press Council believed that the photograph was sympathetic rather than sensational. The child was shown closely attended and supported by two ambulance officers, one of whom had his arm around the boy’s shoulders. His eyes were central and confronted the viewer but the effect was not to shock but to make the viewer feel sorrow and concern.
The complainant made the point that the photograph could easily have been pixellated to blur his face and thus blur his identity.
Such treatment would have rendered him anonymous and would have undermined the impact of the child’s plight. A pixellated face becomes the face of anyone – a real face brings home the situation of a wounded child who had just lost a parent.
Here, one pair of eyes was enough to provide a human connection.
In summary, a majority of the Press Council took the view that the photograph did not exploit the child and his situation.
While the majority felt that the photograph was sympathetic, a minority felt that it showed surprise by all parties, whose attention appeared to have been gained by someone in the direction of the photographer, and thus the reactions could have been shock. They felt that the photograph was intrusive, and that the child’s face should either have been pixellated, or the photograph not published.
It was further noted that strongly-worded letters had been received as part of the complaint, from both the hospital’s Medical Director and a Consultant Paediatrician. These experts would be in a position to make an informed decision about whether the publishing of such a photograph was an unwarranted intrusion into the boy’s privacy and potentially likely to cause further trauma.
While neither of the above parties spelled this out explicitly, they did use words such as “His vulnerability as an eight-year-old boy is great;” “I believe the interests and vulnerabilities of children exposed to traumatic events, should override any news value;” and “I am appalled at The Dominion Post’s lack of sensitivity over this issue.”
It is necessary to balance freedom of expression against the two principles, namely Privacy (Those suffering from trauma and grief call for special consideration) and Children and Young People (Editors should have particular care and consideration for reporting on and about children). In the case of an 8 year old boy, whose father had been killed and who himself had been shot, these principles were breached in the view of the minority.
There was public interest in the wider story that there was a gunman on the loose who had shot a man and his son, killing the man. But the story would not have been diminished by the privacy of an eight-year-old, who would have been in trauma, not being breached by the publication of a photograph clearly identifying him.
The fact that some members of the extended family later co-operated in an interview is irrelevant, as their co-operation could not have been known at the time of publication. It is noted that the family sought the DHB’s assistance in protecting the child’s privacy on his discharge from hospital.
With the above in mind, the minority of four members did not believe that the public interest in the case should override the rights of the child to privacy.

The complaint is not upheld.

Those voting not to uphold the complaint were Keith Lees, Clive Lind, Penny Harding, Sandy Gill, John Roughan and Kate Coughlan.

Those voting to uphold were Barry Paterson, Lynn Scott, Stephen Stewart and Pip Bruce Ferguson.