BRIDIE ROSE O’LEARY AGAINST OTAGO DAILYTIMES

Case Number: 2799

Verdict: UPHELD WITH DISSENT (7:4) ON PRINCIPLE 11 - Photographs and Graphics

Introduction 

  1. On June 19, 2019 Otago Daily Times published an account of the court appearance of Anita Cumming.The report was accompanied by a photograph of a clearly distressed Ms Cumming as she sat in the dock. Ms Cumming, who has obsessive-compulsive disorder, was sentenced to one year’s jail for breaching a protection order protecting her mother.
  2. Under a copy-sharing arrangement the same article and photograph were published on the RNZ website and Facebook page and the New Zealand Herald website [and Newstalk ZB Facebook page.]
  3. The story was variously headlined Jail for abuse of mother, Woman jailed for abuse of mother and Dunedin woman jailed for ongoing abuse of her mother.
  4. The Media Council received complaints from Alison Blair (sister of Anita Cumming), Bridie-Rose O’Leary and Jonathan Moss.Ms Blair’s complaint included a letter of support by Hon Clare Curran, MP for Dunedin South who is “advocating for Anita as her Dunedin member of parliament”.
  5. All three complaints echoed Ms Curran’s concern that “in choosing to publish this particular photograph, the ODT was amplifying the stigma of ridicule and abuse by those who suffer from mental illness. I was and remain shocked and distressed at the decision to publish this photograph at all.”
  6. A small sample of some of the Facebook comments was included Ms Blair’s complaint which demonstrated judgement and ridicule of Ms Cumming, with the odd comment calling for reasonableness from the audience.
  7. Across all the separate complaints reference has been made to a number of NZ Media Council Principles: Accuracy, Fairness and Balance (Principle 1), Privacy (Principle 2), Headlines and Captions (Principle 6), Discrimination and Diversity (Principle 7) and Photographs and Graphics (Principle 11).

The Complaints

Principle 1 Accuracy Fairness and Balance

  1. Ms Blair said the “language used in the article was an exaggeration of what actually occurred in court” and that the use of the “inaccurate, hyperbolic language that was used to describe the events, combined with a hyper-emotional photograph, depicted Ms Cumming in a way that further stigmatises her for her mental illness.”An example of the language that Ms Blair refers to is the description that Ms Cumming “howled throughout the sentencing hearing” and the court was told Ms Cumming would “scream” at her mother.This combined with a lack of balance by not obtaining “the full facts regarding Ms Cumming’s extremely poor experience with Dunedin’s mental health services, and the reasons for her court appearance and subsequent conviction is a breach of Principle 1, with a lack of fairness, accuracy and balance.”
  2. Ms O’Leary commented on the changes made to the article which fall under Principle 1 (Accuracy), “The article has been edited many times since and I appreciate that the effort has been made for a more accurate version of events now with the much-needed context around it, but it does not undo the damage incurred in the meantime.”

Principle 2 Privacy

  1. Ms Blair maintained the photograph breached NZ Media Council Principle 2 (Privacy). She highlighted the provision within Principle 2 that states, ‘Those suffering from trauma or grief call for special consideration.’What the article did not cover was that “both parties were already experiencing significant trauma and grief due to Ms Cumming’s mental illness, and the courtroom experience was a cause of great fear and distress, which is clearly seen in the photograph.Additionally, the family had recently experienced the death of a significant family member, which was made known to the court previously.” Ms Blair also referred to the loss of privacy for Ms Cumming’s mother who is referred to in the article, “Ms Cumming’s mother, who was referred to extensively in the reporting, has also experienced emotional harm and a loss of privacy as a result of both the original published article, and the nationwide reporting of the story in the New Zealand Herald and on the Radio New Zealand website”.
  2. Ms O’Leary argued “No one is immune from mental health and when someone is battling with it they deserve privacy and help.It is appalling that the ODT would choose to participate in a very public teardown of someone mentally unwell.I couldn’t believe it and a lot of others online couldn’t either.”
  3. Mr Moss focussed on the ‘public interest’ provision enshrined within Principle 2. “My original complaint is that the story was not in the public interest but was simply in the interest of the public and serves nothing more than click bait of a distressed human being in a helpless state in the ‘care’ of the state.Public interest seems to me to be often a low bar and not difficult to meet or argue.I submit that in this case it was simply not met.The initial story and image of this distressed human being has no place in a public forum.”

