KEVIN HACKWELL AGAINST NEW ZEALAND HERALD

Case Number: 2955

Council Meeting: OCTOBER 2020

Verdict: Not Upheld

Publication: New Zealand Herald

Ruling Categories: Errors, Apology and Correction Sought

Overview

1. On Friday 31 July 2020, the Radio New Zealand (“RNZ”) website published an item headed,“Operation Burnham: Child killed, but death was justified, inquiry finds”.It concerned the report of the Commission of Inquiry into Operation Burnham. The article went on in the first sentence to state,A civilian child was killed during Operation Burnham in 2010, but an inquiry has found their death was justified under international law.”It goes on to show a video of the Attorney-General’s briefing about the inquiry. This is followed by further paragraphs outlining the contents of the Commission’s report. The article goes on to summarise other key findings of the report.

2. Copies of this headline and the article that followed were published withRNZ’s permission by Newsroom on 31 July 2020 which showed the heading,“Child death in army raid ‘justified’”, and by the New Zealand Herald (“theHerald”) on 31 July 2020. However, the Herald’s version of the article included the statement in the first sentence rather than the headline.

The Complaint

The Complaints

The inaccuracy

3. Kevin Hackwell has lodged complaints against these three publications. His basic complaint about the heading was that stating that the killing of an Afghan child was ‘justified’ under international law was an inaccurate and misleading statement, as the inquiry did not reach this conclusion. What the Commission found was that the death of the child happened in a raid that was, “justified and complied with international law and the rules of engagement.” The Commission report was about whether the military operation was justified under international law, and not whether the child’s death, which occurred in the course of the operation, was justified.

4. Mr Hackwell complains that to say the death of a ten-year-old child was legally justified during a military operation controlled by the New Zealand Defence Force was a serious misrepresentation of what the inquiry found. It gave the New Zealand public an incorrect impression about the outcome of a very important aspect of the inquiry. Mr Hackwell said that he could imagine that the misreporting would have been very upsetting for the child’s family and for others who were implicated by the mistakes that occurred during the operation.

The corrections

RNZ

5. On Friday 31 July 2020, Mr Hackwell telephoned the RNZ newsroom to inform its journalists that the statement that the inquiry had found that the death of the child was legally justified, made in its midday, 1.00pm and 2.00pm broadcasts, was inaccurate. Mr Hackwell acknowledges that this statement was then corrected inRNZ’s subsequent broadcasts. However, several days later he found that the statement was still incorrectly reported in the lengthy online article on theRNZ website.

6. On 6 August 2020, Mr Hackwell wrote an email to RNZ’s political reporter stating that the statement that the killing of an Afghan child during Operation Burnham was “justified under international law” remained inaccurately published online, in both the headline and the opening sentence of the article. This email also informedRNZ that the inaccuracy remained published in syndicated versions of the article on the websites of theHerald and Newsroom.

7. On 10 August 2020, RNZ made a correction to the opening statements of the report which thereafter read, “A child was killed during Operation Burnham in 2010, but an inquiry has found the operation that led to their death was justified under international law”. However, Mr Hackwell complains that while the opening sentences were corrected, the headline still referred to the killing of the child as having been justified. A week later, theRNZ headline had still not been corrected.

8. On Monday 17 August 2020, Mr Hackwell made a formal complaint toRNZ pointing out the retention of the incorrect headline. He claimed that it contravened four of the Media Council Principles:

Principle 1: Accuracy, Fairness and Balance

Principle 3: Children and Young People

Principle 6: Headlines and Captions

Principle 12: Corrections

The formal complaint was acknowledged byRNZ on Wednesday 19 August 2020, but a week later the headline of the article had still not been corrected.


9. Mr Hackwell emphasises a failure to correct on behalf of RNZ. He alleges thatRNZ failed to correct their online story on 31 July 2020 when it was first informed of the error by telephone. He also complains thatRNZ failed to act promptly to inform the Herald and Newsroom that the original article was inaccurate and therefore had been corrected, and that the other media organisations should follow suit .

