SANDRA GODDARD AND KOBE O’NEILL AGAINST THE HERALD ON SUNDAY
Case Number: 3351
Council Meeting: December 2023
Decision: Not Upheld
Publication: Herald On Sunday
Accuracy, Fairness and Balance
Photographs and Graphics
Behaviour of Journalists
Overview Sandra Goddard and Kobe O’Neill have complained about an article in the Herald on Sunday headlined I thought I was going to die and on the Herald website headlined Deadly wave: The storm over the Enchanter, skipper's new venture. The story was published on September 25, 2022.
 Kobe O’Neill was a senior deckhand on the Enchanter and Sandra Goddard is Mr Goodhew’s sister. Mr O’Neill complains under Principle (1) Accuracy, Fairness and Balance; Principle (2) Privacy; Principle (4) Comment and Fact; Principle (8) Confidentiality; Principle (9) Subterfuge and Principle (11) Photographs and Graphics. Ms Goddard complains under Principle (1) Accuracy, Fairness and Balance; Principle (4) Comment and Fact; and Principle (5) Columns, Blogs, Opinions and Letters. Not all of those principles are in fact relevant in this case so the matter will be considered under Principles (1), (2), and (9). The complaints are not upheld.
 The article claims to be the first time a survivor of the Enchanter fishing boat tragedy in March has spoken publicly about what happened on the day. The Enchanter was a charter fishing boat owned and operated by Lance Goodhew. Five men died when the boat was capsized by a rogue wave.
 The article is an “investigation” into the background of Lance Goodhew, the trip itself and his future plans. It quotes another Northland fishing boat owner Nat Davey, his skipper Matt Gentry, a local radio operator, a mother of one of the victims, a former client of Goodhew’s and another local skipper.
 Ms Goddard complains that the article is a “character assassination of the skipper” based on hearsay and “no actual fact”. She says the main source in the story, Nat Davey, is unreliable and biased because he is Goodhew’s competitor, “like Coke and Pepsi”, and would like Goodhew removed as competition.
 She says the footage used in the Herald’s video captioned “Final Day on Enchanter” was in fact footage of another voyage with different people on a different day in a different location.
 The complainant said the reporter phoned Goodhew multiple times and was “rude and pushy”. Back in March she also rang Goodhew’s 82 year-old mother for comment. She says the reporter rang her 6-20 times and only got her to talk when her mother was woken from a nap by a phone call. Afterwards her mother was “inconsolable” and distressed for days at having spoken. “[The reporter’s] harassment has really been at the highest level”.
 Ms Goddard makes several claims of inaccuracies. She says contrary to the story, none of Davey’s boats had seen or recovered a body and Davey could not have known the true sea conditions because he said his boats took the safer approach and did not go out. There is no proof Davey had complained to Maritime New Zealand two months before the sinking, claiming Goodhew had taken clients out when a cyclone was forecast.
 Finally, Ms Goddard says the Herald linked to the story from its Facebook page but shut down comments unusually quickly. However it left up a comment regarding Goodhew, saying “he should have died” that should have been taken down.
 Mr O’Neill complains that he, his partner and their friends were hounded by the reporter and that “has made the traumatic experience we have all endured additionally stressful for all involved”. He suffered a traumatic accident and the Herald’s “blatant disregard” for his feelings and those of other survivors and the families of the deceased is “staggering”.
 He says he neither agreed to nor completed an interview with the reporter. She rang him on or about September 14 asking for an interview and he declined. He told her he felt uncomfortable discussing it with her and did not agree to be quoted. He said “At no point did she advise me anything I said during this call would be used in an article. She continually asked me “did you think you were going to die?” and then used this as a statement from myself”.
 In a subsequent phone call on or about September 21 she said she had new information about him and Goodhew, but still Mr O’Neill declined to be interviewed. At the end of the call he told her never to phone him again and if she did he would seek legal advice.
 Ms Goddard also complains that Mr O’Neill was never interviewed for the story.
