COMPLAINT AGAINST LUCKY BREAK

Lucky Break is a weekly magazine designed for a general readership with stories about the fortunes and misfortunes of ordinary New Zealanders. “It’s not about celebrities,” its website explains, “it’s about the person next door and their incredible triumphs and tragedies...” The complainant’s photograph was published in the June 9 issue as part of an illustration for a story of a gruesome murder. She had no connection to the crime apart from being a relative of the woman convicted.
The story described how in a fit of rage one woman killed another with whom she had been having an affair. Reportedly, an argument developed and the convicted woman stabbed her lover 33 times, cut her throat and severed both ears, stuffing one of them in the dead woman’s mouth. The next day she buried the body in bush some distance away. The illustration above the story was primarily of the crime scene investigation but a small inset photograph showed two women embracing. It was captioned, “Family members on both sides were distraught.”
The identifiable woman complained that the picture was printed without her knowledge and she did not want to be associated with an event that had caused so much heartache. She did not want people finding out that it involved a member of her family. She had attended the court reluctantly to keep her family informed. She tried to avoid the media for her children’s sake and on the day the photograph was taken she was escorted to her car by a police officer in an attempt to keep the media at bay. But the victim’s daughter had been courting publicity and was waiting at the car with a reporter. The complainant called the picture a “set-up”.
When the photo was published in Lucky Break, more than a year after the trial, the complainant said she cut and dyed her hair, could not sleep for three nights and did not leave her house for a week. She remained still nervous being anywhere that had magazines lying around. She believed the photograph to be a breach of the Press Council’s principle of privacy which states in part: “Publications should exercise care and discretion before identifying relatives of persons convicted or accused of crime where the reference to them is not directly relevant to the matter reported.”
For Lucky Break, the Bauer Media Group legal counsel Genevieve O’Halloran responded that the picture was taken in a public place and made widely available through a syndicated news service. While the caption identified the complainant as a “family member” associated with the case it did not specify whether she was related to the assailant or the victim. Ms O’Halloran did not believe the complainant warranted special consideration such as might be accorded a victim of trauma or a vulnerable child. There was no ethical or legal requirement in New Zealand to seek consent from subjects of images captured in public places and any such requirement would have “a chilling effect” on news gathering.
The Decision
Press and television coverage of criminal trials often includes photographs or footage taken outside the court of family and friends of those involved. They are not often named but they will be recognised by those who know them. The Council’s principle of privacy requires the exercise of care and discretion in identifying relatives of those accused of crime where the relatives are not “directly relevant” to the subject matter. Though the complainant's name was not used, there is no question she was identifiable in the photograph. The question is, was she “directly relevant” to the matter reported?
She had no part in the magazine’s account of events. Her name did not appear in the story, which included comments from the murdered woman’s daughter but made no mention of the convicted woman's family. However, the Council recognised that the reactions of families of the accused or convicted, as well as families of victims, can be relevant to the story of a crime. Families of a guilty party are naturally not as willing to comment and it will frequently happen that their only presence in a report is in a picture, particularly of their reaction to a conviction or sentencing. Their visible reactions can speak clearly to the reader. The article simply stated that the family members on both sides were distraught.
It was also clear in her complaint that the crime caused great distress for the convicted woman’s family and this is a dimension of information in crime reports that the Council was reluctant to discourage.
While the Council needs to balance the interest of personal privacy against the interest of public information we need to be cognizant that this photograph was taken in a public place. Indeed, the privacy principle cited in this case also states, “the right of privacy should not interfere with publication of significant matters of public record or public interest.”
The Council had sympathy for the complainant, particularly in view of the way she said the picture was taken, and the effect its publication has had on her, but did not uphold the complaint. To do so, it said, could create a precedent that would deny newspapers the ability to capture such images in a public place and portray the important fact that families of the guilty suffer too. Editors should always bear in mind the discretion they have in deciding whether or not to publish. It is an ethical not a legal decision.
Professor Tim Beaglehole would have upheld this complaint and dissented from this decision
Press Council members considering the complaint were Sir John Hansen, Tim Beaglehole, Liz Brown, Peter Fa’afiu, Jenny Farrell, Sandy Gill, John Roughan, Marie Shroff, Vernon Small, Mark Stevens and Stephen Stewart.