JEAN MCIVER AGAINST THE NEW ZEALAND HERALD

Case Number: 3323

Council Meeting: SEPTEMBER 2022

Decision: Not Upheld

Publication: Herald On Sunday

Principle: Photographs and Graphics
Corrections

Ruling Categories: Nudity and Indecency
Photographs
Privacy
Tragedies, Offensive Handling of

Overview

  1. The New Zealand Herald published a story on December 4, 2021, headlined: Remains found in Poland could be Kiwi World War II soldiers from Long Range Desert Group. Jean McIver complained that a photo of soldiers’ remains was a breach of Media Council Principle (11) Photographs and Graphics and that the Herald also breached Principle (12) Corrections. The complaint is not upheld.

The Article

  1. The story reported that skeletal remains of two World War II soldiers thought to be Kiwi prisoners of war had been found in Poland and that efforts were being made to identify the remains and find the soldiers’ families. A Polish newspaper reported that the remains were likely those of commandos in the Long Range Desert Group who carried out clandestine operation behind enemy lines. The article added that more information was being sought to identify the remains and have them interred by the Commonwealth War Graves Commission. 
  2. Three images were published with the story. The main image was a photo of Long Range Desert Group soldiers lined up in North Africa. A smaller photo showed two skeletons lying in their excavated grave, and the third showed a button found at the site.

The Complaint

  1. Jean McIver complained that the photo of the skeletal remains of someone’s brother, father or uncle had been published without thought of respect for relatives.
  2. “I was alerted to it when my cousin rang to ask if it was our uncle. She was distressed, as would anybody be, to open a paper and see what might be your relations’ remains.”
  3. Ms McIver contacted the Herald news desk the following day and received a prompt response from deputy editor Nadia Tolich saying: ”I am sorry to read that this story has caused you distress. I have removed the image from the online article.”
  4. Ms McIver was concerned there was no apology for publishing the photo. She then inquired what protocols the Herald had to ensure photos of human remains were never going to be published by NZME.
  5. “All I want is an apology and it would be nice to come from the editor and the reporter - and I want to know that this isn’t going to happen again. There are lots of NZ POW remains in Poland, Germany and Austria that are yet to be discovered. Nobody should open a newspaper to see their relations remains published.”
  6. She also asked for the Herald to adopt a policy to never publish images of the remains of any other New Zealander, whether those remains were in New Zealand or elsewhere or from Crimean War, World War I or II, Vietnam or later conflicts as it was disrespectful of the dead and showed no regard for living relatives.
  7. She also suggested the Media Council might include in its principles that no photograph of New Zealanders’ bodies or remains be published. It had not been done for a long time and she could not see any public reason to do so.

The Response

  1. There were three substantive responses from the NZ Herald. The first, referred to above, was a prompt apology to the initial complaint, when the NZ Herald apologised for causing distress and removed the image from the online article.
  2. Subsequently the NZ Herald’s Managing Editor Shayne Currie acknowledged the complainant’s position that publishing a photo of remains could be upsetting to relatives and apologised for the distress outlined. However, he said it was highly unlikely that a relative would recognise the skeletal remains, given the time that had passed.
  3. Mr Currie said the issue of photo selection was challenging, especially when it came to images of the deceased and “we take this responsibility seriously.”
  4. The media had grappled with issues of taste in relation to photographs since the invention of the camera. “From the Hindenburg disaster to images of WWII holocaust mass graves, to a naked Vietnamese girl scorched by napalm, to a person jumping from the World Trade Centre on 9/11 – the challenge is to document and shine a light on what has happened, while considering the personal dignity of the subjects and their families.”
  5. He noted that Ms McIver’s was the only complaint received on the Polish skeletons photo and added that the passage of time was a factor in deciding when an image lost its offensiveness.
  6. He assured Ms McIver that the Herald would improve its decision making on publishing images that may cause offence and that Media Council Principles would be carefully considered in such decisions.
  7. In further comment to the Media Council the Herald’s Editor Murray Kirkness said he did not accept that Media Council Principles were breached.
  8. Principle (11) states that photographs showing distressing or shocking situations should be handled with special consideration for those affected.
  9. “We submit that, given the passage of time, a small photograph of two skeletons who died more than 70 years ago - and which had already been published by overseas media – is not ‘shocking’.”
  10. The two skeletons were clearly casualties of World War II during which 75 million people died. An image of two unrecognisable soldiers’ skeletons could no longer be considered shocking. Ms McIver could not claim to have been shocked by seeing the photo which she had already seen in the Polish media, but she was shocked by the decision to publish it in a New Zealand newspaper.
  11. There was no outcry from readers and the fact that her complaint was the only one supported the Herald’s position that the image could not be considered shocking.
  12. He agreed with her comment that the media would not publish images of mosque attack, earthquake or murder victims, but what made this case manifestly different was that the passage of time eroded the grief of losing a loved one in war.
  13. The purpose of the article was not to shock but to acknowledge attempts to identify the soldiers and the use of the photo was sympathetic rather than sensational. It demonstrated, in a way that words could not, the challenge confronting those seeking to confirm the bodies were New Zealanders.
  14. In print the photo was used as a small image and the digital version contained a warning that content may be distressing. This warning was included out of an abundance of caution. The removal of the photo was also done out of an abundance of caution because the Herald had not set out to cause offence.
  15. Mr Kirkness noted Principle (11) did not prohibit the publication of a distressing or shocking image, only that they should be handled with special consideration. The image was removed in an effort to resolve the complaint, but this was not an acknowledgement that it was too shocking to publish or that it breached Principle (11).
  16. “While we acknowledge that Ms McIver appears to be a self-appointed guardian for families who lost loved ones in World War II, it does not stand that it is for her to take offence on behalf of others.”
  17. He said the NZ Herald could not provide a blanket assurance that it would never publish images of a “possible New Zealander’s remains” as every photo had to be judged on its merits and context and with due consideration to Media Council Principles.

