“ABC” [anonymised] AGAINST THE OTAGO DAILY TIMES

Case Number: 3418

Council Meeting: 7 August 2023

Decision: Upheld

Publication: Otago Daily Times

Principle: Accuracy, Fairness and Balance
Privacy
Confidentiality

Ruling Categories: Behaviour of Journalists
Court Reporting
Detail Needlessly Prejudicial

Overview

  1. On February 18, 2023, the Otago Daily Times published an article on a court case that involved a dairy robbery. The victim, a woman who worked in the dairy, read out her victim impact statement in court. She says that after the court hearing, she asked the newspaper’s reporter not to publish her name or details of a particular medical matter. She complains that the Otago Daily Times did publish her name and mentioned the personal issue. She says this has caused her as much if not more trauma than the actual crime. The complainant says the article breaches Principle (1) Accuracy, Fairness and Balance; Principle (2) Privacy and Principle (8) Confidentiality. The complaint is upheld on Principle (2).

The Article

  1. This news story was about a man who robbed a dairy worker while wearing a balaclava and carrying a tomahawk.
  2. The man was on a drug-fuelled three-day crime spree and appeared on Friday, February 17, 2023, for sentencing in the  District Court. The victim could clearly see the tomahawk.
  3. The article quoted the victim reading her victim impact statement in court. She said she felt anxiety at work and in her personal life and was now triggered by doorbells, especially at night. She also said she was exhausted and  felt powerless.
  4. "I’ll never forgive you for what you’ve taken away from me," she said in her statement.
  5. The Otago Daily Times (ODT) published its article online and in print the following day, Saturday, February 18. The article named the victim. 

The Complaint

  1. The complainant says two journalists approached her after the court hearing, one from the ODT and the other from another organisation.
  2. She says she repeatedly told both journalists that she did not want her name or particular medical details published. She says her Victim Support advocate and a police officer witnessed her request.
  3. She says she had an agreement with the ODT reporter that they would have a conversation the following day, February 18, so she could clarify her statements to the paper and settle her nerves. She believed nothing would be published until Monday, February 20.
  4. The ODT published the article the following day.
  5. The complainant, supported by her Victim Support advocate and partner,  says she met two ODT representatives, on Monday February 20. The meeting was organised by her support advocate. This amounted to her initial complaint.
  6.  After that meeting, she says the ODT removed her name.
  7. The complainant believes there has been no acknowledgment of what this has done to her mental health. She feels this has caused her more trauma than the robbery itself. She is scared. She feels her name should never have been published, and that no victims’ names ever should be.
  8. She says she feels violated and should not have had to explain to the reporter why she did not want these two aspects published. The matter had resurfaced childhood trauma she suffered and she is now receiving trauma counselling as a result of the article.
  9. The complainant’s victim support advocate told the Media Council she was with her at the sentencing and the complainant was a fragile state.
  10. The advocate says she asked the ODT reporter if she had a business card, and she went to get one and that the reporter returned, saying she would contact the complainant the next day to confirm what she was happy to have in her report.
  11. The advocate says the complainant told both reporters several times that she did not want her name or medical issue mentioned.

The Response

  1. The ODT says that after receiving the complaint it immediately removed from the article the complainant’s name and the line detailing the medical issue.
  2. The paper said it was concerned at the suggestion its experienced reporter named the complainant against her wishes. The reporter maintains that she was not present when the complainant made the request for her name and some specifics of the case not be used in the story.
  3. The paper says the reporter was needed back in court and only spoke to the complainant a very short time before rushing off. The reporter checked this version of events with another person present who she believed would be able to back her up on this if required. However, the ODT has subsequently told the Media Council it has not been able to find this witness.
  4. The ODT says the reporter is not accusing the complainant of deliberate mistruth but believes the request was likely made to the other journalist after she had left.
  5. If the request had been made in her presence, she says she would have followed the complainant’s wishes. In the absence of hearing the request, the journalist reported what she heard in open court.
  6. Reporting from victim impact statements is an everyday part of reporting what goes on in the court. While often horrific and deeply personal, reporting from victim impact statements is often the best way to inform readers about the impact of crime, the ODT says.
  7. The paper says that when victims do not want to be named this is usually communicated to the court and names and any other details they do not want reported are regularly suppressed.
  8. The ODT says that in this case there were no suppressions. The decision to publish was made in this context and not unusual.
  9. The reporter stood by her version of events and maintains the issue about not including the complainant’s name was not discussed in her presence. She gave her card because she was interested in doing a follow-up story.
  10. The reporter did not say she would speak to the complainant the next day before the story was published. This would be unusual for a court reporter because they are expected to file stories on the day the case is held.
  11. The ODT stresses that the reporter followed the rules of the court and reported the name and details provided in the victim impact statement because there were no suppressions.
  12. It also says had it known that the complainant did not want to be named and did not want particular medical information given in open court to be reported, the paper would have followed her wishes even though it was not legally obliged to.
  13. However, once the paper learned of the complainant’s wishes, it quickly amended the article.

