SANDRA CONEY AGAINST MEDIAWORKS NEWSHUB

Case Number: 2757

Council Meeting: MARCH 2019

Verdict: Upheld

Publication: Mediaworks

Ruling Categories: Children and Young People
Photographs
Privacy

Overview

[1] This matter involves a complaint by Sandra Coney in relation to an image of a 6-year-old child which was associated with an article titledRowdy British tourists charged over Takapuna beach incident.The article appeared on theNewshub website on 24 January.

[2] Ms Coney emailed her concern about the unpixellated image of the child’s face toNewshub on January 24. She did not receive a reply. When the child’s face was still being shown some hours later she lodged a complaint with the Broadcasting Standards Authority (BSA).The BSA advised her that her complaint was within Media Council jurisdiction.On January 31 she lodged a formal complaint with Newshub. She received a reply saying she would have a reply from the Media Standards Committee within a week.Having received no reply on February 6 she lodged a complaint with NZ Media Council.

[3] Ms Coney’s primary concern is that “showing the child’s face breached the privacy of a very young child and was harmful.”

The Complaint

[4] Ms Coney has complained that “the showing of the child’s face breached [NZ Media Council] principles relating to Privacy, Children and Young People and Photographs and Graphics.”

[5] In considering the public interest component of this situation, Ms Coney has commented “Showing the child’s face breached the privacy of a very young child and was harmful.A child that age could not give consent and there was no public interest in showing his face.”

[6] There was a suggestion by Ms Coney that within the context of the story there was no need to show the picture of the child, “…the news piece was about the parents so there was no need to show the child at all.A child that age cannot be held in any way responsible for his parents’ actions or even his own actions.”

[7] In Ms Coney’s view the onus falls to MediaWorks to have the correct type of technology in place to avoid such an error occurring. She states “If this was a slip-up or error on MediaWorks’ part, and it was not intentional, that does not excuse the breach.Clearly, they do not have technology or practices in place that can guarantee a person’s face is always masked.Thus, they took a risk and this risk was heightened by the number of times they had shown the child’s face on news items.In addition, I believe the breach is worse given their failure to act when I emailed them alerting them to what I could see.”

[8] In response to the MediaWorks conclusion that the error was due to a “technical issue” Ms Coney maintains “…the consequences of course went beyond it being a technical issue to a breach of a very young person’s privacy.”She further emphasises, “In my view Mediaworks should have ensured its technology was secure before using a very young child’s image to publicise a news item.It had a duty to ensure this could never happen.”

[9] Ms Coney does not agree with the decision by the MediaWorks Standards Committee, “…we do not consider that further action is required in this case.” She has expressed that “…more action than that is called for. It would be my hope that if the Media Council upholds the complaint it would publicise this to the media industry, so they appreciate that such a breach is a serious matter.”

[10] Through the course of the complaint Ms Coney’s concerns were not addressed in a timely manner nor was she offered an assurance that the error had been corrected, “I did go to MediaWorks immediately [when] I saw this on my screen and I have never had a reply at the time or later as to why they did not act more quickly then.My only communication from MediaWorks was much later after I had lodged a formal complaint.In other words, they had the chance to act more quickly than they did.I note they did not tell us exactly when the particular breach I brought to their notice was fixed if it ever was.”

The Response

[11] Robert Dowd responded on behalf of MediaWorks Standards Committee on Friday 22 February.

[12] In the first instance, Mr Dowd offered an apology to Ms Coney “for not having responded to her complaint within the time specified in [Rebecca’s] email.Under the Media Council’s rules we must respond to formal complaints within 10 working days. That is the deadline we were working to, but of course not the deadline communicated to Ms Coney.We apologise for this miscommunication.”

[13] The image that Ms Coney has complained about was posted alongside the Newshub article “We understand that Ms Coney viewed the article on the MSN website, rather than on Newshub.co.nz.”

[14] Mr Dowd has stated there is an “important distinction” of which website Ms Coney accessed the online article, “…MSN has a licence to republishNewshub content, and this was MediaWorks’ content, over which the Media Council has jurisdiction.”

[15] Newshub have said they were diligent about ensuring the child’s face was not visible “Our editorial team had taken care to ensure the child was not identifiable on newshub.co.nz.MSN has a licence to re-publish MediaWorks’Newshub content, and subsequently did re-publish the article and video on msn.com.”

[16] Mr Dowd has expressly stated “The image did not appear in the article published on theNewshub site.”

[17] The error came about because the “video player on msn.com operates differently from the Newshub.co.nz video player.On msn.com a still image is played for approximately half a second, at the start of each video. In this case, the still image, which was of the young child, was not blurred.”