Principle 6 Headlines and captions

  1. Ms O’Leary referred to the change of headline for the article, “I understand that [the] headline has changed three times to be more ‘sympathetic’ to the accused.”NZ Media Council Principle 6 states that ‘Headlines should accurately and fairly convey the substance or a key element of the report.’

Principle 7 – Discrimination

  1. Ms Blair has suggested that there has been gratuitous emphasis on two subjects: mental disability and physical disability. In Ms Blair’s opinion, there has been gratuitous emphasis placed on Ms Cumming’s mental disability, “…due to the full facts of Ms Cumming’s situation not being sought, the reportage of her OCD was not clearly or accurately linked with the reasons why she was in court, and was instead reported gratuitously.This is a breach of Principle 7 in regard to there being a “gratuitous emphasis” on her mental illness.
  2. Ms O’Leary also highlighted ‘mental disability’ in her complaint.
  3. Mr Moss concurs with the aforementioned remarks, “This is clearly discriminatory against a woman suffering obvious mental illness and anguish.Again, the image is unnecessary and gratuitous.”

Principle 11 Photographs and Graphics

  1. The provision within Principle 11 that Ms Blair has specifically referred to says, ‘Photographs showing distressing or shocking situations should be handled with special consideration for those affected.’This had not occurred - “No such special consideration was demonstrated for either Ms Cumming or her mother.”By way of final comment, Ms Blair discussed the impact of including the photograph, “The fact remains that the ODT have caused serious psychological trauma to the people involved, perhaps most of all our mother.”
  2. Mr Moss shares the same view, “The image is distressing and traumatic and takes no account of any special consideration.”
  3. Ms O’Leary has offered her opinion by saying, “The ODT did demonise [Anita Cumming] with that photo.”
  4. Ms Blair laid separate complaints with RNZ and the NZ Herald.“Sharing the ODT court news coverage of the Anita Cumming story (19/06/19) is downright irresponsible and dangerous.This is a vulnerable person with significant distress, and [your newspaper/organisation] is shaming and stigmatising her situation, not to mention her mother who is mentioned excessively in the story.The photograph being used – which you have featured extremely prominently adds further insult to injury and amounts to bullying.” Ms Blair requested that the “photograph and original story be removed and replaced with a more considered and compassionate discussion around the poor standard of mental health services in Dunedin.There should also be an unreserved apology made for the harm done to everyone involved.”
  5. Ms Blair’s complaint extends to the use of the social media pages for each organisation, “Beyond publication of the article itself, the story has also been shared widely on social media, attracting emotionally damaging comments from members of the public who do not know the full facts, and it has been repeated by tabloid websites in the UK and beyond.”Ms Blair listed the four international tabloids that had picked up the story, “To state that the story isn’t sensationalised is at odds with the fact that the story was reprinted by several sensationalist tabloids.”
  6. In further comments Ms Blair again highlights the effect of the story being shared on social media, “One of the worst things apart from the published articles themselves is the social media coverage.The ODT, RNZ and Newstalk ZB all chose to share the story on their Facebook pages, which has now spread the item all over Facebook and drawn attention from as far as Washington.”
  7. A final comment from Ms Blair addresses the in-court media application, “While the courts may have allowed the media coverage [to] take place, all of the involved media outlets…had the choice as to whether or not to publish the material.” While acknowledging the application had been granted she wonders if the judge would consider that “…media themselves would choose to select such an emotionally damaging image to accompany the court news.As … stated elsewhere, RNZ, the ODT and the NZ Herald all made editorial decisions that affected how Anita and her mother were depicted.The result of that has been serious, ongoing emotional and psychological harm to these already vulnerable people.”
  8. Ms O’Leary would like to see the ODT “apologise to Ms Cumming, her family, and the readers of their newspapers and online articles.They need to take mental health issues seriously and [report] it accurately, fairly and with respect.Mental health is not a source of ‘entertainment’, it’s a serious issue.People with mental health needs should feel supported by their communities in times of need and not alienated and sensationalised.”

