RICHARD WELLS AGAINST HERALD ON SUNDAY

Case Number: 2157

Council Meeting: DECEMBER 2010

Verdict: Upheld

Publication: Herald On Sunday

Ruling Categories: Privacy
Children and Young People
Schools, Identification of

Complaints were lodged with the Press Council by Dr John Angus, Children’s Commissioner; Margot Donaldson; Lewis Mills; Gen O’Halloran; Katie Satherley; Will and Cate Slater; Associate Professor Rosemary Tobin; and Richard Wells regarding a breach of Principles 2 (Privacy) and 3 (Children and Young People), against the Herald on Sunday, with regard to publication of a child’s photograph have been upheld.

Further complaints by Lewis Mills with regard to publication of the child’s name, and by Will and Cate Slater with regard to publication of details relating to a woman accompanying the child, are not upheld.

Background:
The Herald on Sunday newspaper, on September 26, 2010, ran a story on aspects of the Carmen Thomas case in which Ms Thomas, mother of a 5-year-old child, had died and her body had been dismembered, allegedly by her ex-partner Brad Callaghan, then awaiting trial.

On the front page of the newspaper, a photo of Callaghan’s pregnant fiancée Tanith Butler appeared, with photos of Callaghan and Ms Thomas. Readers were referred to a substantial article on the case that ran on page 7 of this edition.

The major photograph on page 7 was a shot of the child walking to school with Ms Butler. He was wearing school uniform and his face was not pixelated. Both parties were identified by name. Ms Butler was wearing sunglasses and her hair partly obscured her face. The child was clearly identifiable. Ms Butler’s employer (she was then on maternity leave) was also identified in the article, which examined aspects of the case.

The Complaints:
Complaints were lodged with the Herald on Sunday between 26 September and 6 October by all respondents named above. Complainants O’Halloran and Wells also notified the Children’s Commissioner of their concerns (his complaint was lodged on 27 September). All complainants alleged that the paper had breached Principles 2 and 3 of the Press Council with regard to the publication of the child’s photograph, and in school uniform which would enable identification of his school. In addition, Will and Cate Slater stated that publication of Ms Butler’s photograph and employment details also breached Principle 2; Mr Mills stated that publication of the child’s name breached Principles 2 and 3.

The Editor’s Response:
Editor Bryce Johns replied to each complainant promptly, along substantially the same lines. These were that 1) the paper doesn’t set out to upset readers and he was ‘disappointed you have taken offence’; 2) that the decision to publish the picture had been a difficult one and hotly debated, but in the end that public interest was deemed to justify the decision; 3) that the availability of a photograph of the child and his mother provided by the Police had ‘swayed’ the paper’s decision; 4) that a recent story out of Australia in which parents had both been killed but their newborn baby’s photograph had been published had not generated ‘a great outcry’; 5) that it was a tough decision, he was happy to consider publication of letters from complainants or key parts of those in the paper if requested; 6) that complainants unhappy with his stance could complain to the N.Z. Press Council; 7) that ‘based on the reaction this week I can assure you we don’t intend to repeat this in the coming weeks’; 8) that he was ‘comfortable that the public interest overrode the privacy and concerns about the effect on [the child] – at that time’ (last comment to complainant Tobin); and (9) that the photograph had been taken in a public place..

In response to two of the complainants, Mr Johns stated while he stood by his decision, ‘I don’t mind a reality check’ if the case was referred to the Press Council.

Further Comment form the Complainants:
None of the complainants was satisfied with the editor’s response and all chose to make a formal complaint to the Press Council. Several of the complainants, in their formal complaint, referred to the irrelevance of the editor’s citation of the Australian case, with one saying the situations were not at all comparable – “That tragic case bears little resemblance to the need for privacy for a child at the centre of a murder (sic) case”. Another said the editor was unlikely to be in a position where he would know what complaints might have been generated by the Australian case.

The Children’s Commissioner claimed that the Herald on Sunday story ‘would not have lost any impact had they also [as did other media] decided to blur or pixalate this child’s image’.

Several complainants referred to the dissimilarity of the photo released by police, of the child with his mother. In that photograph, the child was younger; his face was turned away from the camera and he was not in clothing that would identify his school.

Discussion:
The newspaper’s decision to publish the child’s photograph is the main issue in these complaints. His name had already been published and was widely known, so this fact subverts the complaint that the child’s name should not have been published.

The publication of Ms Butler’s employer, likewise, was not deemed to be in breach of Principle 2, so this aspect of the Slaters’ complaint is not upheld. The Press Council notes that it has received no complaint from Ms Butler.

However, from the general tenor of the complaints and from consideration of Principles 2 and 3, it is clear that, as one complainant put it, “By publishing his photo the Herald on Sunday may have compromised his ability to get on with his life, free from the glare of the public”. And as two other complainants mentioned, the story being of interest to the public does not necessarily mean that publication of details such as a photo of the child who is now deprived of both parents, is in the public interest.

Principle 3 states that ‘In cases involving children and young people editors must demonstrate an exceptional public interest to override the interests of the child or young person’. The Council has not upheld previous complaints about the publication of the photograph of a child involved in a crime of violence (Cases 2089 and 2090). The child in that case had been wounded in the arm by a gunman who had also fatally shot the boy’s father. The photograph showed the boy being tended by ambulance officers as he walked into the hospital. A majority of Press Council members voted not to uphold the complaint as they believed that the photograph’s ‘effect was not to shock but to make the viewer feel sorrow and concern’. In that case the boy was clearly part of the story and the published photo had currency as at the time of publication the gunman was still on the run.

In this case the Press Council believes that there was no public interest in publishing this photograph of the boy, let alone the exceptional public interest required by Principle 3. The photograph had no relevancy to the unfolding case, it was simply a small boy on his way to school, and the publication of it was gratuitous.

The Press Council accepts the editor’s genuine desire to place this decision, which he freely admitted was a difficult one, before the Council. This kind of scrutiny of the Press by an independent body is one way that editors can ensure that their decisions are sound.

The publication has breached Principles 2 and 3 and the complaints are 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, John Roughan, Lynn Scott and Stephen Stewart.