TA'AFULI ANDREW FIU

Case Number: 2643

Council Meeting: JANUARY 2018

Verdict: Not Upheld

Publication: New Zealand Herald

Ruling Categories: Accuracy
Balance, Lack Of
Children and Young People
Discrimination
Photographs
Privacy
Unfair Coverage

Overview

[1] Ta’afuli Andrew Fiu complains that a New Zealand Herald online article dated December 10, 2017 breaches the following NZ Press Council principle:

  • Principle 1: Accuracy, Fairness and Balance
  • Principle 2: Privacy
  • Principle 3: Children and Young People
  • Principle 7: Discrimination and Diversity
  • Principle 11: Photographs and Graphics

In a response to Mr Fiu, New Zealand Herald senior newsroom editor Oskar Alley has also addressed the following NZ Press Council principles, as they relate to the various components of the complaint by Mr Fiu:

[2] The article discusses the ruling by the NSW Supreme Court on the conflicting wishes of the birth parents of a Māori teenager named Pono Aperahama, who passed away in Australia and, whether the teenager’s body would be cremated in Australia or whether his body would be returned to New Zealand for burial in accordance with his birth mother’s wishes.

[3] The article originally included an embedded image of Facebook messages from the deceased teenager’s mother to his sister, her daughter.The comments displayed the use of ‘severe language’ in the form of verbatim swear words.

[4] The embedded image of the Facebook messages was removed by the New Zealand Herald following the complaint by Mr Fiu.

The Complaint

[5] The complaint is based on a New Zealand Herald online article titled ‘NSW Supreme Court makes decision on teen’s body for feuding Kiwi family’.

[6] Mr Fiu has complained the article breaches the NZ Press Council principle of Accuracy, Fairness and Balance.

Principle 1: Accuracy, Fairness and Balance

[7] Mr Fiu has also questioned whether New Zealand Herald had permission to publish “photos from a family member’s Facebook account”. In relation to obtaining permission vis-à-vis Facebook comments he has said, “at the time of printing you have not stated whether the invasion of privacy by publishing Facebook comments from a grieving family gave you permission to do so”.

Principle 2: Privacy

[8] Mr Fiu has suggested that the New Zealand Herald has not exercised ‘special consideration’ in relation to the content of the article, “In cases involving a handicapped teen due from an accident as the story of his death whilst in rehabilitation, you have not exercised extra care as this family is still suffering from extreme grief.New Zealand Herald should have special consideration before publishing Facebook lifted comments and photos from a family member’s Facebook account.”

Principle 2: Privacy

Principle 3: Children and Young People

Principle 11: Photographs and Graphics

[9] Mr Fiu has discussed the emotional context for the Facebook messages from the mother to the daughter, “These comments illustrate an emotional feud between family member’s and should not have been published which sensationalised even further this news story.”

Principle 2: Privacy

[10] Further to the paragraphs above Mr Fiu has remarked on the inclusion of verbatim wording of comments from a Facebook posting which was originally embedded into the article in which the mother uses ‘severe language’ directed at her daughter, the deceased’s sister.Mr Fiu has suggested the inclusion of “foul language” shows poor taste by theNew Zealand Herald, “I see this as designed to promote a ‘shock factor’ and to highlight a lower image of Māori as below standard people within our communities both in Australia and New Zealand.”

Principle 7: Discrimination and Diversity

[11] Whilst Mr Fiu’s complaint focused on the alleged breach of principle 1: Accuracy, Fairness and balance, the complaint also includes the breach of additional NZ Press Council principles.The additional principles were included in the response by theNew Zealand Herald senior newsroom editor, Mr Oskar Alley.

Principle 1: Accuracy, Fairness and Balance – this principle outlines the requirement for accurate content, reporting with fairness to each party, when there is more than one involved, and balanced reporting.

Principle 2: Privacy – this principle refers to privacy of person, space and personal information.

Principle 3: Children and Young People – in cases involving young people editors must demonstrate an exceptional degree of public interest to override the interests of the young person.

Principle 7: Discrimination and Diversity –this principle refers to issues of race amongst many other categories.It also highlights that gratuitous emphasis should not be placed on any such category.

Principle 11: Photographs and Graphics – this principle guides editors to take care in photographic and image selection and treatment.

