BRIAN ASHBY AGAINST STUFF

Case Number: 2795

Council Meeting: AUGUST 2019

Verdict: Not Upheld

Publication: Stuff

Ruling Categories: Defamation/Damaging To Reputation
Misleading

Overview

[1] Brian Ashby is a sports commentator and journalist based in Canterbury. On 26 April 2019 Stuff published an article reporting the facts regarding a successful defamation proceeding taken against a different Brian Ashby, which had resulted from posts he made on Facebook regarding a former president of the Canterbury Mini Motocross Club.

The Complaint

[2] Brian Ashby (“the complainant”) notes that the subject of the story shares both his first and surnames. He complains that no effort was made in the article to provide further identifying particulars regarding the person who was the subject of the article (“the subject”) (for example, by mentioning the profession of that individual). In the complainant’s view, the problem arises because he is a longstanding sports journalist with a national profile. He considers that he has become unfairly connected with the story as he has an association with sports and people have assumed that he is the subject of the story. The complainant states that he has been approached by a large number of people asking him about the report and that this has impacted on him professionally (by impacting on his credibility) and that it has also created difficulties for his family.

[3] The complainant considers that Media Council principle 1 (Accuracy, Fairness and Balance); principle 2 (Privacy); principle 4 (Comment and Fact); and principle 12 (Corrections) have been breached.

The Response

[4] The editor’s position is that it is common for members of the public to share names with those involved in court cases and that Stuff included all of the available and relevant detail in the story. Any further steps would not have been either practical or reasonable.

[5] The standard practice for court reporting is to report available relevant identifying details from the case to help distinguish the person involved from unrelated parties who share the same name. These details may include: full name, age, occupation, location of resident or a photo. The editor stresses, however, that they are limited by the information put before the court.In this case, the defamation decision did not contain details beyond what was included in the article.

[6] While the complainant suggests the subject’s occupation ought to have been mentioned, this was not information that Stuff had. However, the report does identify that the subject was involved with motocross and racing, which the editor appears to suggest may be enough to distinguish the subject from the complainant; who he describes as being involved in sports broadcasting.

[7] Although technically possible to add a footnote indicating that the subject is not the complainant, the editor considers this would set a dangerous precedent, arguing that it is not practical or reasonable for Stuff to expressly exclude members of the public who coincidentally share the same name. Current practice is to identify people in court cases by ruling them “in” by reporting relevant identifying detail. It would not be feasible to change to a practice of ruling members of the public “out” by expressly stating they were not involved. This would suffer from a range of problems, including knowing which stories members of the public may want to distance themselves from. This may lead to difficult decisions about when to specify that a particular person is not the subject of a story. Further problems include whether lists of all people with the same name need to be kept, or whether prominent people deserve special treatment.

[8] The editor expressly sympathises with the complainant but considers Stuff acted reasonably, responsibly and in line with industry practice.

The Decision

[9] The Council acknowledges the difficulties faced by people in Mr Ashby’s position. However, the Council does not consider that there is a general duty on media outlets, when reporting on cases before the courts, to specially exclude people who coincidentally share a name with a person named in a court report, although it accepts that it is necessary to use all of the relevant details available from the case.In this story those details were referenced. The fact that the subject participates in motocross and the complainant is a sports journalist is a further unfortunate similarity, but there was no duty on Stuff to go beyond the material included in the court report. Nonetheless, the Council notes that once a person has drawn an editor’s attention to a shared name in some cases it may be appropriate to make a note to that effect in the online version of the article itself; to put in some detail which will differentiate the person named from others of the same name. For example, in the special circumstances of this case it may have been a useful gesture of good will for Stuff to put in an additional line similar to that used by Stuff in another article about the same subject (published on 4 August 2019) which adds a further descriptor: “Ashby, an American who goes by the nickname ‘Tex’”.

Overall, however, none of the Media Council principles noted by Mr Ashby are engaged: the story itself was fair, accurate and balanced; the complainant’s privacy was not breached; the story contained no ambiguity as to what was comment and what was fact; and there was no need for a correction as the story contained no errors.

The complaint was not upheld.

Media Council members considering this complaint were Hon Raynor Asher, Rosemary Barraclough, Liz Brown, Craig Cooper, Jo Cribb, Ben France-Hudson, Hank Schouten, Marie Shroff, Christina Tay, Tim Watkin and Tracy Watkins.