A Pundit debate about media ethics winds up on telly... So is my argument "spurious"? Has the media overstepped in reporting the Christchurch quake? Some new thoughts...

I got too busy to post about this yesterday, but the debate that barrister and journalist Steven Price and I began here on Pundit last week got an airing on TVNZ7's Court Report. You can watch last night's episode here. I'd like to hear your thoughts.

Steven and I got into this in the thread to my post about New Zealand television's ground-breaking coverage of the Christchurch earthquake. We've covered a lot of the questions already, but a few more came up last night which I thought were worth touching on.

As I said on The Court Report, this seems to me to be a renegotiation of the relationship between the media and ordinary New Zealanders in the midst of extraordinary events. The tension between public interest and individual rights is stretched like never before; some people are horrified that we have all been able to see images of New Zealanders grieving just as we see images of others from around the world (my examples, being footage from places such as Egypt and Iran).

My argument is that we in the media don't get to choose the truth, just report it as best we can. We didn't choose the earthquake or the loss of life, but if we honour truth and accurate reportage, if we want to understand what happened that day and come together as a nation and record it all for our collective memory (think of that woman with a blanket around her shoulders after the Wahine sank), then we can't shy away from pain and trauma.

My gut feeling remains that the public interest and demands of history outweigh the individual rights of those few unfortunate enough to have been forced to face death and their own deep personal loss in a national disaster that, unquestionably, also belongs to us all.

Most people get to grieve in private, with no cameras about. And that is what we'd all desire for ourselves and our families. But if your tragedy is a public one, especially an historic one, then it seems your tragedy is compounded by having to share it. That is unfair and possibly decided without consent, but it is also inevitable and arguably for the greater good.

Having said that, the media needs to walk this line very, very carefully. Some of the still photos I found more disturbing than the video. (Yes, I work in TV now, but I've spent most of my career in print, so this isn't about protecting my patch).

The photos of a dying man, and indeed the others trying to save him, made my heart lurch. They seemed wrong at a heart level, yet under the principle of 'hard truth', it's fair to show them. Still, I struggle with them.

The Manning children have become the cause celebre around this question. I'd only seen the pictures of them in tears or staring blankly into space. And hard as they are to see, I understand the decision made to broadcast and publish them.

However Eleanor tells me there has been TV footage shown of what seems to be the moment when an official told them of their mother's death. That's a much harder call, and raises several questions.

First, why did officials not take them aside to a private place to talk with them? Second, should precise moments like that perhaps be beyond the pale?

Christchurch lawyer Kathryn Dalziel told Greg King on The Court Report that she had read of an Australian journalist describing that coverage as the "media stealing their moment of grief". Well, yes and no. Yes, that moment perhaps should be sacred. But when, then, does it become ok to start shooting again?

I also wonder whether it's a nonsense to talk about a "moment of grief". Those poor children will be grieving still, and that grief will go on and on. We shared a glimpse, but we didn't steal their grief. It will be much bigger and much more personal than any few seconds.

One last point. Lawyer Nicole Moreham thinks my argument that people need to see images of disaster to really connect with those suffering as "spurious". She claims to have sufficient imagination to comprehend disaster without witnessing it.

I get her point, but frankly it's naive. Seeing something takes understanding to a whole other level, beyond what we comprehend by just hearing about it and imagining it. Facts are ascertained and emotions and thoughts are engaged at a deeper level.

Take any example – seeing a winning try is much more thrilling than having it described to you, even by the best raconteur; seeing that student standing before the tank in Tiananmen Square is indescribable; seeing and/or hearing war is very different from reading about it.

Look at these images from the past half century and it hits you how sharing suffering through images moves us.

Anyway, good on TVNZ7 for talking about the issue; another reason why its loss is so disappointing.

Comments (53)

by Paul Corrigan on March 11, 2011
Paul Corrigan

We might feel differently here in New Zealand if  quake pictures are taken elsewhere -- such as in Japan, Korea, India, or the United States -- because we don't know those people.

But because it happened in one of our cities and to people whom many of us know or are related to then it becomes more personal; we are not so dispassionate.

We can dispassionately here in New Zealand watch people grieving after a mine disaster in West Virginia. But when they're grieving in Greymouth it becomes more personal. In my case I and the rest of the nation watched on TV a cousin of mine trying to comfort his sobbing wife. I cried with them. Whether I needed TV footage to help that along, I don't know.

I think we needed to see those images. How can you empathise if you cannot get an understanding of the tragedy that had befallen those people?

The initial footage of the quake, which TV3 was furiously pumping out, was absolutely necessary for everyone who could get to see it.

Where I live, around the corner from Liquifaction Central in Wellington, the radio reports just made it seem like it was another earthquake. Not until I turned on the TV and saw bricks and mortar falling off Christ Church Cathedral and people with blood and muck on them did I see how huge it was.

The media had a job to report it, and they did it brilliantly -- despite being in the middle of it and suffering from it like everyone else, they got on with it. It might not have been perfect, but to do what they did in those circumstances ... they can always look back on a job well done.

There is sometimes a tendency to sanitise, to spare feelings. For example, I read once about an American war photographer who said that he and his colleagues never took photos that identified dead GIs because they wanted to spare the mothers of America from seeing their sons dead and perhaps mutilated.

But how else could you describe, for example, the piles of bodies found in German concentration camps? Only a photo could convey the scene in all its ugliness.

Sometimes an event, and the people experiencing that event, has to be shown. If that means in all its unvarnished ugliness then so be it.

How else are those of us not there to gain an appreciation of what happened? That's the reporters' job -- to tell us and show us as best as they can what happened. That's what they're there for.

It's easy to second-guess afterwards.

by BeShakey on March 11, 2011
BeShakey

Can the media only do their job by showing the most extreme images?  Or are they capable of achieving the same with a bit of sympathy for the victims of the quake?  Is it really necessary to show images that risk a husband/wife/child learning of the death of a loved one while watching televsion?  I can't see how excising the handful of images that crossed the line would have made it impossible for the media to convey the extent of the tragedy.

by MikeM on March 11, 2011
MikeM

To an extent I can appreciate the need for the media to show the consequences of an event such as this.  I think what gets me, though, is when the same information or scenes are shown over and over again. There's a point at which the re-playing of specific people suffering is no longer news and it becomes entertainment or filler for couch rubberneckers who've almost certainly seen scene several times already anyway.