The Response

[12] In a response to Mr Fiu about ‘accuracy’, New Zealand Herald senior newsroom editor, Oskar Alley, has described the article as being “entirely accurate” as it “reports on the New South Wales judge’s decision and the background to Pono’s death.In responding to the complaint of ‘balance’ Mr Alley stated there had been several attempts to contact the family of Pono Aperahama, “we have made repeated approaches to both the mother and father’s sides of the families for an interview”.

[13] Mr Alley further added that the publication of the article was delayed by “several days” as theNew Zealand Herald was unsuccessful in being able to obtain “interviews with family members.”The reporter had approached “both sides to the dispute” but they “either declined to comment or did not respond”.

[14] Addressing the provision set out in Principle 2 (Privacy) Mr Alley has said that theNew Zealand Herald considers there to be “a strong public interest in this matter” on the basis that “an Australian court has been asked to rule on a matter of tikanga Māori, setting an important legal precedent in relation to the death of New Zealanders in Australia.”

[15] Mr Alley has said “Pono’s death in unusual circumstances was already in the public domain and had received extensive media coverage two months before the Supreme Court decision was issued.”Mr Alley has again stated that theNew Zealand Herald believes “the legal debate and precedent to be of significant public interest and relevance.”

[16] In response to the point raised by Mr Fiu that the “family is still suffering from extreme grief” Mr Alley has said, “this matter has now become a legal case conducted in the public forum of a courtroom.”Mr Alley has further added, “We do not suggest there is a timeline for grief to pass, but I note that Pono’s death took place in October last year and this article addresses the more recent matter of the court case.”Mr Alley further emphasises that “The matter was firmly in the public arena by the time his mother and father went to the Supreme Court to seek a ruling over funeral arrangements.The case was heard in an open court and the judge’s decision was issued publicly, putting this matter squarely in the realm of the public domain.”

[17] Mr Alley addressed Mr Fiu’s main concern which he says, “appears to be the publication of information posted on Facebook.”Mr Alley has explained that the “court was told that the battle over Pono’s remains had become very bitter and produced an extensive argument between the mother and father’s families.This bad blood is confirmed in a series of Facebook messages that began as private messages but have since been re-posted publicly.”

[18] Subsequent to the original response from the New Zealand Herald Mr Alley has provided further commentary on the “social media exchanges between Pono’s mother and sister” in which he has explained “these were conducted on [Pono Aperahama’s] sister’s Facebook page, which has no privacy settings, and are there for anyone to read.Several exchanges take place over more than a week and include a bitter dispute not just over the legal fight over Pono’s body but also other issues pre-dating the boy’s death by many years.”

[19] Mr Alley agreed with Mr Fiu that the inclusion of the swear words in the Facebook comments which was embedded into the article as an image was not appropriate, “…you make a very valid point about the severity of the language used and I have removed the Facebook embed from the article early this morning.”

[20] In considering the use of “a photograph of Pono” Mr Alley has advised “this image has been used extensively by both Australian and New Zealand-based media.”


[21] A key focus of Mr Fiu’s complaint was whether permission was sought by New Zealand Herald to use the Facebook comments and photographs from members of the deceased’s family.In response to this, Mr Alley has stated “Please be advised that the media does not require permission to re-publish information posted on social media.”

[22] Mr Alley referred to a previous ruling by this Council in favour of the media being able to re-publish images from social media sites on the basis that “a reasonable attempt is made to contact the page administrator (in this case we have repeatedly made such approaches, spanning several days).”He added further comment on this matter in a subsequent response to Mr Fiu’s complaint, “As explained to Mr Fiu, the Council has previously ruled that the internet is a public place and an open social media page indicates an implied use for news purposes. That said, the two participants in the Facebook exchange were both contacted to seek interviews and the article was delayed in the hope both parties would agree to speak.”