Newsroom and New Zealand Herald

10. The article had been shared and published online by theNewsroom and the Herald. When the opening line of the RNZ online article was corrected on 10 August 2020, Mr Hackwell checked theNewsroom and the Herald websites to see whether the reprinted articles had been similarly corrected. They had not. He wrote to the editors of theHerald and Newsroom on 12 and 13 August 2020 respectively, to inform of the accuracy error in their reprinted online articles despite the factRNZ had by this time acknowledged the error by correcting the original article. Those publications were asked to make similar corrections to that ofRNZ to the versions of the articles that appeared on their websites.

11. A week later on Tuesday 18 August, those versions of the article had not been corrected and on that date Mr Hackwell made formal complaints toNewsroom and the Herald. Both the Herald and Newsroom acknowledged receipt of the formal complaints on this date. However, a week later the articles were still not corrected byNewsroom or the Herald.

12. Mr Hackwell asserts that both Newsroom and the Herald failed to act promptly to correct the reprintedRNZ article, despite written complaints on 12 and 13 August 2020, followed by formal complaints on 18 August 2020. The corrections were not made until 28 August 2020.

13. Mr Hackwell believes that neither of the actions of Newsroom or theHerald nullified the complaint, and inadequate steps were taken to fix the error.

The Response

The Response of RNZ

14. RNZ, in its response to the Media Council of 8 October 2020, acknowledged that it could have handled Mr Hackwell’s complaint better and in a timelier manner.RNZ ultimately did move to correct the online copy and advised its media partners of the corrections required.RNZ asserts that the handling of Mr Hackwell’s complaint was compounded by the pressures of dealing with coverage of the pandemic, and its lifeline utility obligations.

15. It is noted by RNZ that for the average reader of the article, whether the formal inquiry found that the operation that led to the death of the child was ‘justified’, or whether the inquiry found that the child’s death was ‘justified’ is a somewhat fine distinction. For those who were following the inquiry closely, that level of detail may have been important, but the distinction remained nevertheless not so obvious. Other findings in the report were adequately reported. The majority of the detail in the article was not at issue.

The Response of Newsroom

16. Newsroom relies on the fact that it had been sent the story byRNZ and published it verbatim. It received a complaint from Mr Hackwell on 13 August 2020 but did not correct the article immediately. Its practice is to await an investigation by the supplier of the news article, in this caseRNZ, and a decision by that entity on what action needed to be taken. It is up to the originator of the story to deal with the complaints and to advise of any changes. WhenNewsroom was advised by RNZ of the changes on 28 August 2020 those changes were implemented.

The Response of the New Zealand Herald

17. The Herald says that when it receives complaints about syndicated stories, its procedure is to direct the complainant to the newsroom who originally published the story. In this case, this was unnecessary because Mr Hackwell had already contacted RNZ on a number of occasions. It is stated that RNZ is usually very quick in emailing the content partners on any corrections or changes needed to a syndicated story. TheHerald took the view that RNZ was still considering Mr Hackwell’s complaint which related to a lengthy and complex report. TheHerald claims its interaction with Mr Hackwell was initially delayed because he sent an email to its Premium newsletter service on 12 August 2020.

18. Once Mr Hackwell had contacted the Herald directly with a formal complaint on 18 August 2020, this was promptly acknowledged. TheHerald was in a difficult position because it could not be sure whether Mr Hackwell’s concerns were accurate. Therefore, theHerald opted to deactivate its version of the article in response to Mr Hackwell’s complaint. TheHerald noted that RNZ had subsequently made changes to its version and emailed the required changes to its content partners. However, since this was after the article had been removed, no further action was taken.


The Decision

Was there an inaccuracy in the headline and the first sentence?