I didn't see much of how the NZ media treated this, but Jonathan Holmes of the aussie MediaWatch, in episode 4 from 28th Feb, really got into how some of the Australian media repeatedly showed the same distressing scenes of specific people over and over again, focusing on certain situations where the subjects were embarassed and clearly hadn't wanted to be taped but then muffling the audio to disguise this.

by on March 11, 2011
Anonymous

Tim, as a former Graphics Editor, I've spent days and days trawling Reuters picture desks for images that "tell the story". 99% of them would have been from overseas and the ones I and colleagues invariably chose were the ones that had the most emotional pull. We had no qualms showing people at their most vulnerable - although generally we blanched at extreme blood and gore which there is plenty of. We were happy to show suffering foreigners as pure news...with no strings attached.

If we all think of history changing news, we all think with imagery given to us by media.

Vietnam - the naked napalmed girl

9/11 - The tuxedo clad waiter diving head-first to the ground, the planes repeatedly melting into the buildings.

Hiroshima - The dripping faces of victims.

At best these images gave us empathy, an understanding of suffering and a realisation that we should strive to avoid such events happening again. At worst they gave us a thrill and they sold newspapers and advertising space - a favourite phrase at ediorial meetings was "if it bleeds, it leads". Sick but true.

We all happily accept such events being shown to us from overseas to such an extent that we mostly ignore them - do we even notice (have we EVER really noticed?) maimed and starving Africans any more?

I guess Christchurch's suffering and the accompanying imagery has helped us all wake up to the fact that we live in a fragile world.

Welcome to real life death New Zealand. It's not good, it just is. I think the media have done a surprisingly good job at giving us an honest view of what happened.

by william blake on March 11, 2011
william blake

You touched on the medias’ hunger to find ‘that image’ that comes to stand for an historic event in the collective culture in your first post on the medias’ invasion of Christchurch. Several of those images have been mentioned here, I find it is a curious form of trophy hunting but probably essential.

In some ways the sheer quantity of material that has come out of Christchurch is turning to overload, creating a historical compost that ‘that image’ may spring from.

That image may not be the obvious one either; the piles of bodies photographed in the concentration camps are inhuman, for me it is the images of huge piles of reading glasses and shoes that humanise and give scale to the pogroms.

Hopefully like the Wahine image you mention it will me an image that captures sadness, survival, luck and courage.

by BeShakey on March 11, 2011
BeShakey

"Welcome to real life death New Zealand. It's not good, it just is."

Surely we get to set the way the media operates via the choices we make as purchasers/users and the laws that are made on our behalf.  So to say its not good, it just is seems like a silly argument.  If its bad, we can change it.  And while I agree that death (and serious injury) are brutal graphic events, does that mean the media has to make it worse by exploiting the victims for the supposed benefit of the public?

by Paul Corrigan on March 11, 2011
Paul Corrigan

I think this discussion is degenerating into some disapproving moral-high-ground posturing.

Tim Watkin made the very good point that the media didn't choose this earthquake. It happened among them, and the quick-witted of them got out and started to do their job, despite their personal circumstances.

They filmed and photographed and recorded what was there in front of them, some of them while even helping other people as they did so.

News-gathering is not always neat and tidy. News - that which is interesting and important to people - is not always nice and bloodless and clean and neat.

The Manning children being filmed as they were told their mother's possible fate. It is an invasion of their privacy. But is it a bad thing? There are precedents. In the early 90s the defunct Evening Post newspaper ran one of the most gut-wrenching photos I can remember. Two policemen are holding up a blanket so a mother could identify the body of her son who had been run over by a commuter train. There were arguments about that.

I am looking at a photo now that was run in a US newspaper also in the 90s. There has been a house fire, and the photograph depicts the moment a fireman has just told the grandmother and granddaughter that a boy has died in the blaze. I suppose that we in New Zealand looking at that would do so without getting aroused into some outrage.

So, perhaps proximity and knowing the people concerned affects our outrage.

BeShakey asked before whether the media can only do their job by using the most extreme images. My answer to that is how would they know which were the most extreme? And why does he/she think victims are being exploited?

by Joe Wylie on March 11, 2011
Joe Wylie

Just people, dealing with it. Plus a stray cat:

http://www.facebook.com/album.php?aid=330577&id=548682344&l=a270e806bb

by BeShakey on March 11, 2011
BeShakey

My answer to that is how would they know which were the most extreme? And why does he/she think victims are being exploited?

In answer to the first question, do you really think the media are incapable of using any judgement?  I suspect you don't, at least in other cases.  Personally, I can't see any reason why they couldn't have similarly used their judgement in this case.  And even if they didn't have the skills to use proper judgement, thats an argument to upskill them.

In answer to the second question, the definition of exploitation is to use for ones own ends.  Tim's argument seemed to be that they were exploited, but it was ok because it was for the greater good.  I also think that, at least in some cases, the media knew that these images would boost their viewership.

by Tim Watkin on March 11, 2011
Tim Watkin

BeShakey, it's true, our media is almost all commercial, so they all battle for audience share. Having said that, I'm not sure the BBC or PBS would have chosen different images.

I haven't spent a lot of time in the newsroom, so I don't know how many shots were cut, but in the previous thread one of the commenters mentioned seeing more graphic images overseas. Perhaps we haven't seen the most extreme. (I do remember TVNZ showing what looked like a dead boy/young man being pulled from rubble early on the first day. The image was shortened on the next few uses, then seems to have disappeared).

Interesting thoughts about proximity. It's a real debate whether the rules should change the closer to home a disaster is. Should we be denied insight offered overseas out of sensitivity? I'm sure there's a line there somewhere.

William, yeah it is a gruesome hunt, and you're right that it's not always the obvious. It'll be interesting to see which images of this quake are pulled together for the 10th anniversary special.

Paul, thanks for your thoughtful comments.

by Paul Falloon on March 12, 2011
Paul Falloon

I think another response to Nicole Moreham's idea that she can use her imagination is that one may well be able to do that sufficiently but only because we have all seen pictures of similar trauma from other times and places so we connect those images in our minds with these emotions. If no one had ever published or shared the visual reality of such tragedy, we would not be able to use our imagination. Ultimately something needs to be shown and shared of the pain for deeper understanding and empathy. Perhaps.

by Ian MacKay on March 12, 2011
Ian MacKay

Ugliness is in the eye of the beholder. Am I better off by seeing the damage to people in an earthquake? Is it meant to bring home to me the reality so that I am a better more thoughtful person? If it was, should the injuries suffered by a child beaten and cigarette burnt in our country be shown? I really don't know but welcome the topic raised.

By the way. Wasn't the sailor kissing the girl exposed much later as being carefully set up, rather than spontaneous?

by Chris Webster on March 12, 2011
Chris Webster

Tim:

At the time/periods those fateful and penetrating photos were released to the world - we (in NZ and most of the world) - did not have the technology we enjoy today - so that is why they were considerd so shocking when actually published in a print media.

