ASSOCIATE MINISTER OF TRANSPORT AGAINST SUNDAY STAR-TIMES

Case Number: 990

Council Meeting: SEPTEMBER 2004

Verdict: Upheld

Publication: Sunday-Star Times

Ruling Categories: Privacy
Confidentiality
Embargoes
Misrepresentation, Deception or Subterfuge

The Press Council has upheld three separate complaints namely from Associate Transport Minister, Hon Harry Duynhoven; aviation safety specialist, Peter Rhodes; and Transport Accident Investigation Commissioner, Hon Bill Jeffries, over non-compliance by the Sunday Star-Times (SST) with an embargo issued by the Transport Accident Investigation Commission (TAIC).

A TAIC report on the crash of a light passenger aircraft on approach to Christchurch Airport in June 2003, in which eight people died, was issued to selected addressees, including a SST reporter, over 11 and 12 March 2004. All of these copies were marked that it was subject to an embargo against publication and public discussion before 1 am, Tuesday 16 March. The SST nevertheless reported on the TAIC’s findings, on Sunday 14 March . No other media breached the embargo although one major daily newspaper with an in-depth analysis in preparation felt obliged to go to print a day early, after the SST jumped the gun.

Mr Duynhoven, maintained that the newspaper had acted unethically, in that the embargo had been put in place to allow those affected by the accident to come to terms with the report before it was publicly released.

Mr Rhodes, an independent air accidents investigator with a “thorough working knowledge of international standards in other ICAO states,” considered the newspaper’s conduct to be “seriously deficient”. … “The purpose of a TAIC report is to find the cause, with a view to prevention, rather than to find blame. This is an international requirement under ICAO Annex 13, to which New Zealand is a signatory.” Media are given “advanced access .. to permit careful accurate analysis of the findings and consultation with the aviation safety specialists involved to permit accurate and useful public dissemination of, often, complex technical investigations”. Moreover, he claimed the embargo gave those directly affected a breathing space in which to come to terms with the report “free of media contact”. Mr Rhodes noted an international dimension to the case. “The aviation industry in New Zealand is very small by international standards. We need the input of other aviation states to measure our own safety standards against.” The actions of the SST “seriously dented the likely flow of safety information by the inappropriate publishing of a sensational, non-analytical version of a thoroughly conducted air accident report.”

Mr Jeffries, asserted, in a memorandum to the Press Council of 20 May, “the Sunday Star Times had breached an embargo to which it was a party by approaching and discussing the report’s contents with next of kin and publishing its story before the embargo was lifted.” The breach was compounded by a failure to give notice to TAIC of the intention to publish. Subsequent exchanges with the SST had not “to any degree” satisfied the Commission’s complaint. "Relevant Press Council principles appear to be Confidentiality, Subterfuge, and Privacy (dealing with those suffering from trauma or grief) taken together with the accepted conventions surrounding the use and observance of embargoes by newsmakers and the media”

Mr Jeffries outlined TAIC practice in releasing reports of this kind. ‘Interested Parties’, persons directly involved with the technical issues, or whose conduct may have been a cause of the accident, are able to see a draft copy of the report “in the interests of natural justice, and enhancing accuracy and fairness.” This group would, however, receive the final report “at the same time and under the same embargo conditions as other recipients”…. “Survivors and next of kin of any dead are not included in the draft stage unless they happen also to be an Interested Party (in other words, generally crew) and receipt of the report is the first time that they see details of the investigation, its findings or recommendations.” The embargo on public discussion of the final report is generally for 3-5 days. “Briefings and news media conferences may occur during the embargo period, with the content subject to the same embargo.”

The SST and the TAIC made written submissions and also attended a formal hearing. The Press Council agreed to both sides making personal appearances, according to its established procedures. The newspaper was represented by legal counsel, Mr Peter McKnight; the editor, Cate Brett; and news editor, Miriyana Alexander. The TAIC was represented by its chief executive, John Britton; and media and victims liason officer Peter Northcote. The Minister and Mr Rhodes did not attend.

In the course of the exchange of the parties’ respective submissions a factual dispute about statements supposedly made at an informal social gathering arose. The TAIC provided an affidavit in support of its view, which was responded to by an affidavit from the SST challenging it. The final resolution of the factual matter was, in the view of the Council, unnecessary as it was not germane to the essential decision the Council had to make and, as the parties were advised at the hearing, was put to one side.

Mr Britton argued that the SST, by accepting a copy of the embargoed report, had implicitly accepted the terms of the embargo. These included the stipulation that if a newspaper did not intend to respect the embargo, it should disclose its intentions to the TAIC. He also made the point that the newspaper was not able to escape the prohibition of the embargo by seeking, from another source, another copy identical to the one sent to the newspaper.

The SST acknowledged that the embargo was known to the newspaper and that a Christchurch-based reporter received a copy of the TAIC report under the embargo arrangement. Ms Brett said that, nevertheless, staff did not draw from the report supplied officially to the newspaper in Christchurch when preparing the article in question on the Saturday. Rather, “a source of one of our Wellington reporters…provided him with a copy of the report.”