 Like Ms Goddard, Mr O’Neill complains that the video used was of another voyage altogether. He too complains of the Herald’s treatment of the story on Facebook and alleges the Herald turned off the comments on the story only when he commented criticising the story, “to prevent myself and others involved from stating the truth”. He goes further, complaining that the Herald used photos taken without permission from his and his partner’s social media accounts.
 The Herald on Sunday first responded on the day of publication, acknowledging receipt of the first of six emails received from Ms Goddard. The clip claiming to show the ‘Final Day on Enchanter’ was removed that day while she investigated and she replied in full four days later, on September 29.
 The Herald On Sunday relies in part on transcripts of the interviews with Mr Goodhew and Mr O’Neill, saying that when the reporter asked to interview Mr Goodhew she was subject to verbal abuse and swearing.
 The Herald accepts an error was made in captioning the online video ‘Final Day on Enchanter’. It was removed on the day of publication and The Herald apologised unreservedly to Ms Goddard for the mistake.
 On the question of inaccuracies, The Herald says the story makes it clear Mr Davey’s boat was out on the water, but Matt Gentry decided not to fish. Instead, he sheltered in Cascade Bay. It says Maritime New Zealand has confirmed Mr Davey did lay an earlier complaint against Mr Goodhew and Mr Gentry was captaining one of the rescue boats. He never claimed to have recovered a body, but rather saw one in the ocean. It’s his “version of events” that he did see a body, so the Herald had every right to print his story.
 The Herald agrees that “certain lines” in the article are the opinion of the other fishermen, but they are clearly quoted as such and readers will understand they are opinions not facts. The reporter did not only interview Mr Goodhew’s competitors, but also a radio operator, “locals”, the mother of a victim, a former client and relied on other information gained under the OIA.
 The Herald disputes the claim the reporter rang Mr Goodhew’s mother 6-20 times and harrassed her, saying she called her twice and that was during the week after the capsize.
 Regarding the “he should have died” comment on Facebook and closing the comments, The Herald says comments are sometimes closed earlier on weekends due to a lack of staff. The comment “definitely would have” been in breach of their rules and been removed. But it does not specifically confirm whether this comment was removed.
 The Herald responded to Mr O’Neill’s complaint on the same days as Ms Goddard’s. As with Ms Goddard it accepts fault with the video and says it has been removed. The Herald offers the same defence regarding the Facebook comments but also denies pinning a new post to take attention away from his comment, noting his comment was still prominent at the time of her response.
 The Herald says the reporter rang Mr O’Neill on September 14, identified herself as a journalist and said she was writing a story about the Enchanter. She rang him again on September 21, again saying she was a journalist. In both cases she has seen a transcript of the calls and the reporter’s approach was “respectful”. The Herald’s implication is that Mr O’Neill was aware he was talking to a journalist, so he was on the record and anything said could be quoted.
 The Herald says the photos used by The Herald were taken from public social media pages, “a public forum”. The Herald points to a 2018 Council decision on use of photos on open social media pages. It reads that it is best practice for media to seek permission before using images from social media, but if people post content or images on public forums it’s naive to think of them as private and journalists are not required to get permission to publish them. The Herald also points out that Mr O’Neill and his partner both appeared on a Newshub documentary days later, so they were not trying to keep their identity or story secret.
 The concerns over any inaccuracies in the article have been resolved by the Herald on Sunday. Reported facts, such as Mr Davey complaining to Maritime New Zealand have been confirmed and the actions of Mr Gentry as a rescuer have been explained.
 While Mr Davey is a direct competitor of Mr Goodhew, he also an expert on fishing off the Northland coast and readers are able to judge for themselves any biases he may have.
 The wrong caption on the Enchanter video was a serious and insensitive error and left uncorrected clearly fails to meet Media Council standards. However the Herald on Sunday removed the clip immediately upon receiving the complaints on the day of publication and apologised.
 The Council accepts the media, like any industry, make mistakes and wants to encourage prompt and responsible corrections. As per Principle (12) Corrections, this quick and responsible correction means the Media Council does not uphold the complaint against the video error.