Now we see this type of pain and slaughter regularly -

and the debilitating effects of civil war on helpless folk and their children -

But most TV media now caution viewers that - explicit images or images that may disturb people will be broadcast - enabling one to either make the cup of tea - or turn away or turn off - or to simply sit and watch it --

watching that pain through the eyes - almost clinical experience - is surreal -- and because it is iterative - the horror and the madness associated with civil war killings and brutality and the deaths caused by natural disaster - and we know these things happen - so in a really peculiar fasion - we almost expect to see the gruesomeness of disaster and death -

what is more disturbing - is the repitition -- of suffering -

is it really necessary ?

Now we have the tsanumi in Japan - we watch with fascination at the water surging through the coastal communities - and happily there are no scenes of people drowning or their lifeless bodies - yet --

but we hear the descriptions and can image the difficulty that country will experience - as we did - to recover from their losses and mourn those who have lost their lives

thankfully that mental anquish cannot be photographed -- people will remember the images - and TV pix of people suffering experiencing personal loss is - to my mind - intrusive and unnecessary

but thank you for your column and experience and approaches in maintaining the balance you describe

by william blake on March 12, 2011
william blake

Yes it was a set up Ian, like Brian Brakes famous 'monsoon' image created with a watering can; 'art is a lie that points to the truth', but the trickery highlights the need for weighted images of historical events. In the case of natural disaster an image that reminds us of the losses but does not wallow in grief or horror, a tricky ballance.

The hyper mediation of the Christchurch eartquake could overendow us with imagery, like the internet, too much information and not enough knowledge. The iconic image may become an historical artifact of its own in the world of mass communication.

by Nicole on March 12, 2011
Nicole

Hi Tim - I have taken the liberty of re-posting a slightly amended version of a comment I wrote at the end of the thread on your 'new news' article.  I have seen the Court Report and read with interest both your articles  here and the discussion of media intrusion which followed them.  I hope I am not doing you a disservice if I summarise the arguments that you made there as being roughly the following:

The public expects wall-to-wall news coverage for several days following an event like the ChCh earthquake.  It is difficult to provide that coverage without including some intrusive images.  We know that the use of these images can be distressing  to those who appear in them, however, we as a society have agreed that they have to put up with that harm in the service of a greater good – namely, the provision of immediate wall-to-wall news coverage of an event that the public wants to know about.

I have to say that I find a couple of the premises on which that argument is based unconvincing.  First, your suggestion that individuals who appear in injury and/or grief images have to tolerate personal harm so that society can have its news, runs against decades of jurisprudential and philosophical consensus which says that people (and that includes ‘society’ as a whole) cannot treat others as a mean to their ends, however laudable the user might believe those ends to be.  The modern law of privacy is founded on this principle of respect for persons (see eg, Campbell  v MGN Ltd and Peck v UK, approved of in the leading New Zealand case, Hosking v Runting) – the law protects the dignity of individuals against those who would use them for their own ends.  It follows that the broadcast of images of intense grief or suffering cannot be justified on the basis of some general imperative to get the news out.  Instead, the courts require the media to show a specific countervailing public interest in each image that they produce (see eg, Hosking and Campbell).  This, then, is the legal position: society will only be entitled to see intrusive images if the need to see that image outweighs the individual’s right to be left alone at that moment.   There is no sweeping rule – legal or ethical – saying that the needs of people who are in the wrong place at the wrong time can be sacrificed so that news can be provided more readily.  I have never before heard anyone (lawyer, philospoher or ethicist) use social contract theory to suggest otherwise.

Second, I was wondering whether you have any basis for your claim that public expected wall-to-wall coverage for not just one but several days after the ChCh quake (noting that, in my view, the coverage descended into full ‘grief porn’ on about the third day)?  And even if the public did expect this, is it really in the public interest to provide such coverage even if reporters have run out of news that isn’t prurient or intrusive?  The premise here seems to be that the provision of any image of the event is in the ‘public interest’ even if its information value is low.  I also can’t help but detect here a conflation of the media’s interest and the public interest.  It might be easier to fill the papers and the airwaves if media are allowed to publish graphic images of grief and suffering but it doesn’t follow that the public has a legitimate interest in seeing them.

I note that you are unconvinced by my arguments that New Zealanders are sufficiently empathetic to be able to understand the horror of a tragedy like the Christchurch earthquake without seeing a picture of a teenager being told he has just lost his mother.  Perhaps I am over-estimating my compatriots but I have spoken to at least half a dozen people this week (all of them female, incidentally) who have said that they completely switched off from the media coverage because of its prurience.  I would make a distinction here between images which focus entirely on individual grief and those where the appearance of a vulnerable person is necessary to show a wider event like a rescue or a streetscape.  If the media want to focus on individuals outside the hurly-burly of the immediate aftermath (eg at funerals, in vigils, receiving news etc)  then why not get consent?  News editors I have spoken to have said that this is not unrealistic; as Pike River showed, some people are very willing to share their feelings with the media. 

 

More work needs to be done to examine the effect that images of intense pain and grief have on those who involuntarily appear in them (I am intending to undertake research in this area).  Isn’t there a hypocrisy though in claiming that we need to use these images to create an 'emotional connection' with the suffering of victims, all the while knowing that their publication often makes that suffering even worse?  Forgive me for saying so but it would be naïve not to observe that those making these ‘emotional connection’ arguments tend to be journalists who deprive professional benefit from publishing them. 

 

Rather than end on that cynical point though, I should note that I am grateful that you are prepared to engage in this debate in such a constructive and thought-provoking way.

Nicole Moreham, Faculty of Law, Victoria University

 

by Paul Corrigan on March 12, 2011
Paul Corrigan

With respect, the Hosking case is not relevant. The young misses Hosking were not newsworthy. Nothing about them was interesting and important to most people at all.

What happened at Christchurch on February 22 was a news event. It was a tragedy, and tragedy is news, and it always has been. Tragedy is about people. How that tragedy affects them and how they react to that tragedy is news. It is also history.

Does anyone seriously suggest that in moments of great tragedy people in a public place should not be filmed or photographed unless their permission is first obtained?

If so, then future historians and writers of books about historical tragedies could be in for a tough time. No photos from the Blitz (1940-41, WW2), no photos of huddled and oppressed masses because the reporters and photographers didn't get around them all to ask: 'Excuse-moi, M'sieur, but I must ask you for your permission to invade your privacy.' No photos of the African child with the vulture in the background. Nothing at all. Everything sanitised. Or, is it all right if grief and pain is broadcast from faces in Sendai, or Rawalpindi, or Nuku'alofa, but not from Christchurch?

Journalists gather and report news. It has been going on for a long time. Long ago there used to be people who went from village to village and they gave the news orally. Sometimes the tidings could be up to a year old before they got to do a follow-up. Later on news was written down, and later again it was set in type. The printing press ensured the more rapid distribution of news, and to wider audiences. The telegraph meant the correspondent's despatch from the Crimean War could be in the paper next day.