The Responses

  1. Barry Stewart, editor ODT, highlighted the court sanctioned application to report on this matter, “Crucially the ODT filed an in-court media application months in advance of the sentencing hearing, which is perused by the judge and defence counsel.The judge, having no doubt measured Ms Cumming’s wellbeing against the need for deterrence, denunciation and personal responsibility, granted the application.”
  2. The NZ Herald also commented on this, “In this case, a judge decided the proceedings could be covered by media and also approved media photo applications.”

Principle 1 Accuracy Fairness and Balance

  1. Mr Stewart says “The language used in the article was not an exaggeration of what happened” as “Ms Cumming was screaming at her mother for help as she was removed from the courtroom after the judge deemed it impossible to continue with sentencing. This was not inaccurate or hyperbolic.”
  2. In relation to balance the Oskar Alley, Senior Newsroom Editor for the Herald, noted “The Herald’s republication of this article featured links to mental health services, in accordance with our newsroom’s protocols for reporting mental health matters.”
  3. He also noted “As the Media Council has regularly ruled, balance can be achieved on a number of articles rather than a single report.” Mr Alley refers to the inclusion of additional articles in the days that followed the original article which is the basis for this complaint and concludes “[These] are hardly the actions of a media outlet that Ms Blair claims set out to traumatise and humiliate a person suffering a mental health issue.
  4. RNZ is satisfied that the details of the case were reported accurately and fairly in that all of the details, particularly regarding her offending, were published in a matter of fact manner.

Principle 2 Privacy

  1. Mr Alley notes “Anita’s sentencing took place in open court and we consider this case to be of significant public interest, as does the ODT and RNZ.”
  2. Regarding the provision that ‘those suffering from trauma or grief call for special consideration’ Mr Alley notes “It’s not in dispute that Anita found the court sentencing process upsetting…The reality is a mental health issue is not an automatic shield from media coverage of a criminal matter in a courtroom. Anita may have found the court sentencing process traumatic, but it is also true that this is a direct consequence of her own criminal actions.”
  3. RNZ responded “There is a legitimate public interest in knowing that these incidents occur and how Ms Cumming was treated in the justice system, however …there is less justification in any prurient interest in delving into the graphic details of how the offending actually occurred for example.” “What we reported, including the photograph, all occurred in open court, so no issues of privacy arise on this occasion.” Further they state “RNZ observes that at no point in the court trial or sentencing were any suppression orders sought [by counsel] or given by the presiding judge.”

Principle 7 Discrimination

  1. Mr Stewart has explained, “Our intention was not to discriminate against or marginalise Ms Cumming because of her ‘mental disability’.The story the following day, which canvassed the views of the defendant’s mother highlighted the alleged failings and drawbacks of the mental-health system, coupled with the justice system.This is surely a salient issue to bring to light and one of prominent public interest.”
  2. Mr Alley has highlighted the provision enshrined in Principle 7, “the fact that issues of mental disability are a legitimate subject for discussion when relevant and in the public interest.”He noted the Government’s financial commitment to supporting mental health services by earmarking “a massive $1.9b of spending in this area.”In light of this, Mr Alley has said “This places the issue of mental health treatment firmly in the public interest and Anita’s case has served to highlight the shortcomings in the justice and Corrections systems for offenders with mental health issues.”
  3. RNZ said in its view there was no gratuitous emphasis on disability.

Principle 11 Photographs

  1. In relation to publication of the photograph Mr Stewart noted “…while a snapshot in time, [the photograph] was indicative of her demeanour throughout the entire sentencing.This was certainly not one emotive frame to sensationalise the story.”
  2. RNZ noted “While the photograph shows an upset Ms Cumming, RNZ stands by using this image.It is a compelling portrayal of the circumstances that surround this case and gives the readers a ’sense’ of the difficulties faced by Ms Cumming and her family…”
  3. The NZ Herald responded “The photo of Anita Cumming in the dock is confronting.And while the accompanying court report accurately documents the hearing, we felt the image most truly represented what took place in that courtroom.The photograph informs the public in a way that words cannot.”
  4. “The decision to publish the ODT’s court photo of Anita was not taken lightly.The factors we considered included the fact that the sentencing judge had granted permission for the proceedings to be photographed – as part of this process Anita’s lawyer was advised of the request in advance and had the opportunity to object.”
  5. In a further comment Mr Stewart advised “…the ODT has received numerous emails, some of which have offered support for Ms Cumming once she is released from prison.It is clear her future accommodation (away from her mother) is going to be a vital part of her recovery.Already people are offering help in this area.”