 The facts over the reporter’s approaches to Mr Goodhew’s elderly mother are disputed. However, given those calls – however many there were – were made shortly after the capsizing and in relation to a different story, that issue is outside our timeframe. So the Council does not make any determination.
 It is reasonable for media to use images published on public social media. The Council stands by its 2018 ruling that it is best practice to seek permission first, but also that it is naive to think public posts can be treated as private. Posting an image on Facebook is like pinning an image to a physical noticeboard; it is in a public place and therefore will be seen by others. It is not unethical for the media to also publish such images.
 The most serious element of these complaints is that Mr O’Neill says he never agreed to an interview and felt harrassed by the reporter. Mr O’Neill had been through a traumatic experience, one for which he was not to blame. Principle (2) Privacy says, “Those suffering from trauma or grief call for special consideration”. So the fact he believes he did not consent to an interview and was left feeling “incredibly disappointed” must be of concern to any media organisation and reporter. There are occasions when sources must be pressed and held to account, but when interviewing a victim of a tragedy the onus is on the journalist to protect the source and ensure they’re aware they are on-the-record.
 Having said that, there are particular and complicated circumstances in this case. While he is in no way the focus of any concerns raised by the Herald’s reporting, Mr O’Neill appears to be allied to Mr Goodhew and hostile to criticism of his former boss. And while he is not trying to evade accountability (which may warrant subterfuge or pressure in the public interest), neither is he a bystander seeking to protect his privacy. He has spoken to Newshub and may have had an agreement not to talk to other media. It is clear from both parties’ versions of the phone calls that he knew he was speaking to a journalist.
 Mr O’Neill’s complaint seems to be based on the belief that while he did speak to the reporter, he did not deem that to be an interview. He says he declined when asked for an interview.
 The Herald on Sunday’s defence of its reporter relied on transcripts that it said showed the reporter had identified herself as a journalist, meaning Mr O’Neill was aware he was on-the-record. The Herald editor says on the basis of the transcripts “I am comfortable her approaches have been respectful”.
 Given the difference between the editor’s and complainant’s version of events and the Herald on Sunday’s reliance on the transcripts, the Council asked to see them.
 NZME’s lawyers responded that they were “concerned with the precedent we would be setting in releasing a transcript, or notes taken by a journalist”. The Council is sympathetic but notes the Herald brought the transcripts into the complaint, choosing to release part of one and using both to defend the reporter’s approach. At that point they are difficult to ignore.
 The lawyer, having read the transcripts, backs the editor’s claim the reporter identified herself as a journalist and while he did not respond positively to hearing again from her in the second call, Mr O’Neill did answer some questions, while saying “no comment” to others. The lawyer does not say whether or not Mr O’Neill declined to be interviewed.
 We note that the reporter identified herself as such and accurately published what was said to her, in line with industry expectations of fair behaviour. However based on the information before us it is hard to be sure how the two phone calls between Mr O’Neill and the reporter played out. We cannot rely on assurances from NZME based on transcripts we haven’t seen but neither can we rely on Mr O’Neill’s claims. As a result we cannot uphold the core part of this complaint under Principle (1) that the reporter treated Mr O’Neill unfairly and published quotes when he had said he didn’t want to be quoted. There is no evidence the reporter resorted to misrepresentation or dishonesty as described in Principle (9) Subterfuge. But the Media Council would stress Principle (2) Privacy, which says “Those suffering from trauma or grief call for special consideration”. The fact that Mr O’Neill feels so unfairly treated by this reporter should give her and her editor pause for thought.
Decision: Under principles 1, 2 and 9, the complaint is not upheld.
Council members considering the complaint were Hon Raynor Asher (Chair), Rosemary Barraclough, Hank Schouten, Jonathan Mackenzie, Scott Inglis, Tim Watkin, Ben France-Hudson, Jo Cribb, Judi Jones, Marie Shroff, Alison Thom and Richard Pamatatau.