[23] In response to Mr Fiu’s suggestion that the New Zealand Herald has attempted to “highlight a lower image of Māori as below standard people within our communities both in Australia and New Zealand.” Mr Alley has provided the following response to Mr Fiu, “As outlined earlier, this case establishes a legal precedent over what can be done with the body of a New Zealander who dies in Australia – this has potential consequences for the future.”A subsequent response from Mr Alley states “Such a suggestion is rejected” on the basis that “Pono’s parents’ Māori heritage and clashing tikanga beliefs were directly relevant to the court case.The publication of the Facebook exchanges between mother and sister served to highlight the bitter background to this dispute and to illustrate the depth of feeling.Publishing an embed of the Facebook exchange was not done to embarrass either party, and it was certainly not done to denigrate Māori in general.The post provided an unfiltered insight of a public falling out between relatives and serves to demonstrate how estranged the two sides of the family had become and why going to court was necessary to resolve the dispute over Pono’s funeral arrangements.”

The Decision

The Decision

[24] The NZ Press Council Principle 1 states that “publications should be bound at all times by accuracy, fairness and balance…In articles of controversy or disagreement, a fair voice must be given to the opposition view.”The content of the article satisfies the requirement set out in Principle 1 in that it was a report on the recent ruling of the NSW Supreme Court.The New Zealand Herald did attempt to contact both sides of Pono Aperahama’s family for comment but those approached either refused to comment or did not respond.The inclusion of the photograph and comments taken from Facebook will be addressed in considering Principle 2, Privacy.

Principle 1: Not upheld.

[25] The photograph used in the article has been used extensively by both Australian and New Zealand-based media so we find that there has been no breach of principle 2 in relation to the photograph.

The embedded image of the Facebook comments from Pono’s mother to her daughter, the deceased’s sister, was lifted from a Facebook page where the privacy settings were not used and any member of the public could see these comments.TheNew Zealand Herald had attempted to contact both sides of the family in the hope of being able to interview them however they were unsuccessful in being able to obtain interviews with family members.The approaches for an interview made by theNew Zealand Herald were either declined or there was no response by those approached.Whilst theNew Zealand Herald did act quickly to remove the embedded image of the Facebook comments following the complaint by Mr Fiu, we think theNew Zealand Herald erred in its initial decision to include them.If the New Zealand Herald had not taken such quick action to remove the embedded image of the Facebook comments it is possible the Council may have agreed to uphold a breach of this principle.

In his response to the complaint Mr Alley has stated that a strong public interest in this matter existed on the basis that an Australian court had been asked to rule on a matter of tikanga Māori.In essence, the court was considering the wishes of Pono Aperahama’s birth parents and whether he would be cremated or his body returned to New Zealand for burial.We acknowledge that Pono’s mother wanted his body returned to New Zealand so that he could be buried according to Māori customary practices but we think it is overstating it to suggest the Australian court had been asked to rule on a matter of tikanga Māori.

Principle 2: Not upheld.

[26] The focus of the newspaper article was on the outcome of the court case determining the dispute between Pono Aperahama’s birth parents on whether his body would be cremated or returned to New Zealand for burial. In this matter the principle has not been breached as the article was referring to the dispute between the family members in relation to the deceased teen.It had little, if any, relevance to the interests of the teen, if indeed a deceased person can be said to have interests.

Principle 3: Not upheld

[27] In considering Principle 7, there is provision to discuss race as a legitimate subject for discussion where there is relevancy and when it is in the public interest.In his complaint, Mr Fiu alleges that theNew Zealand Herald included Facebook comments from Pono’s mother to her daughter and suggested that these were included to “highlight Māori as below standard people”.As there was no gratuitous emphasis placed on Māori as a race this Principle has not been breached.

Principle 7: Not Upheld.


[28] Mr Fiu’s complaint focused on the inclusion of both a photograph taken from Facebook as well as comments which were embedded into the article as an image.Editors are cautioned to ‘take care in photographic and image selection…’An explanation has been provided that there were no privacy settings on the Facebook pages where the images were lifted from.We acknowledge that the embedded image of the comments was subsequently removed following the complaint by Mr Fiu but as we have stated above, if theNew Zealand Herald had not acted promptly in removing the embedded image of the Facebook comments between Pono’s mother and his sister, her daughter, this may have resulted in an uphold.

Principle 11: Not upheld.

Press Council members considering this complaint were Sir John Hansen, Liz Brown, Jo Cribb, Chris Darlow, Tiumalu Peter Fa’afiu, Jenny Farrell, Hank Schouten, Christina Tay and Tim Watkin.

John Roughan took no part in the consideration of this complaint.