OTOROHANGA COLLEGE AGAINST WAITOMO NEWS

Case Number: 2900

Council Meeting: MAY 2020

Verdict: Not Upheld

Publication: Waitomo News

Ruling Categories: Accuracy
Balance, Lack Of
Comment and Fact
Confidentiality
Court Reporting
Privacy
Schools, Identification of
Unfair Coverage

Overview

1. The Principal and the Chair of the Board of Trustees of Otorohanga College complain on behalf of the college about an article headedBullying allegation at Oto College and published by the Waitomo News on December 19, 2019. They consider the article breached Principles 1 (Accuracy fairness and balance), 2 (Privacy), 4 (Comment and fact), and 8 (Confidentiality) of the Media Council principles.

2. The Media Council does not uphold the complaint.

Background

3. Most of the article in question was a report of an interview with Allan Halse, described as an anti-bullying advocate, who was acting for a teacher at the college. It appears to have been prompted by an item on the Facebook page of Culturesafe, an organisation associated with Mr Halse. Both the Facebook item and the article make a number of allegations of bullying at the college, both about bullying of, and lack of support for, Mr Halse’s client and about a general bullying culture.

4. The article concluded by saying that the Waitomo News reporter had contacted the chair of the board of trustees about the issue by phone and by email.She had also requested the school’s bullying policy and intervention plans, but they had not been supplied and were not available from the school’s website. The final sentence in the article was “The college has declined to comment.”

5. On the morning of December 18, 2019, Andrea Twaddle, a lawyer acting for the college, wrote to theWaitomo News, responding in some detail to the email and phone call. She also asked theWaitomo News to delay publication of any material on the issues until court proceedings had been concluded. The penultimate paragraph of the letter reads “Any attempt to publish the content of this letter will . . . be a breach of the rights of the College and its personnel, for which it may pursue any and all available legal remedies.”

6. In the early afternoon of December 18 there appears to have been an unsuccessful attempt by the editor of theWaitomo News to contact Ms Twaddle by phone and an equally unsuccessful attempt by Ms Twaddle to return the call. Ms Twaddle then sent an email addressed to the editor and to the reporter inviting phone contact and reiterating that the letter was “provided in strict confidence to you, and is not for publication, neither is the content.” She followed up with a number of texts and calls that were not returned.

7. There has been some dispute about the timeframe of the Waitomo News response to the complaint. As there is no prejudice to the complainant, the Media Council does not propose to address this issue.

The Complaint

8. The College complains under Principle 1 both about the content of the article and about the process leading to its publication. As to the content of the article, it says

  • Describing the teacher as “allegedly sacked” gives a misleading impression of the employment process
  • It is incorrect to say the college declined to comment
  • Saying that the policies were not available from the school’s website was misleading. Policies had been available online until shortly before publication of the article but had been removed when the website was limited for reconstruction.
  • Details about claims made by the advocate about the staff member were inaccurate, but for legal reasons the college was unable to provide details.

9. As to the process, the college says

  • Multiple requests not to publish the article were ignored. Emails and phone calls received no response.
  • It was unreasonable to request a response (with supporting documentation) by 11.30 am on December 18. This gave only three working hours to respond, at a time when the school had closed for the year and no staff were on site. The demand was made to the Chair outside working hours. There was no reasonable opportunity to access necessary information such as policies held on site.
  • The reporter told the Chair that the article would be published the following day, regardless of any response from the College.
  • The allegation of bullying against Mr Matthews, the Board’s Limited Statutory Manager, was made only on social media and to theWaitomo News, not to Mr Matthews.

10. Under Principle 2, the college says the article compromised the privacy of individuals associated with the school. Privacy was breached because of the association of staff with the teacher, who at the time was still an employee of the college.

11. Under Principle 4, the college says there was no clear distinction between fact and opinion. There are no material facts to support the claim that the teacher was bullied by students, and the allegation against Mr Matthews was made by social media only.

12. Under Principle 8, the Waitomo News failed to ensure that its sources were making reliable comments. The article breached confidentiality on a matter that was yet to be determined and did not allow the employment dispute to proceed confidentially and discreetlywith respect for all parties.

The Response

13. Kylee Jacobsen of Jacobsen + Co, lawyers, responded on behalf of the Waitomo News. She denied that the article was inaccurate in any way.Specifically, she said that the word “sacked” was generally seen as synonymous with “dismissed”, that the contents of Ms Twaddle’s letter were such that “our client was forced to state in the article that you had declined to comment”, and that a search of the college website on December 16 had failed to find either any policy on bullying or any indication that the website was under construction. The policy had also been requested during the telephone conversation with the Chair on 17 December and the request was repeated in the email of the same day. The policy has still not been supplied.

14. As to the process before publication, the reporter telephoned the Chair on 17 December and asked for comment on the proposed article. This was sufficient time for comment. There was some possibility of an extension of time, but after email correspondence and the letter from Ms Twaddle, it was clear that nothing would be achieved by a further extension.

15. There was no breach of privacy. The article contained no identifying information other than that of the Limited Statutory Manager, and that was a direct result of the interview with Allan Halse. Similarly there was no breach of Principle 4. The article was based on the interview with Mr Halse and the teacher and is an accurate and factual account of her beliefs and feelings.