The editor informed the Council that a reporter had been assigned to look for a copy on the Saturday morning. Counsel for the SST contended that the reporter had been completely unaware of the embargo. The editor said she believed the newspaper could, in any case, make use of the information in the report because no undertakings had been given as to the embargo in respect of that particular copy.

The SST further argued that, since the TAIC report was to be made public, in a day or two, the material in it could not be confidential. Nor did it have “(an) element of temporal confidentiality.” Thus the paper contended there was no legal impediment to publication. Was the embargo necessary “for the protection of persons who might be adversely affected by the report’s findings?” The newspaper maintained that this could not be so, since “TAIC’s standard procedure…was to send a draft report for comment and submission before the final report could be released.” Recipients “would therefore have been well aware of the likely findings for some considerable period prior to the release of the final report”. Moreover aviation industry contacts had assured the newspaper that there was nothing in the TAIC report of a technical nature to justify an embargo. Accordingly the SST concluded that “ administrative convenience was an important factor in imposing an embargo.” The editor has also argued in a letter to The Listener – supplied to the Council by the TAIC - that the right of free speech justified her decision to ignore the limitations on public discussion imposed by the embargo.

The newspaper’s case essentially rested on the proposition that it had accepted the terms of the embargo in respect of the copy of the report distributed officially by the TAIC, but not on another copy – which fell otherwise into its hands. This is to make a distinction without a difference. All pre-release copies of the report, no matter who received them, or how, were marked as subject to the embargo.

The Press Council does not accept the argument advanced by counsel for the SST that “the wording of the embargo was not sufficiently wide to bind those parties that received copies of the Report independently of the TAIC”. All copies of the report originated with the TAIC; all copies issued subject to the embargo were so designated.

An embargo will plainly never be used to protect information of a secret or confidential nature. It is only a temporary constraint. The Press Council accordingly finds that the newspaper’s argument, that the embargo could be breached because there was nothing secret or confidential about the information, does not stand up. The official purposes behind an embargo lie elsewhere – to permit timely evaluation, absorption of detail and the implications of a study or process (or a government pronouncement – like the Budget).

Nor was it correct to contend that all those affected by this particular report had ample time to adjust. Next of kin and others whose involvement was of a personal nature received the report only within the 3-5 day time-scale dictated by the embargo. The SST claimed that since nobody in this group had complained to the newspaper about the article, none had felt aggrieved. But the TAIC said it received a number of anguished complaints. Equally the Press Council sets aside the view of unnamed aviation experts that there was nothing in the report of such a technical nature as to justify an embargo. Their opinions hardly outweigh the interests of the general public, or of the broader aviation community, as determined by the duly accredited authority, the TAIC.

This particular report carried much freight, bearing on the safety of public transport and the grief of many people. For the Press Council the ethical issues were the key. The Council agrees with the TAIC that there were good and valid reasons for the embargo: to promote informed analysis of technical findings and to protect next of kin and others from the shock of learning about painful findings through only partly digested newspaper reports. There was nothing to suggest that it had been imposed as a matter of “administrative convenience”, as alleged by the newspaper. By short-circuiting the embargo the SST disregarded legitimate ethical concerns – as asserted by Mr Duynhoven. The newspaper’s assertion that the dismay of next of kin was unlikely to have been made worse by being unexpectedly sought out by reporters three days earlier than scheduled illustrates the point.

Press freedom is of course fundamental. Clearly there are circumstances where an embargo may attempt to suppress free comment. This was not one of them. Editors, in considering their response to any embargo, must weigh the justification for subjecting the information to temporary protection and therefore whether they wish to respect the terms of that embargo. Accepting a copy of a report of this kind effectively commits editors to the terms under which it is issued. There is no legal sanction. But there is an obligation to respect the wider public interest. In this case TAIC asked all recipients to inform them if they did not intend to respect the terms of the embargo. This would have allowed the agency to make other arrangements to warn next of kin and prepare them for early release of the information from the report. The SST failed in this regard.

In many cases embargoes can serve the interests of the media – and this factor too should be considered by editors. Restraint on the natural journalistic instinct to pursue a ‘scoop’ may sometimes be appropriate. Haste may lead to failure to do justice to the issues.

By failing to take sufficient account of grief or trauma, the issues of aviation safety and the wider political and social context, the Sunday Star Times breached Press Council principles to do with the need to uphold the highest standards of ethical journalism. The Council upholds all three complaints.

The Press Council also draws the attention of editors to the importance of responding in person to individual complainants. The complainant, Mr Rhodes, clearly had a background in international aviation safety and a point of view that lent legitimacy to his contentions. It is unsatisfactory and contrary to agreed complaints procedures for him to have received no more than copies of material sent to other complainants.

The Chairman, Hon Sir John Jeffries, took no part in the Council’s deliberations.