19. The report stated that it is likely a female (clearly civilian) child aged between 8-10 years was killed during Operation Burnham (evidenced from video footage of a child’s funeral after the operation and witness accounts), but that the child’s precise age and identity remained unclear. Despite her death, the Commission found there were “legitimate reasons for the military operation”, and personnel had “a proper basis for clearing the engagement”. It could not have been known, from the information held at that time, that civilians were in proximity of the target. There were no specific findings or discussion about the circumstances surrounding her death (i.e. times, location etc.).

20. The statement, “child killed, but death was justified” has a plain meaning. That meaning is that the killing of a specific child was justified. The first sentence of the article published in theRNZ article amplifies this by saying that the death of the child was justified “under international law”.

21. To paraphrase, it is stating that a child had been killed in the course of the military operation, and that the death of the child was justified by law. This was plainly an incorrect summary of the finding in the report. It is clear from the report that the exact circumstances and indeed the identity and age of the child killed in Operation Burnham are uncertain.

22. The Commission did not make findings about the actual circumstances of her death. Rather, the issue traversed was whether the operation in which the child died was legally justified. The finding was that it was legally justified.

23. The difference between the two propositions is significant and not, in our view, a fine point. The implication of the headline stating that the child’s killing was justified could be that the child was in some way involved in an action that warranted a military response. The implication is that the specific act of killing the particular child was justified. That is clearly not the finding of the Commission. As we have said, the actual finding of the Commission was that a child had died in the operation in circumstances that could not be precisely established, but the operation itself was properly authorised and it could not be known that civilians were in proximity of the target.

24. We therefore are of the view that the headline and first sentence of the RNZ article were materially inaccurate.

25. We do not consider that the principle relating to the protection of children is invoked, because the child was in the end not identified either in the report or the article. We do not consider that the provision protecting children extends to a general reference to the death of an unknown and unidentified child. The fact that the misleading statement was about a child does not warrant the application of Principle 3.

26. We do not think that the headline Principle 6 has been breached, in that the inaccuracy was both in the headline and the body of the article itself (in the first sentence). Therefore, it cannot be said that the headline did not accurately and fairly convey the substance of a key element of the article. The problem was that the article itself was inaccurate in relation to the killing of the child.

27. We therefore limit our uphold to a breach of the accuracy requirement in Principle 1. The headline and first sentence of theRNZ article were inaccurate.

Were the acts of correction by RNZ adequate?

28. RNZ despite being first informed of the error on 31 July 2020 by telephone, did not correct the headline or opening sentence. Nor did it correct them on receiving a written complaint on 6 August 2020. A few days later, on 10 August 2020,RNZ changed the sentence but, for some reason that is unclear, the headline was not changed. It would seem that on receiving the further email complaint on 17 August 2020, the correction to the headline was made, although we are not clear on the exact day. We assume that the article was fully corrected by at the latest 28 August 2020, when notification of the error was given toNewsroom and the Herald.

29. We do not consider that the steps taken by RNZ were sufficient to ameliorate the complaint.RNZ took no steps to correct the online story when it was first informed of the mistake by telephone on the day of publication on Friday 31 July 2020. While steps were taken later, the online story remained the same for a considerable time.

30. It also appears that no immediate steps were taken by RNZ to pass on the error to the other two publications against which complaints had been made, theHerald and Newsroom. This was done several weeks later on 28 August 2020. This delay was a further mistake byRNZ.

31. It may have been that, given that the report was lengthy and the issues not straightforward, a prompt correction byRNZ would have led to this complaint not being upheld, given the lack of any immediate impact on any person. However, while we accept thatRNZ may have been under considerable pressure at the time because of various events over which it had no control, there is no excuse for the delay of over three weeks that occurred.