The Decision

  1. The Media Council acknowledges that there were issues raised in this complaint that would fall within the category of ‘public interest’ and that require discussion, however, editors are to take the Council’s Principles into account as outlined below.

Principle 1 – Accuracy, Fairness and Balance

  1. Principle 1 calls for ‘publications to be bound at all times by accuracy, fairness and balance and should not deliberately mislead or misinform readers by commission or omission.’ Within the context of this complaint, particular care was required in reporting on and photographing a person who was suffering from a mental illness, as Ms Cumming clearly was. It is worth noting that suppression orders were not sought by Ms Cumming’s counsel or given by the presiding judge.In their response, the ODT described the article as a ‘factual and honest retelling of the sentencing hearing’. As this was a report of a court hearing the inclusion of descriptive language such as ‘howled’ and ‘repeatedly screamed at her mother’ was a reflection of what had occurred in the court on the day of reporting. The article also included direct quotes such as Ms Cumming pleading with the Judge “Please don’t do this, sir” and then pleading with the people present in the courtroom “Will someone help me?”. In the Council’s view this too was a relaying of the activity that was observed at Anita Cumming’s appearance in court.The Council acknowledges that the reporting of a court appearance is limited in how much detail can be included in an article. There is no breach of the requirement for accuracy, fairness and balance in the absence of the full facts regarding Ms Cumming’s experience with Dunedin’s mental health services, and the reasons for her court appearance and subsequent conviction, which were not included in the article.

Not upheld

Principle 2 – Privacy

  1. Privacy falls under NZ Media Council Principle 2, ‘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 interest.Those suffering from trauma or grief call for special consideration.’In deciding whether this Principle had been breached the Council considered the provisions of ‘significant matters of public interest’ as well as ‘those suffering from trauma or grief call for special consideration.’As the article was essentially the reporting of a court appearance by an individual the Council is guided by the provisions within Principle 2 which refer to the publication of a significant matter of public interest.The Council accepts that Ms Cumming could be deemed to have been suffering trauma and grief and therefore was entitled to special consideration, but this needs to be balanced against the reporting in an open system of justice of events in the public forum.In this case, in relation to the article, the Council considers the balance lies with the public interest. Ms Cumming’s counsel could have applied for a suppression order to help protect Ms Cumming’s privacy and the reporting of her sentencing in an open court.

Not upheld.

Principle 6 – Headlines and Captions

  1. Headlines and captions are provided for by NZ Media Council Principle 6.One of the complainants referred to the headline of the article changing three times.The Council is not able to easily verify this and there was not a great emphasis placed upon this particular point by the complainant therefore this particular breach can be set aside.For the sake of completeness, it is noted that in the Council’s view the headlines and captions did fulfil the requirements of Principle 6.

Not upheld

Principle 7 – Discrimination and Diversity:

  1. Principle 7 lists a range of subjects which are ‘legitimate subjects for discussion…where they are relevant and in the public interest’ and the two relevant subjects referred to in this complaint are: mental disability and physical disability.’The Principle cautions that ‘gratuitous emphasis must not be placed on any such category.’In the article there is discussion of mental disability, but the Council does not see that gratuitous emphasis is placed on it. In the Council’s view, the article sought to relay the behaviour exhibited throughout the court appearance by Ms Cumming which does not amount to gratuitous emphasis.
  2. The complaint by Ms Blair referred to Ms Cumming’s physical disability, pointing out specific examples such as Ms Cumming’s posture in the photograph, which she says limits Ms Cumming’s mobility.Again, in the Council’s view this does not amount to gratuitous emphasis.