News until recently was told in words. Often in thousands and thousands of words; photos were expensive to produce. But radio and TV have hurried things along, and these developments and the internet have coincided with modern news consumers (hate the term, but that's my bogey) who don't want to read columns and columns of type -- they want to also look at pictures of the events described. The dramatic picture, far from being prurient, is part of that story-telling.

Technology means we can watch events unfold. And 'the media' are not the only sources or conveyers of news any more.

Dr Moreham writes that she would like to imagine things. Well, good for her, but not everyone does.

She writes that she consulted at least half-a-dozen people on whether they felt turned off about the news coverage from Christchurch. I'm surprised that she appears to suggest that the views of at least six people are representative of or relevant to anything.

Dr Moreham makes plain her distaste for some of the coverage. Just because an individual thinks that what is going on is 'grief porn' (what exactly does that mean?), prurient, intrusive, exploitative might not be necessarily so.

She takes issue with Tim Watkin's remark about 'the greater good'. Yes, that does connote a kind of laying another's life down for them, which no-one has a right to do. Another way of looking at it might be that when you're in a public place and the biggest natural disaster is going on around you you stand a very good chance of being filmed and recorded in  some way. And not just by 'regular' news media. A lot of stuff I saw in the early days appeared to have been shot by non-media cellphones. That's the way it is now.

And courts: well, courts are made up of people, and even judges can display common sense. Certainly attitudes change over time. When I started out as a journalist several lifetimes ago reporters could report only what was said in evidence in a courtroom. There were very tight rules. Now it is common for people accused of crimes -- even of murder -- to be interviewed and asked for their side of the story or to explain themselves before the case is heard. The courts appear to allow this to happen. It used to be that you couldn't say that a person had committed suicide until a coroner had ruled it. But the rules appear to be loosening.

Dr Moreham writes that she intends to do research on the effect that 'images of intense pain and grief have on those who involuntarily appear in them'.  Well, given that there's a big world out there with a lot of images of intense pain and grief probably recorded involuntarily, good luck with that.

One final thought: from experience, I've  found that lawyers (or those who make a living from the law) and journalists are the last people to fling about accusations of hypocrisy.

by Nicole on March 13, 2011
Nicole

Tim - I have been thinking overnight where I think the courts might say that the balance between the public right to know and the right to privacy would rest in coverage of major national disasters and would be interested in your views on the effect that the application of these rules would have on those at the coalface.

I think the courts would hold that there is a strong public interest in showing people as part of the 'action' of the events, eg emerging from rubble, wandering the streets in shock, being rescued etc.  There would therefore need to be something exceptional for the Hosking tort to apply eg the depiction of children and young people (which courts recognise are a special case) or extreme exposure like someone losing their clothes or control of their bodily functions. 

In contrast, judging from previous decisions both here and overseas, I think the courts would say that the public's interest in seeing images which focus on individual's emotional reactions to the event rather than 'action'  would be held to be of lower public interest and so more likely to be actionable.  This means that greater care would need to be taken to make sure that images of people at funerals, vigils, being told bad news etc (again particularly if children were involved).  I think courts would require the media to show that there is a specific public interest in showing it (rather than a general need to communicate the effect of the event). 

Applying these rules to some of the coverage we have been discussing would mean that the pictures of Shane Tomlin, people crying into cellphones, bleeding on the street etc (and the kinds of examples Paul Corrigan identifies in his comment) would fall outside the scope of the action.  In contrast, the pictures of the Manning kids would almost certainly be actionable and the pictures of the Pike River families emerging from that meeting (especially the pictures of kids) might be too. 

Finally,  in response to Paul Corrigan, the law of tort including the tort established in Hosking applies in any situation where the claimant can make out its elements.  The Court of Appeal have given clear indications that it can be established where vulnerable people are been filmed in public places.  Perhaps it would be useful to set out the exact words from the judgment:

"There is a considerable line of cases in the United States establishing that generally there is no right to privacy when a person is photographed on a public street. Cases such as Peck v United Kingdom [broadcast of footage of a man filmed trying to commit suicide on a public street] and perhaps Campbell [Naomi Campbell emerging from a Narcotics Anonymous meeting] qualify this to some extent, so that in exceptional cases a person might be entitled to restrain additional publicity being given to the fact that they were present on the street in particular circumstances."

The Court in Peck says that a person in a vulnerable situation is entitled to privacy protection even if he or she is in a public place.  In this dicta, the majority in Hosking were accepting that rule is also part of our law.

 

 

by on March 13, 2011
Anonymous

BeShakey – “Surely we get to set the way the media operates via the choices we make as purchasers/users and the laws that are made on our behalf.  So to say its not good, it just is seems like a silly argument.”

I was probably a bit unclear in my statement. Of course we have a right to criticise media representations of an exceptionally important event – I guess I was trying to say that I don’t think they did a bad job of the actual reporting – we were presented with an event that was difficult to report and sometimes difficult to watch. If we didn’t like the view we all had remotes. Sure, there were some bad media moments and the endless repetition is seemingly…endless. That’s when I went and did the dishes – but there were people – especially Christchurch people, who didn’t see anything for the first few days and would have appreciated the chance to see what we all saw.

Dr Moreham: The media are in a very difficult position at the moment – huge financial pressures make much of the news we are seeing banal, hysterical and often just dumb…The Christchurch EQ wasn’t generally such an occasion. We mustn’t confuse crappy, underfunded and inexperienced media with upsetting, vivid and world changing news.

I reckon we deserve and need to see ourselves in the same way we see others – we should never shut ourselves off from harsh reality. To suggest that we do so is dangerous. Honest images are one of the best ways to bear witness to our world, but they are also an easy target for those that would like to hide away.

I do however believe some sort of line needs to be drawn when it comes to using news footage to market the news. Perhaps this is the what you are finding unsettling? Figuring out where the lines between marketing, reporting and producing the news occur is another, probably more complicated subject.

I hope you are going down this seemingly censorial path with more evidence than the testimony of your six female friends and what appears to be a gut instinct. Have a look at France’s privacy laws. Although I can see some merit, they also appear to be a great way of dividing a nation… between those that can afford lawyers and those that can’t.

http://www.monstersandcritics.com/news/europe/features/article_1547408.php/French-privacy-law-trumps-the-public-s-right-to-know-Feature

I thought it a bit ironic that you accused journalists of some sort of bias because they make money from other people’s trauma…do you ever actually ever go to a courtroom?

One question for you Doctor:

If you were a news editor, would you have published the image taken by photographer Nick Ut of Vietnamese girl Kim Phuc? The young, traumatised and naked napalm victim was surely at her most vulnerable then…should Ut have tried to get written consent? Check out her life after that image was splashed around the world… it might help you in your quest.

