Case Number: 2743

Council Meeting: DECEMBER 2018

Decision: Not Upheld

Publication: New Zealand Herald

Ruling Categories: Accuracy
Headlines and Captions
Misrepresentation, Deception or Subterfuge
Unfair Coverage


1. This complaint relates to an article that appeared in the New Zealand Herald on September 13, 2018.It was occasioned by the death of an elderly resident who resided in an upmarket North Shore apartment complex.The complaint is brought by the building’s body corporate through its lawyers.

2. The complaint alleges no fewer than six breaches relating to Principles 1 and 6 for two breaches, Principles 2 and 9, 11, and a further alleged breach of Principle 1.

The Story

3. The article is headlined ‘Legionnaires found in Sentinel Tower spa after probe into dying resident’.The article opens by stating that the relevant health authorities found traces of Legionnaires disease in the spa of the Sentinel Tower after an elderly resident contracted the disease and later died.It goes on to say that the management of the building says there was no conclusive evidence that airborne particles from the spa caused the man’s death.It notes the family of the 80-year-old who died declined to comment, but the Herald added they had been told he had other underlying health conditions at the time he was struck down.

4. It goes on to say that news that a notifiable disease had been found in the building’s spa had angered other apartment residents, who said they were not informed of it.It details events in late February or March when the deceased attended a function in the spa area celebrating the building’s 10-year anniversary.It then quotes at length from the building manager, Mr Warren Boel. He took over the management of the complex on 5 March. Amongst other things he stated the spa was closed and covered at the relevant time as it was undergoing annual maintenance.

5. There are then quotes from the public health medicine specialist who had been notified by North Shore Hospital that the deceased had contracted legionnaires on 22 March.He covers the steps that were taken, including taking water samples from the man’s apartment, spa, swimming pool and cooling tower, which later showed the spa tested positive for Legionella bacteria.It also states the building manager was asked to undertake immediate remediation, the form of that, and notes that the necessary steps were undertaken appropriately.

The Discussion

6. In dealing with the numerous complaints and alleged breaches of principles it is easiest to deal with the complaint and theHerald’s response under the various headings set forth in the letter of complaint to the editor of theHerald relied on by the complaint.

1. Principle 1 and Principle 6 — inaccurate headline

7. The complainant alleges that the headline quoted above mistakenly connects the death of a resident with Legionnaires disease that was found in the spa pool.In doing so, it fails to accurately reflect the fact the spa pool was closed at the time and the resident was found to have died from different causes.

8. In the response from legal counsel for NZME, the Herald states that there is no inaccuracy in the headline.It submits that what the headline states is that the bacteria was found in the spa pool in the course of investigating the source of the disease in the relevant resident, who later died.

9. We agree with that submission, and the headline is not misleading.Furthermore, it needs to be read in the context of the story, which makes it plain that the cause of death was unclear, but that in the carrying out of investigations occasioned by the presence of Legionnaires bacteria in the body, bacteria was found in the spa at the Sentinel.

2. Principle 2 — Privacy

10. The next complaint alleges breach of the Privacy principle, focusing on the last sentence of that principle that “those suffering from trauma or grief call for special consideration”.

11. The lawyer for the complainant states that the journalist made contact with the family and the family made it clear they did not wish to discuss the matter with theHerald.The fact that they had no comment to make is clearly recorded in the article.But as theHerald’s response states, Principle 2 states the right to privacy should not interfere with publication of significant matters of public record or public interest.

12. While it appears that the complainant communicated with the owners of the various apartments in the Sentinel tower, they did not tell all the residents.Rather, they left that to the various owners.The Council is satisfied that it is very much in the public interest that there was the presence of Legionnaires disease in the spa of the Sentinel tower, the steps that had been taken to deal with that issue, and the fact that a number of residents had not been made aware of it. We find it extraordinary to suggest otherwise.

13. Further, the letter from Sentinel’s lawyer goes on to say that Sentinel “made it clear it did not wish to discuss the matter”.That, of course, is contradicted by the lengthy discussion with the building manager, who theHerald was entitled to consider was an agent of Sentinel. This makes clear that Sentinel, through their agent, were quite prepared to discuss the matter with theHerald.

3. Principles 2 and 9

14. It is alleged that Principles 2 and 9 have been breached by the journalist gaining access to the Sentinel without proper consent.Principle 2 has already been referred to, and Principle 9 deals with subterfuge.

15. The Council sees nothing in this complaint.The reporter was invited in by a resident of the building who discussed the issue and was quoted in the article, photographed, and was also in an accompanying video in the spa area.Nothing has been put forward by the complainant to suggest a resident of the building was not entitled to invite the journalist in to the building.

4. Breach of Principle 11, Photographs and Graphics

16. It is said by the complainant’s lawyer that the video displayed on the website with the article was misleading in breach of Principle 11.That principle reads:

Editors should take care in photographic and image selection and treatment. Any technical manipulation that could mislead readers should be noted and explained.

Photographs showing distressing or shocking situations should be handled with special consideration for those affected.

17. There has been no suggestion that there has been any technical manipulation of this video.The complaint really is that the video does not show other security limits placed on gaining access to the spa pool and did not mention those features.It is said also that the video pictured the spa as if the only protection on it at the time of the incident was the cover shown in the video.

18. Counsel for the Herald makes the point that readers would clearly understand the video was taken at the time the story arose.Any reading of the article and consideration of the video would mean the reader understood clearly the necessary health safety measures had been taken.

19. We agree, and we do not consider there is anything misleading about the video when it is viewed in the obvious contemporaneous context.

5. Further breach of Principle 1

20. It is said by the complainant that the cause of death of the resident was misleadingly represented, in breach of Principle 1.It is said that the headline and the body of the article, read together, say that the man died after “contracting Legionella disease”.It is said this suggests that it is known that Legionella was the cause of death.The complainant accepts that the bacteria were present in the man’s body, but states it is not known whether he had the disease or that it was causative of his death.

21. Again, we disagree.In addition to reference to the bacteria, the article clearly states the deceased had underlying health conditions.It reports that in view of the building manager it was highly unlikely that the bacteria were the cause of death.It further goes on the building owner clearly responded quickly to the issue, but in the public interest context said there were deficiencies in notifying residents, as distinct from owners, as they were not notified of the presence of the bacteria.

22. While we accept that the first paragraph links the contracting of the disease and the actual death, the second paragraph brings balance and accuracy by stating, which is not contradicted by anything else in the article, that there was no conclusive evidence that Legionnaires disease from the spa caused the death.

23. None of the complaints are upheld.

24. We express some concern that this complaint has been a contest between lawyers for the two parties.From time-to-time that happens with Press Council complaints and clearly both complainants and the media have the right to adopt such a course.Over its lengthy history a relatively informal approach to the complaints procedure has contributed to the strength of the Council and the speedy and efficient way in which it has been able to resolve complaints. This makes the Council extremely accessible to the wide range of complainants who feel the media have breached our principles. We would not like the complaints to become more formal and legalistic. The very nature of our jurisdiction is such that it is preferable, wherever possible, that a complainant brings their own complaint, without inordinate professional assistance.

Media Council members considering the complaint were Sir John Hansen, Jo Cribb, Chris Darlow, Tiumalu Peter Fa’afiu, Jenny Farrell, Hank Schouten, Marie Shroff, Christina Tay and Tim Watkin.


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