The New Zealand Press Council has upheld a complaint by Mrs Yvonne Greer concerning the publication of a photograph of her in The Dominion, (it was also published in two other dailies) taken as she emerged from the High Court at Wellington after giving evidence in the Scott Watson murder trial. Mrs Greer had been a witness at the trial and was the subject of a Court order granted by the trial Judge, at her request, in circumstances outlined hereafter.

Some background must be provided about the relatively new rules governing publication of images by the media in trials. Access by the media inside courtrooms during trials in New Zealand using electronic recording equipment and still photography had been debated for many years prior to 1992. In that year the Courts Consultative Committee, a body chaired by the Chief Justice, began examination of the issue of expanded media coverage.

In 1995 a three-year pilot study was commenced and in 1996 extended to cover radio and still photography. The pilot was completed in 1998 and evaluated by the Pilot Evaluation Subcommittee on which the Commonwealth Press Union represented the editors. That evaluation is now complete and the permanent rules have been endorsed by the principal interest groups involved throughout.

This particular complaint is about a still photograph and the appropriate rule covering the case is B6 which states as follows: “Any witness or party to proceedings who conveys to the Judge a prior objection to being identified shall have their identification (through pictorial means) protected in any coverage by still photography.” An Explanatory Comment was issued with the Pilot Project and the relevant comment was contained in paragraph 6: “Use of out of Court film or photographs: The Committee considers that the use in any news report under the pilot of any out of court film or photography of any person who is subject to pictorial protection under the rules is contrary to the rules.” In the Council’s view the explanatory comment is to read as part of the rules.

The practical implementation of rule B6 requires that a newspaper which seeks permission from the trial Judge to take still photographs during court proceedings signs an application form nominating the trial, and other details. The Dominion made such an application and it was granted. The precise nature of that application is discussed hereafter.

Any witness to the trial may a make request to the trial Judge for protection against a photograph being published and that was made and granted in this case pursuant to rule B6. Briefly protection under rule B6 entitles the media to name the witness but not to identify her by pictorial means inside or outside the court. On that basis officials advised the witness what she might expect concerning publicity.

On Wednesday 16 June 1999 Mrs Greer was a witness in the trial and as she states in her complaint: “You can imagine our shock then as we left the court room, we had photographers flashing their cameras in our faces as we tried to leave for the airport.”

One of the photographers was for The Dominion. The actual photograph reproduced on the front page next day was clearly not posed, and carried a caption beneath: “Yvonne Greer… Watson ‘staggered’ into her tent”

Mrs Greer’s complaint was made against The Dominion only on the grounds that the newspaper was in breach of the court order by publishing her photograph, and that there had been an invasion of her privacy.

The response of The Dominion was that it had the right under the general law to photograph a person in a public place, and, further, by the precise nature of its application, as set out below, it was not in breach of the permission granted by the trial Judge. Those two reasons meld into one.

The relevant part of the Request For Permission form to this complaint is Paragraph 2:

"Permission is requested to photograph: (tick)
witnesses the defendant(s)
Counsel the Judge
Other (specify) "

The Dominion’s application form placed ticks beside Counsel, the defendant(s) and the Judge, but not the other two.

The argument of The Dominion is not without some validity but, in the Council’s view, does not prevail. At best it relies on a technicality.

The application was to participate in still photographic coverage of court proceedings under the rules, and by not ticking "witnesses" the applicant was merely indicating that it did not seek permission to photograph witnesses in the courtroom, and no more than that. That action does not entitle the newspaper to claim that the omission to tick witnesses on the form provided it with an exception so that outside the courtroom it could fall back, for witnesses, on the general right to photograph a person in a public place. The omission to tick "witnesses" did not carry with it any inference the applicant wished to reserve to it the general right. Once the applicant newspaper had voluntarily entered the scheme pursuant to the rules it was bound to observe all the rules.

It seems the trial Judge interpreted the application as aforesaid because next day in court he made critical comments on the photograph of Mrs Greer in The Dominion that day. The Judge seemed prepared to leave the matter with those remarks.

As the newspaper and the complainant witness took all preliminary steps bringing each within the regime set out in the rules the newspaper was in breach of the rules and the complaint is therefore upheld.

The complaint is upheld on the ground of breach of rules and it is not necessary to address the privacy aspect of her complaint.

The Council is satisfied the breach by the newspaper was caused by a misunderstanding as to the application of the rules and was not a deliberate flouting of those rules. The Council also notes that there are inherent difficulties in the application of rule B6 capable of causing confusion for the public, but that matter is left to the appropriate authorities to address.


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