I think the greater good was served by the publication of the Nick Ut/Kim Phuc image. A good photographer took the photo and good journalists used it… Christchurch proved that we still have good news sense here too... when we resource it and believe in it.

by Tim Watkin on March 14, 2011
Tim Watkin

Nicole,

Thanks for joining in. Let me respond to your first comment first, as there's a lot in there. Then I'll read and respond to your second.

Your summary is ok... but you don't include my arguments about truth and history, nor do you address the cost of not providing comprehensive coverage of a national disaster. That's worth considering.

Paul makes a lot of points I would make. Hosking was papped for a gossip mag at a random time, the victims in Christchurch were caught in the midst of a national emergency as it happened.

They are very different news events, and I'm sure a judge would see them as such.

You say you're unconvinced with my argument re the public good vs individual rights, yet then go onto say that the "legal position" is much as I described it. That is, where it can be judged that the public interest outweighs private interests, intrusive images can be allowed. I have spoken about it as a justifiable principle for the media to work from - that there is a personal cost in the broadcast/publication of some of those images, but that public interest usually (not always - as discussed, some images haven't been shown) wins out.

And this, more than any event, much reach that public interest threshold of reasonableness - this was designated a "national emergency", remember.

You use loaded language - media who "use them [victims] for their own ends" and victims being "sacrificed". That's telling. That's the language of an individual who feels expolited. If you took the public interest point of view, you'd use other language.

You seem to be working from an assumption that the media are exploiters, rather than story-tellers; heartless rathers than reporters. What if you think about these images as pieces of history, as records of a moment, as truth? If you ascribe different motives, you might be more sympathetic to the outcomes.

Because unlike the week-to-week grist of a woman's magazine, the reportage of the earthquake has not been driven by commerce. To hint otherwise is untrue from my experience, and unfair to the work of good reporters.

You talk about "grief porn" by the third day. You and I must have been watching different broadcasts! I saw repeated talk of Red Cross numbers and where welfare centres were being established... live media conference of politicians, police and civil defence leaders wanting to get information out... stories of silt and survival and clean-up... questions about re-building and heritage... about what was under the rubble... economic impact and port openings... more survival stories... river pollution... victim support services... the arrival of rescue teams...

Are any of those "grief porn"? And if in amongst these dozens of other stories there were some about the people who had died, and a few (very rare) interviews with their relatives, isn't that appropriate? Are we so afraid of grief and death that we should try to talk about a disaster without talking about the dead and the grief?

Talk of "grief porn" grates me, to be honest, just as people saying 'a lawyers lie for a living' probably grates you. It's a generalisation, is used way too easily, ignores all the good work being done, and often reveals more about that person's prejudices than anything else.

Your repeated conviction that journalists only cover disasters for "professional benefit" I also think is misplaced. Criticising journalists for publishing/broadcasting upsetting images is like criticising a lawyer for representing a criminal. We didn't cause the earthquake anymore than the lawyer committed the crime. It's our job. Some people find it distasteful, but without that job being done... imagine no defence counsel and no coverage of disaster.

Social contracts? I used that metaphor because it makes sense of how we view disaster from overseas. We accept that we get to see the grief of strangers. If you would have TVNZ turn off the cameras in Christchurch, should the BBC also turn off its cameras in Cairo? Should NHK have stopped filming in Japan? This is a question you must answer if you are to truly wrestle with the price/good of reportage.

You say there is no "sweeping rule". Maybe not in the books. But my argument is that one does exist in, for want of a better phrase, common law. It's just something that most of us can live with, without switching off in anger or disgust.

You ask if I have any basis for my claim that the public expected wall-to-wall coverage for days. In fact, what I said was that there were no expectations; that this was an entirely new level of coverage. The questions rather are a) whether the public wanted it and b) whether it was in the public's interest.

The simple answer to the former is that people watched. I haven't had a close look, but I understand for the first week or two the ratings were higher than usual, before settling back to normal. The demand was there. Most viewers wanted the information and weren't offended. I don't accept that the information level was low; if it had been, then yes the coverage would have had less value. But it took days to learn of the need for portaloos, of the travails in the east, of areas that need to evacuate because of rockfall...

You wonder if it's "easier" to play grief porn. It's not. At least, it's not that simple. Once resources are deployed, yes, it's easier to use those resources. But it's expensive. Journos work long hours and have to deal with the grief they're reporting. Local reporters put aside their own woes and grief. Many "easier" stories, such as Hone Harawira leaving the Maori Party, or pre-arranged stories were ignored as a result.

Finally, I never, never suggested New Zealanders are not "sufficiently empathetic".That's how you interpret a desire to see pictures, because you think it intrusive. I see that desire as a yearning to understand and connect. I don't think a desire for more coverage is a failing or that those who preferred less coverage has more imagination. That's where we differ.

I don't think you're "over-estimating" your compatriots. Quite the reverse, I'm afraid. If a viewer didn't care, they would have switched to TV2 or gone to the pub. (Things anyone could also do if they were offended by the continuous coverage).

And consent. Why do you assume consent wasn't given? In the 60 Minutes piece following the man whose wife was inside, he had been approached and had spoken. When a friend asked the camera to leave, the shot ended (presumably because it was switched off). I suspect that "outside the hurly burly", consent is the norm.

I do appreciate the debate, but I really think you're off base on this one.

by Tim Watkin on March 14, 2011
Tim Watkin

I'm wondering what people make of the extraordinary pictures out of Japan.

Some would say that we shouldn't need to see the pictures of the tsunami to comprehend it, that we can imagine what an earthquake 1000 times bigger than Christchurch's is like without seeing pictures.

But for me I've never seen anything like the the boats and cars being washed away... the dozens of houses being swept along... the flat field of sticks where a town used to be... those greenhouses being swamped by the black tide. It would have been incomprehensible had I not seen it with my own eyes.

by Tim Watkin on March 14, 2011
Tim Watkin

Nicole, re your second comment, I suspect the distinction you make is not far from that applied.

One question would be how long you define 'the action' to have lasted. The length of the quake? Until the next day? The last body removed?

I also wonder how you can remove the emotion from the action. Are the tears not part of the quake? IOs grief not part of death? How we react to a thing, tells us much about the thing itself.

And if we do separate the reaction from the action, might we not add to the trauma or creating a misperception as to how bad things are? If we show the quake but not the emotion, aren't we lying or at least suggesting that everything's better than it is? Isn't death without grief dishonouring the dead?  

In practice, I think most journos still assume that if you're in a public place, you're fair game. So your line could change things a little, but the truth is that shooting in public places will almost always be fine anyway.