32. We therefore uphold the complaint against RNZ under Principle 12, the Corrections Principle, for the reasons given.

Newsroom

33. It would seem that Newsroom took no action until Friday 28 August 2020, when it received notification fromRNZ about the required corrections to the headline and opening sentence. The amended heading was to read, “Operation Burnham: decisions that led to child’s death justified, inquiry finds” and for the note at the end to read, “An earlier version of this story stated that the three men were identified as insurgents, as had been claimed by Attorney-General David Parker in a briefing. This was not a finding of the inquiry, however. It also stated that the inquiry found the child’s death was justified. The inquiry in fact found that the operation that led to the death of the child was justified, and the copy has now been updated”.Newsroom then altered the headline and published a note to that effect.

34. Newsroom undoubtedly published the misleading headline expressing it, as we have set out, in a slightly different way. This version of the article also contained the inaccurate first sentence that was present in theRNZ article.

35. Newsroom received written complaints about the inaccuracy from Mr Hackwell on 13 August 2020 and 18 August 2020. It took no action at that stage. However, when it received an email fromRNZ on 28 August 2020 asking for the headline and first sentence to be corrected, it did so immediately. Therefore, the question is whether the delay between receiving the initial complaint on 13 August 2020 but refraining from acting until direction was received from RNZ on 28 August 2020, should mean that the complaint is upheld.


36. On balance, we have decided that we do not uphold this complaint against Newsroom. We would not wish to be thought of as excusing news organisations which are notified of an error in a story that has been prepared by another news organisation and which they are publishing, from carrying out their own investigation in appropriate cases and acting on their own initiative. However, in the circumstances of this publication byNewsroom, we do not uphold. The article was shown as originating from RNZ. There was no glaring error in the headline and first sentence.Newsroom had received the article from a respected source, RNZ, and was entitled in the absence of any obvious mistake on the article, to wait until it heard fromRNZ.

37. It may have been desirable for Newsroom to have immediately contactedRNZ and required a prompt response, after receiving what appeared to be a considered and careful complaint, rather than letting time go by. Indeed, in our view it is good practice when a complaint is made to a publisher about the content of an article supplied by another publisher, that the downstream publisher contact the original publisher of the material and make it clear that they have received a complaint and require advice as to the steps they should take, if any, to correct the article. However, such a practice is not set out in the Media Council Principles at this stage, and in the circumstances of this complaint, where the correction was not a matter of grave urgency, an uphold of the complaint is not warranted.

38. When RNZ did notify Newsroom of the error on 28 August 2020, the correction was immediately made byNewsroom. It published the full retraction as requested by RNZ, acknowledging the error in the earlier version. This was a commendably full and prompt reaction.

39. The complaint against Newsroom is not upheld.

New Zealand Herald

40. The Herald received complaints from Mr Hackwell on 12 August 2020 and 18 August 2020 about the article. The original complaint was sent to the wrong address. It would seem that theHerald, on receiving the complaint from Mr Hackwell on 18 August 2020, deactivated the article.

41. We accept the Herald’s statement that their interaction with Mr Hackwell was delayed because Mr Hackwell’s email was sent to its Premium newsletter service, clearly the wrong address. The article was taken down promptly on receiving Mr Hackwell’s correctly addressed complaint. In addition, for the same reasons set out in relation toNewsroom, the Herald is not to be condemned for deciding to await advice fromRNZ, a respected media source, in the absence of any obvious error.

42. We do not consider that the Herald can be fairly criticised for taking down the article rather than amending it. At that early point it had not heard fromRNZ and did not know all the facts, and by taking the story down it immediately limited any damage that was being done. It was not obliged then to reactivate the article to show a corrected version, which would be unlikely to have a discernible ameliorating affect given that by then it had been showing no story for over a week.

43. In all the circumstances, we do not uphold the complaint against the Herald.

Result

44. The complaint against RNZ is upheld. The complaints againstNewsroom and the New Zealand Herald are not upheld.

Media Council members considering the complaint were Hon Raynor Asher (Chair), Rosemary Barraclough, Katrina Bennett, Liz Brown, Craig Cooper, Jo Cribb, Ben France-Hudson, Hank Schouten, Marie Shroff, Christina Tay and Tim Watkin.

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