The Discussion

  1. This complaint highlights the difficulty all news media have when deciding what they should publish in stories that might offend people. The possibility that some might take offense has to be weighed against the arguments for publication.
  2. The media has a responsibility to report events in the public interest and the news can often be shocking, sad or upsetting. Photographs, graphics and moving images play a vital role in conveying stories.
  3. As noted above there have been many occasions where the media have published images that have shocked or even offended some people because there were compelling grounds for publishing them and because it was the most effective way to show what happened.
  4. Images convey a lot of information and are widely used for that reason. They are also run to draw readers to a particular story or for reasons of graphical presentation. 
  5. But editors must have regard to Media Council ethical principles. Principle (11) says an editor should take care in photographic and image selection and treatment. It also says photographs showing distressing or shocking situations should be handled with special consideration for those affected.
  6. Every story is different, and many factors have to be taken into account. There are divergent cultural attitudes to the depiction of dead bodies or human remains. The size of an image, the detail shown, the immediacy of publication, the timing, proximity and circumstances of death and, in this case, the passage of time are all factors to be considered.
  7. It’s implicit that editors are also bound to consider their audience sensibilities or risk a public backlash.
  8. In this case there were a range of mitigating factors that need to be considered. These were not readily identifiable bodies as they were the skeletal remains of two corpses buried over 70 years earlier. As published in the paper the photo was not large and the image was not explicit or particularly shocking.
  9. The NZ Herald demonstrated its consideration by publishing a warning with the online story and by promptly taking the photo down after just one complaint. It also apologised to Ms McIver for causing offense.
  10. But it is noted there was just one complaint and that was the one from Ms McIver, who had already seen the images in a Polish publication and was acting out of concern for others who might be seeing the image of a long lost relative for the first time.
  11. For the reasons set out above the Media Council does not uphold the complaint.
  12. Ms McIver also asked the Council to consider protocols ensuring photos of human remains of New Zealanders should never be published.
  13. The Media Council cannot support any such protocol as it would remove an editor’s discretion and responsibility and there may well be situations where publication might be justified in the public interest. It would also be contrary to the Council’s obligation to give primary consideration to freedom of expression and the public interest.
  14. Ms McIver was right to observe that images of the remains of New Zealanders are seldom published. That could be regarded as evidence that editors have been responsible and taken take care in the selection and treatment of images that might cause offence.
  15. The Media Council does not consider there are any grounds for upholding the complaint under Principle (12) Corrections. The Herald was cautious in its use of the photo and pulled it offline when it received the complaint out of what it said was an abundance of caution. It also apologised to Ms McIver for causing offence.
  16. The Herald reacted swiftly and sensitively even when it was debatable whether it was wrong to run the photo. The Media Council sees no need to second guess the editor’s judgement calls or consider that it was an apology that was required for running the photo.
  17. The decision is not upheld under Principle (11) Photographs and Graphics or under Principle (12) Corrections.

Council members considering the complaint were Hon Raynor Asher (chair), Hank Schouten; Rosemary Barraclough; Tim Watkin; Ben France-Hudson; Judi Jones; Marie Shroff; Alison Thom; Richard Pamatatau. Council member Scott Inglis declared a conflict of interest and withdrew from the discussion.

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