Regarding Christchurch, I don't think a lot of images used in the past few weeks would have to be cut. We keep coming back to the Manning children. They were indicative of a city's grief, but I don't think they were indicative of the coverage. Most grieving people outside of 'the action' were spoken to, thereby giving dissent.

Perhaps they were a mistake. And as I wrote earlier, perhaps authorities erred giving them the news in public. Yet the fact people keep coming back to that image shows how it resonated.

by Tim Watkin on March 14, 2011
Tim Watkin

I've been wary of referring to this, but it is a public item... This link to a TVNZ story was one that I set up. The woman, Amber, gets emotional in telling her story. It's not about a death, certainly, but it's very personal and she certainly feared for her life. Perhaps some will find it uncomfortable. Some may think it exploitative.

But she volunteered her story; indeed she went out of her way to be available. She got the chance to say thanks to her rescuers and express some grief. And afterwards she said thanks for the chance to speak.

I guess my point is that we shouldn't assume that all personal, emotional stories are intrusive or unwanted. We haven't even got into the point that - sometimes -  what some viewers find prurient is actually therapeutic.

 

by peasantpete on March 14, 2011
peasantpete

C'mon you media denizens only care about being publicly noticed.

Your employers only care about filling in annoying gaps between revenue earning advertisements.

Of course visual people turn into papparazi.

Shareholders thrive on misery.

Go figure.

Drop the faux ethical discussion.

Misery makes millions.

End of story.

by Nicole on March 14, 2011
Nicole

It seems that my posts have generated a lot of questions so I will address them in stages.  First, Mr Burns. 

 

1.  My evidence.  I have recently finished co-editing and co-writing England’s main privacy text, Tugendhat and Christie’s Law of Privacy and the Media.  The book is 800 pages long and refers to over 1000 cases on the law of privacy as it relates to the media.  I have read most of them.  The cases are mainly from the UK (whose law New Zealand generally follows) but also the US, New Zealand, Australia, Canada, Ireland, South Africa, France, Germany, European Court of Human Rights and Scotland.  My instinct about where courts are likely to draw the line in New Zealand is informed by the results and reasoning in  those cases and the decisions of the NZ courts and Broadcasting Standards Authority.  My co-authors are London media law barristers who act for both media and non-media clients.  Incidentally, the book is a bargain at 250 quid… http://ukcatalogue.oup.com/product/9780199581153.do

Perhaps I should have mentioned this before but seemed a bit inappropriate on a blog.

 

2.  Yes, I have been in a courtroom but I am an academic and so have nothing to gain from taking one position or another (except that if I get it wrong no-one will publish me).  I don’t think that journalists are motivated by money but am told  that there can be commercial and time pressures on them to do things that even they feel uncomfortable about.

 

3.  I am aware of the French law of privacy.  It is the far end of the scale of protection and it has little influence on English or New Zealand law. Like most Commonwealth writers in this area, I think it is too restrictive of freedom of expression.  I too find the judgments referred to in your link very problematic.  I cannot begin to imagine the New Zealand courts applying the Hosking tort in that way.

 

4. The girl in Vietman.  I am aware of the girl’s subsequent life.  I have been asked about that photo a lot and there is a lot that could be said about it.  I will limit myself to two points. 

 

a.  The audience for that image was the American public in whose name the napalm was being dropped.  It was a call to action – that photographer was saying, vote against this.  Images of abuse of prisoners at Abu Ghraib might be modern equivalents (although in the photos I saw the faces of those men were pixellated).  I can see no equivalent call to arms in the images of victims of ChCh quake or of grieving Pike River relatives.  They might have encouraging people to donate money or support the recovery effort  but there was no war to put a stop to or vote against – much as we would like to do that to earthquakes.

 

b.  That photo was published a long way from that girl’s community.  In the 1970s, that brought with it a large degree of anonymity.  (The subsequent events leading to that particular girl’s identification were exceptional.)  Distance should not be enough on its own to justify intrusions of privacy.  (I note in this regard that a complaint to the BSA about the disclosure of images of Fijian sex trade victims was upheld by the BSA in ECPAT) but it might make the intrusion less severe. 

 

Would I have published it?  Given the radically different world in which we now live, I find that difficult to answer.  I do not deny that it was one of journalism’s finest hours.  Like the French law though, I think the impact it had is very much at the non-typical end of things.  I don’t think that image or its effects have a lot to tell us about whether we should publish pictures of grieving relatives after Pike River or the quake.

by william blake on March 15, 2011
william blake

Dr Moreham, your second point about the napalmed girl seems to be stating that if an ‘intrusive’ image is to be published there must be some concrete and almost quantifiable motivation. That image was of a man-made disaster and required that kind of interrogation. I think that there are human questions that need answering from the natural disaster that Christchurch / New Zealand experienced that excuses the intrusions.

I can’t help thinking of the urban myth that sprang up immediately after the quake, of the house that lost an entire wall, exposing someone’s marijuana crop, an embarrassing intrusion that the owner would not want published but necessarily amusing.


Peasant, at the other end of the ‘human need - voyuerism' scale, is the dark exploitation of misery, but lamely trying to shut down discussion of where the boundary lies, exposes a closed and fearful state of mind.

by Iain Butler on March 15, 2011
Iain Butler

First, why did officials not take them aside to a private place to talk with them?

I can think of three problems with this question:

1: the families of trapped people were waiting by the buildings precisly to hear news of their loved ones, so even the act of shifting them off somewhere 'quiet' is in itself telling them something.

2: you might have noticed there was a bit going at the time. Rescuers and other emergency services workers will have had multiple priorities, and it's unlikely that privacy entered the equation much

3: when does the onus on privacy fall on the people being recorded? Bearing in mind the area where the Mannings and others were waiting was under strict cordon, it could already be considered a 'somewhere private', so why it is assumed that everything that goes on there is broadcastable by right?

Yes, that moment perhaps should be sacred. But when, then, does it become ok to start shooting again?

I think reporters, photographers and camera operators mostly know where the line is. I saw 3 News footage of a body being removed from one of the collapsed buildings. As soon as Army medics began lifting the sheet that covered it, the camera hastily pulled away.

There's no need to withdraw from the argument that some moments that happen in public are in fact private just because you can't delineate the exact point where one becomes the other.

by Steven Price on March 15, 2011
Steven Price

Just one quick point. It doesn't make much sense to say the earthquake coverage is a far cry from the Hosking situation when you're disagreeing with Nicole's analysis. The Hoskings lost. But along the way, the Court of Appeal set out the boundaries of the new tort. As Nicole points out, the court certainly does contemplate liability in public places in some instances.