Not upheld

Principle 11 – Photographs and Graphics

  1. Principle 11 reminds editors to ‘take care in photographic and image selection and treatment. Photographs showing distressing or shocking situations should be handled with special consideration for those affected.’ This photograph showed the distressing and shocking situation of a mentally ill person showing acute anguish and distress while in the dock in Court.
  2. The Council acknowledges that an application to the court allowing photographs to be taken had been granted. We note that the judge’s approval was given some months earlier. There appears to have been no opposition from Ms Cumming’s lawyer to photographs. There is nothing to indicate the judge specifically addressed the photographing of Ms Cumming, and he certainly does not appear to have considered the publication of this photo. The sentencing judge would have had no knowledge of which particular photograph would be published or how it would look.
  3. In selecting the photograph that accompanied the article in this complaint the newspaper had a duty to ensure that special consideration was extended to those affected. This was not any ordinary photograph but a photograph of a clearly out of control and vulnerable individual. Those affected by the article included but were not limited to Anita Cumming and her mother. Her mother was the victim, and sympathetic and supportive of her ill daughter. The Cumming family is distressed at the publication.
  4. The Council has taken into consideration the explanation offered by the ODT as to why the particular photograph was selected. The fact that there was permission to photograph does not remove the obligation of a newspaper to exercise care and discretion when showing a shocking situation as Principle 11 states. Newsworthiness and public interest in how mentally ill people end up in Court do not give a carte blanche. Special consideration ought to have been given to the effect on Ms Cumming, her family, and the shocking effect that the photographed anguish of a mentally ill person would have had. This photograph should not have been published.
  5. We do not accept that because there is public interest in an issue, it is acceptable to publish an arresting photograph, when it is so graphic and invasive, and shows a mentally ill person’s distress. There must always be a balance, a judgment exercised, when a photograph of a person in such a vulnerable state, is published. The balance here should have been seen as plainly against publication. The strong reactions of those who because of the photograph were hostile to Ms Cumming, and those who were shocked at the publication, both show how unusual it was to publish such a photograph. We do not see this as any justification for publication. To the contrary, the effect of such an arresting photograph on an ill and vulnerable person should have been considered, and seen as working strongly against publication.
  6. The complaint is upheld.

Upheld by the majority of Council members 7 : 4.*

Dissenting opinion

  1. Four members of the Media Council – Tim Watkin, Rosemary Barraclough, Tracy Watkins and Craig Cooper would not have upheld the complaint.
  2. Most of the industry members feel strongly that the photograph powerfully illustrates a serious and important, although traumatic, news story and it was appropriate to publish it. We fear the majority decision is a case of shooting the messenger.
  3. A journalist in court is the public’s eyes and ears in an important institution that frequently deals with difficult cases and humiliating events that often involve people with mental health issues. Yet transparency is fundamental to our justice system. It is a reporter’s job to report and, in this case, a photographer’s job to capture events, however they unfold.
  4. No doubt these events were traumatic for those involved, but they raised important wider issues in our court and mental health systems that have been prominent in news coverage this year. Reporting specific incidents like this is in undoubtedly the public interest and we believe the photo helps accurately tell that story.
  5. That this was a distressing image is entirely the point of the story. The photo captured a particular distressing moment that spoke to a wider, crucial issue.
  6. It’s vital to note this happened in open court and that local media described the decision to move the defendant to another room as unprecedented. This was an extreme event. The judge had considered a request to allow photography and had agreed. While that does not give media carte blanche, it is reasonable for them to take a lead from the court and the editors' responses showed the decision to publish was not taken lightly.
  7. Reporting and photographing distressing events is an uncomfortable but daily part of news reportage and a media organisation would not be doing its job if it attempted to make events appear less distressing or serious in retrospect, even when coverage is upsetting to those involved.
  8. *As this is a majority decision and there is a significant dissent, we will not direct that the photograph be removed. We will leave it to ODT, NZ Herald and RNZ to decide whether to take the photograph from their online record.

    We do however note that any further use of the photograph would also likely result in an uphold ruling from the Media Council, so the Council advises against any further publication.

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.