16. On confidentiality, Ms Jacobsen notes that the college had an opportunity to comment on the material provided by Mr Halse and the teacher and says “Our client disagrees that your failure to provide a comment to be published makes the information provided by Allan Halse and the teacher in question unreliable.”

17. There is a public interest in the publication of the material, given the history of allegations of bullying. All private and legal information was removed from the article before publication

The Decision

18. The Media Council has some concern that some of the background events that gave rise to this complaint are apparently also the subject of legal proceedings. It has no knowledge of the content of those proceedings and does not intend to discuss them in any way. Its concern is with journalistic practice. In addition, the College has referred to earlier material published by theWaitomo News and to what it sees as a failure to publish positive stories about the college. The Council does not propose to comment either on the earlier stories, given that no complaint was lodged at the time of publication, or on general decisions made in the editor’s discretion about the content of the publication.

Principle 1 – Accuracy, fairness and balance

19. A large part of the complaint is expressed as concern about accuracy and fairness.In the view of the Media Council, the main issue is fairness. As to accuracy, it is noted that the article consists almost entirely of direct and indirect quotations from the interview with Mr Halse and reflects to some extent the content published on the Culturesafe website. There is no suggestion that Mr Halse was inaccurately reported, and the Media Council can find no inaccuracies in the remainder of the article.

20. The Media Council agrees that “sacked” is essentially synonymous with “dismissed” and does not necessarily imply unfair process.

21. It seems all parties are agreed that the college’s bullying policy was not available on its website at the relevant time and was not supplied in response to the request to the Chair.

22. The Media Council cannot comment on the alleged inaccuracies in the claims made by Mr Halse both because the college feels unable to supply details of the inaccuracies and also because any inaccuracies are Mr Halse’s and not attributable to theWaitomo News. It is also accurate to say that the college declined to comment (or at least to comment publicly), though this aspect of the complaint is considered further below.

23. There are two main questions to consider under the heading of fairness – whether the college and its representatives were given a reasonable opportunity to comment on the proposed article and whether their response (or lack of response) was fairly represented in the article. It is apparent from the correspondence, and the Media Council considers it relevant, that allegations of bullying at the college have been around for some time and that as a result of publicity about them, the relationship between theWaitomo News and the College is not a comfortable one.

24. It appears that the first contact between the reporter and the college was the telephone call with the chair of the board of trustees on the evening of Tuesday, December 17 and that it was followed by an email to her.No record of the call has been supplied, nor has a copy of the email, but it seems clear that comment was requested on the proposed article, that the chair’s attention was drawn to the item on the Culturesafe website, that the reporter also requested a copy of the relevant policy documents, and that a deadline of 11.30 am the following day was mentioned.

25. The college submits that the response time, which it characterises as three working hours, was inadequate, given that the school year had ended, it was the evening, and there was insufficient time to access necessary information, such as policy documents held at the school. Nonetheless, through its lawyer, the college did supply a detailed response within the requested time frame. While the response did not include the material requested by the Waitomo News and amounted to a request not to publish the article, there is no reason to believe that a response for publication could not have been prepared within the same time frame.

26. The college says it is unfair and inaccurate to say that it had declined to comment on the claims made by Mr Halse. Ms Twaddle made it very clear that her letter and its contents were confidential and not for publication. While she did not specifically say that the existence of the letter was also to be kept confidential, it is difficult to see how an acknowledgement of its existence would have added anything of significance to the story. In the context of a news story, there is no significant difference between a refusal to comment and a refusal to comment for publication.

27. The college has not specifically said that its complaint extends to the Waitomo News’ decision to proceed with publication against the wishes of the college and without its comment on the story, but this is implicit in the complaint. It would have been wise for the editor to proceed with caution, given the history of its source, Mr Halse, and the pending legal proceedings, and it is unfortunate that there was no response to Ms Twaddle’s attempts to make contact after sending her letter. However there was no obligation to comply with the request, and the Media Council has already found that the college was given a reasonable opportunity to comment. In this context the decision to publish was a legitimate exercise of the editor’s discretion.

Principle 2 - Privacy

28. The Media Council does not find that the article breached the privacy of any individual. The college complains that there was an effect on the privacy of individuals associated with the college, but there is no mention in the article of any such individual apart from Mr Matthews and the unnamed teacher at the centre of the allegations. The allegations against Mr Matthews had already been made public, and there is no suggestion that the teacher did not consent to the publication of the information about her. If there was any breach of privacy, it was on the part of Mr Halse, not the Waitomo News.

Principle 4 – Comment and fact

29. As noted above, the article consists almost entirely of direct or indirect quotations from the interview with Mr Halse. The statements are not endorsed as fact by the reporter and are clearly Mr Halse’s opinion. The few remaining paragraphs are statements of fact, and while there may be concerns about their accuracy or fairness, they are not statements of opinion, nor do they present as opinion disguised as fact.

Principle 8 - Confidentiality

30. The confidentiality principle is concerned with the reliability of confidential sources and the protection of their identity. In this case the main source of the contested material is Mr Halse, whose identity has not been kept confidential.

Decision

31. The Media Council does not uphold the complaints.

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