I think this thread is mostly a discussion about the ethics. But if anyone wants to take Nicole on about the law, they should read the case first.

by Paul Corrigan on March 15, 2011
Paul Corrigan

Dr Moreham writes that Nick Ut's photo of the naked girl in Vietnam after a napalm attack  " ... was a call to action – that photographer was saying, vote against this".

Was he now? How does she know that? I have never seen such an assertion before.

She is correct that the photograph was intended for an American audience. That's because The Associated Press and other big news agencies such as Reuters and United Press International tend to aim their stories at American audiences. Editors and sub-editors in New Zealand recognise that early, and bear that in mind when they work on stories.

But that the photo was a call to action? Has the photographer Nick Ut said that? In June 1972 Ut was on a road taking photos of a battle further along between South Vietnamese soldiers and the North Vietnamese. The napalm was dropped by an American-built, South Vietnamese Air Force, propeller-driven plane. The napalm was not dropped by American aircraft, as has often commonly been said. The South pilots mistakenly thought they were napalming North troops.

I imagine that 'a call to action' was the last thing on Ut's mind a few hundred yards from a battle and as he focused his camera on the children fleeing towards him, including the naked little girl. That's asking a lot of a guy not far from the heat and noise of a battle, and exposing himself to the possibility of being shot, bombed, napalmed or rocketed by mistake by North or South.

So, did Ut say it, and if so, when? I bet it wasn't on June 15, 1972.

Did the editors on America's newspapers and in their TV networks publish the photo and air the TV footage of the same event as a 'call to arms', or did they run it because it was a damned dramatic picture of a child harmed by war? By the way, over the years of the Vietnam War there were lots of photos of children harmed by war. But this one was strikingly different. I remember at the time thinking how could she have survived the air attack.

I have not much wanted to post on this thread since the weekend lest it seem that I was getting personal. Yet I was surprised at how much Dr Moreham in her earlier posts was prepared to make judgments and attribute motives to the actions of the media -- using the loaded language that Tim Watkin has mentioned -- without proof. She is an LLD, has studied, according to information on Victoria University's web site, at Gonville and Caius College, Cambridge University. I thought it was basic for people with legal training that they had to prove the assertions they made. I've sat in courtrooms where judges have hammered that to counsel.

Dr Moreham has made plain her distaste and disapproval of some things journalists do, particularly in the middle of big news events such as the earthquake on February 22.

It became clear, too, that she had little idea of what she was talking about. By that I mean it becomes clear she has not had to do that which she criticises and comments on. Unlike media people she does not appear to have gathered news and then had to make decisions on how to disseminate it to readers, viewers, and listeners. I have, although not in the circumstances that rumbled across Christchurch three weeks ago. I have selected photos of people harmed and afflicted by war and catastrophe. I can honestly say that exploiting anybody's plight was the last thing on my mind.

And this is another thing: journalists -- well, most I have met and worked with anyway -- don't think about boosting the circulation or the ratings as they go about their work. What attracts people to journalism is the story, the story, the story, the story. It's the telling of the story by however they can to whoever they can. Unlike Dr Moreham I can say that from experience; it's why I wanted to be a reporter. Pretty much every journalist I've met it's the same. That's why I had an understanding of the pressures the media were under in Christchurch, and how impressed I was that those who could got on and did their job to get the story out to the rest of us.

I must return to the Hosking case. It was irrelevant to the circumstances in Christchurch. The girls were not in the middle of a news event, they were not newsworthy, and they were young children. Yet they could have become newsworthy if they were in the middle of a crumbling Christchurch street on February 22 and they or one of them were being carried by their well-known father or someone else through the rubble, as the little girl called Nevada was when her father ran to her school and got her out of the classroom.

Dr Moreham helpfully cites part of the Court of Appeal judgment concerning the girls. Yet even the exact words of the judgment she cites seem to be anything other than cut-and-dried: " ... Cases such as Peck v United Kingdom [broadcast of footage of a man filmed trying to commit suicide on a public street] and perhaps Campbell [Naomi Campbell emerging from a Narcotics Anonymous meeting] qualify  this to some extent, so that in exceptional cases a person might be entitled to restrain additional publicity being given to the fact that they were present on the street in particular circumstances." (My emphases)

Dr Moreham goes on to say: "The Court in Peck says that a person in a vulnerable situation is entitled to privacy protection even if he or she is in a public place.  In this dicta, the majority in Hosking were accepting that rule is also part of our law."

It seems to me that Their Honours The Queen's Judges left themselves open to some flexibility: exceptional, particular, might, to some extent. The onus would appear to be on anyone complaining. I could not imagine anyone begrudging two small girls of no news interest at all their privacy in the normal course.

It might be interesting to see what the judges would come up with concerning images and footage used in Christchurch on February 22 and the aftermath.

by on March 15, 2011
Anonymous

Thanks for your well reasoned response Doctor. I understand where you’re coming from - but believe it points to the biggest problem censorship poses.

 

In saying the Viet Nam photo was one of exceptional circumstances you seem to feel Christchurch wasn’t - I’m not trying to say you are heartless, just that you’re not thinking it through - we are about to have a massive rethink of our building code in this country. Thousands of landlords, billions of dollars, hundreds of lives and our heritage are all at stake. With no pictures of grief, I believe the discussion would be very one sided in areas unaffected by the quake.

 

Building owners are going to do all they can to retain the status quo in what is in effect a massive gamble. As users of these buildings, the public needs to know exactly what happens when they choose to work in them.

 

I find images of grief much more affecting than images of squashed bodies. I cried as people cried. I have changed my attitudes to the beautiful old buildings I live and work in and around. What are we going to do about them? - I don’t know. But I do know that I have a better understanding of the consequence of non-action.

 

The Sunday programme had a great little piece on a new strategy in Australia to combat bad driving amongst kids...they weren’t using gory photos - they were confronting kids with grief. Playing on empathy - it may not work - but it looked pretty effective to me.

 

We do need protection from bad media, but except in REALLY exceptional circumstances, I don’t think the law is the best judge of what’s in our best interest to see - but I do believe well-trained, well resourced media can make a pretty good job of trying. Journalism is more an art than a prescribed science.

 

PS I hope this doesn’t get published too many times - the Pundit servers seem to be having a few problems today

by stuart munro on March 15, 2011
stuart munro

 I don’t think the law is the best judge...

Journalists are not alone in supposing that the law is not the best judge of the public interest. Felons and financiers also believe their own private views ought to prevail.

Like democracy, the law is asinine. But is still the best thing we have available.

by Steven Price on March 15, 2011
Steven Price

Wow, Craig. You move remarkably quickly from arguing that Nicole doesn't know what she's talking about because she hasn't had reporting experience to arguing that she's wrong about the law. What's your legal experience, pray tell?