The Discussion

  1. The complainant has made this complaint under three principles and the council will deal with each principle separately.
  2.  Principle (1) sets out that ‘’Publications should be bound at all times by accuracy, fairness and balance, and should not deliberately mislead or misinform readers by commission or omission. In articles of controversy or disagreement, a fair voice must be given to the opposition view. Exceptions may apply for long-running issues where every side of an issue or argument cannot reasonably be repeated on every occasion and in reportage of proceedings where balance is to be judged on a number of stories, rather than a single report.’’
  3.  In this case, accuracy and balance are not at issue. But the question of fairness arises in both inclusion of the material complained about and how the complainant claims she was treated by the reporter.
  4. Open justice is an important cornerstone of a free media. From a legal perspective, the media is free to report what is said in court and name victims - unless court-ordered or statutory suppressions apply. There were no suppression orders in terms of the victim therefore the ODT has done nothing wrong in this respect.
  5. The Media Council considers this case highlights just how important it is for those involved in the justice system to make crime victims fully aware that they should seek suppression if they have concerns about their statements being made public via the news media.
  6.  What is at issue is the discussion that took place afterwards and which version of that discussion is correct. The complainant’s version is supported by her Victim Support advocate but the journalist maintains she (the journalist) was not present when the request to withhold information was made. The journalist says they have a witness to support their version of events but the ODT says it has not been able to find this witness.
  7. It is difficult for the Media Council to know which version of events is correct. It was not present, there is no official record of that discussion and it is not in a position to proactively investigate this aspect of the complaint. It is not in a position to believe one side over the other. The complaint is therefore not upheld under Principle (1).
  8. Principle (2) Privacy says: ‘’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.‘’
  9. The Media Council believes this court case was a matter of public record and was in the public interest. The ODT had every right to cover it in that respect and this complainant did not have name suppression.
  10. However, this principle also makes clear that people suffering from trauma or grief should be given special consideration. It can be strongly argued that every crime victim will be suffering trauma and grief and the issue of naming victims is a difficult one. Often it will come down to editorial discretion, but ultimately publications have every right to name victims if they do not have suppression.
  11. However, the Council believes the ODT should have carefully considered  the impact it would have by both naming the complainant and publishing personal medical details. The Council believes most right-thinking people would regard this type of issue as private and potentially embarrassing. Common sense should have prevailed no matter what the legalities and media rights were and what may or may not have been discussed outside court. The complainant in this matter is vulnerable and the paper had an obligation to at least afford her some sense of dignity and privacy in this regard.
  12. The Council considers the paper acted on this complaint promptly, but it is clear from the complainant’s perspective that the damage was already done.
  13. The Council finds the paper has breached the complainant’s privacy and therefore upholds the complaint under Principle (2).
  14. Principle (8) outlines that: ‘’Publications have a strong obligation to protect against disclosure of the identity of confidential sources. They also have a duty to take reasonable steps to satisfy themselves that such sources are well informed and that the information they provide is reliable. Care should be taken to ensure both source and publication agrees over what has been meant by ' off-the-record'."
  15. The material published was not confidential in and of itself. As stated in the discussion regarding Principle (1), it is difficult to prove exactly what was discussed outside court in this matter. A breach of confidentiality would apply if there was evidence the journalist or publication expressly agreed to keep something confidential and then published it. There is nothing in this complaint or response that suggests the reporter agreed not to print the details complained about or that this principle has been breached.
  16. Given this, the complaint under Principle (8) Confidentiality is not upheld.
  17. Decision:  The complaint is upheld under Principle (2) Privacy. It is not upheld under Principle (1) Accuracy, Fairness and Balance, and Principle (8) Confidentiality.

Note: The Media Council has not named the complainant in this decision given her identity is at the heart of the complaint.

Council members considering the complaint were Marie Shroff (Chair), Hank Schouten, Rosemary Barraclough, Tim Watkin, Scott Inglis, Ben France-Hudson, Judi Jones, Reina Vaai, Alison Thom


 

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