[18] Mr Dowd has said that “MediaWorks was not aware of this issue, before Ms Coney’s complaint.We were not aware that MSN used a still image, and not aware that the still they used was taken from the file we provided to them.We will now ensure that any still image used is appropriate for publication, including blurring if necessary.”

[19] The complaint was considered by the MediaWorks Standards Committee with reference to Media Council Principle 2 (Privacy) and Principle 3 (Children and Young people).The complaint was upheld for the following reason “In this particular circumstance, the young child’s face should not have been published without blurring.The child had a reasonable expectation of privacy, and there was [none], and certainly no exceptional degree of public interest which overrode his privacy interest.”

[20] However, the ruling concluded that “no further action is required in this case” and the explanation offered referred to the technical component of the error in showing the 6-year old’s face, “…we understand this was a technical issue which arose from the re-publication of MSN… Once the cause of this issue was understood, the image Ms Coney complained aboutwas blurred.MediaWorks has taken steps to ensure this error is not repeated.”

[21] Although Mr Dowd is unable to provide a date of when the image was removed, he says “The unblurred image was removed/rectified by MSN before MediaWorks received Ms Coney’s complaint, although we cannot provide an exact date that this happened.In any case it was well before the date of our formal response to Ms Coney.”

[22] Mediaworks maintains that this complaint was adequately resolved, “We don’t’ see any value in the Media Council setting a precedent for other media.[1]This was an isolated, technical issue that as far as we’re aware arose in a circumstance unique to the content sharing relationship between MediaWorks and MSN. We’ve put steps in place to ensure it doesn’t happen again, and we don’t think any further action is required.”


[1] The Media Council will always give due recognition of earlier decisions for obvious reasons. However, the Media Council is not, like some Courts, automatically bound by earlier decisions. The Media Council will always consider context and and relevant changes to public attitudes and media practice in reaching a final decision.

The Decision

[23] The MediaWorks Standards Committee considered the complaint with reference to Media Council Principles 2 and 3 and decided to uphold the complaint.They further remarked that as MediaWorks had taken steps to ensure this error is not repeated no further action is required in this case.The NZ Media Council are of the view that this complaint did need to be considered as there is a valuable lesson to be shared particularly in the current media environment where there exists a wide syndication of news.This complaint provides the ideal opportunity to highlight the importance of ensuring that partners in news-sharing arrangements are equally responsible in their adherence to media standards.While we acknowledge that in this situation it was a technology failure the unnecessary identification of a child has occurred.

[24] Principle 2 of the NZ Media Council principles states ‘Everyone is entitled to privacy of person, space and personal information…the rights of privacy should not interfere with publication of significant matters of public record or public interest.’In relation to this complaint the right of privacy involved the identification of a 6-year-old child whose face was clearly visible in a still image that was associated with an online article.The subject of the article, and the child’s place in it, was not a significant matter of public record or public interest therefore the NZ Media Council finds that this principle has been breached.

Principle 2: Privacy – Upheld.

[25] NZ Media Council Principle 3 regarding Children and Young People calls for editors to demonstrate ‘an exceptional degree of public interest to override the interests of the child or young person’.As Ms Coney has stated in her complaint, this matter involved the actions of the parents and therefore the use of the image of the child was not necessary.There was no exceptional degree of public interest which overrides the interest of the child in this complaint.Taking into consideration the explanation offered by Mr Dowd, speaking on behalf of the MediaWorks Standards Committee that the still image played on msn.com resulted in the young child being shown, provides a reasonable explanation that MediaWorks was not aware that MSN had used a still image which was taken from the file that was provided.However, this has resulted in the image of a child being visible to the viewers of the article.The Council finds that this principle has been breached.

Principle 3: Children and Young People – Upheld.

[26] NZ Media Council Principle 11 states that editors should take care in photographic and image selection.There was no specific reference to this principle by either Ms Coney or Mr Dowd however it underpins the complaint.Ms Coney questioned why the image of the child was necessary as the article referred to the actions of the parents.Mr Dowd has provided an explanation of how the still image came to be seen publicly which is the result of a technology issue.Refer to the decision set out in relation to NZ Media Council Principles 2 and 3 above.

Principle 11: Photographs and Graphics – Set aside.

Media Council members considering this complaint were Sir John Hansen, Liz Brown, Craig Cooper, Jo Cribb, Tiumalu Peter Fa’afiu, Marie Shroff, Hank Schouten, Christina Tay, Tim Watkin and Tracy Watkins.