You still insist that Hosking has nothing to do with privacy at Christchurch. Yet even on your own analysis, it might. (Have you read the case, by the way? Hint: there's some stuff in it to support your argument. And some to support hers.)

I doubt anyone will sue. But if they do, I have little doubt that the judges will take the case more seriously than you do.

Oh, and that was a cheap shot about lawyers and proof. This is a blog forum not a courtroom.

by Tim Watkin on March 15, 2011
Tim Watkin

Sorry if there have been some tech delays, Mr Burns.

What a fascinating discussion (apart from the peasants amongst us!). Iain, good points made. You're right that the authorities were in the midst of "multiple priorities". So were the journalists, but if consider their decisions in that light, it's quite right to consider the authorities with at least as much sympathy. And you're right, the shots have been largely restrained, which is back to where we started this discussion.

Nicole, thanks for coming. You're getting plenty of challenge here!

I'm really interested in your two points re the photo of the napalmed Vietnamese girl. The idea that publication was more ok because it was a long way from her community is becoming increasingly undermined by technology. Global media and the internet trumps this, as images can be published in one country and pop up in numerous others before you know it.

I'd also ask why a foreign audience should get a better understanding of something going on in any particular country than the people of that country.

Your other point is that the photo was "a call to action". As Paul C says, I don't know the photographer's intention, but your comment is interesting from my point of view because it gives a higher ethical value to advocacy journalism than to objective fact-telling. Usually it's the reverse in this business. We get damned for taking sides and are told to stick to the facts. That photo would have been run by editors for the power of the truth it told, not to tell people how to vote or how to view the war. That ain't our job.

However, I do see a different kind of 'call to action' in both that photo and the quake coverage - it's the call to see and therefore get alongside your fellow humans, to feel for someone other than those you know, and to think hard about what's happening in the world.

 Finally, you ask about whether you'd have published the Vietnamese girl's picture. Good question. Think about the goal of telling truth; about the damage you do by NOT publishing it; and the precedent that sets. Do you only ever print pictures of kittens and rainbows?

But that's a big, generational picture. Most decisions made day-to-day by journs are about much smaller truths, less dramatic pieces of life's jigsaw. The question is whether you publish the everyday 'inconvenient truths', because without that mundane commitment to the trade, you'll never get the chance to run the big pictures. Most journalistic 'calls to action', or ways that journalists challenge and inform, are via small chips into the block, story after story, not big one-offs.

by Nicole on March 15, 2011
Nicole

Hi Tim.  Here is my response to (some) of your comments.  It seems that the more we drill down on our respective positions the more commonality we find.  Since this is all getting quite long, I have organised my comments into headings:

 

1.         The framework for analysis – the theory of competing rights

 

To my mind, by far the most important issue in this discussion of photographs of individuals caught up in disasters is how we frame our analysis of the competition between privacy and free speech interests.  The law sets out a clear framework for doing this.  This is a situation where two human rights potentially collide.  On the one hand is the individual’s right to privacy.  On the other is individual freedom of expression and its corollary, the public’s right to know.  Where human rights come into conflict, the law weighs the two rights against each other.  This is not done in a general “which is more important, privacy or freedom of expression?” kind of way.  Instead, the law applies what is sometimes called an “intense focus”.  It asks, “Is there an interference with the individual’s privacy here and if so, how serious is it?”  A wide range of factors will inform that assessment eg nature of the activity the claimant was engaged in, where s/he was, who s/he was (public figure or ordinary member of the public), age, vulnerability etc.  The court will then assess the importance of the competing free speech right.  Although courts accept the need for editorial latitude, they will consider things like the value of the image to a matter of public debate, the options available to the defendant who published the image etc.

 

So far, the discussion on this blog has focussed almost entirely on just one half of this debate – whether there is public appetite for these images or not, whether the media needs to publish them etc.  In contrast, there has been almost no discussion of the effect that these publications have on the individuals who appear in them.  This should be the starting point for any discussion.  We should be arguing about whether publishing these images without consent is an affront to the dignity of those who appear in them, whether doing that causes distress, whether they damage reputation or cause some other harm etc. 

 

This is why I raised that concern about your use of the language of contract – “negotiating” a new deal with the public etc – rather than of competing rights(acknowledging that you were not intending to use these phrases as legal terms of art).  The point of rights theory is that it prevents the majority (in this case the viewing public and/or the media) from agreeing to take away the rights of the minority (those who appear in these images) without a very good reason. 

 

2.         Where should the line be drawn?

 

I am pleased that my assessment of where courts are likely to draw the line between privacy and the public right to know corresponds roughly with where you think the ethical line falls.  To recap, I suggested that the courts would and should draw a line between images of injured/grief-stricken people caught up in the event itself (eg people being rescued, receiving assistance, etc) and images of people experiencing grief at a step removed from the hurly-burly eg at funerals, vigils and receiving news.  (I should perhaps note that although we have been talking about the earthquake in this discussion, my mind is actually more often turning to the coverage of the Pike River disaster).  I accept that the distinction between ‘action’ and ‘aftermath’ is itself a question of degree but, the law has to establish rules as clearly as it can, and to my mind there is a line there that most would recognise. 

 

3.         Media’s awareness of the law of privacy

 

I am interested that you said that you think that most journalists think that a person is in a public place is fair game.  Concern that there was insufficient awareness of public-place privacy rights was my principal reason for getting involved in this debate.  Sounds like we both agree that there needs to be more discussion of it. 

 

4.         The degree of the public interest in images which focus on the grief of family members (at funerals, vigils, public information meetings etc)

 

In my view, the public interest in images which focus exclusively on the grief of family members at funerals, vigils, public information meetings etc (ie away from the ‘action’) is low.  I am thinking here of things like the Manning children being told that their mother had died, images of grieving quake relatives at funerals, the Pike River families emerging from the meeting at which they were told that all hope was lost.  Courts would be likely to find that these individuals’ privacy was breached even though they were in a public places at the time (see above for the relevant passage from Hosking).  I don’t think that courts would regard a desire to create an emotional connection with the event or “tell the story” as enough on its own to outweigh that interest.

 

I note that this is the argument that has probably generated the strongest reaction from the other commentators on this blog – hence the many arguments about ‘truth’ etc.  I agree that these things are important but refer back to point 1 about the need for these arguments to be sufficiently strong to outweigh the individual’s privacy rights and any harm invasion of them might cause.  I am not convinced that the courts would think so.

 

5.         Why did I assume that the people in the photos of people suffering grief in the aftermath of the quake didn’t consent to their publication?

 

For three reasons (incorporating Pike River as well):

i.          Because some of them can be seen asking photographers to leave.  The footage of the Pike River families shows a number of relatives telling reporters to f*%k off.

ii.          I have been told by people closely associated with those who appeared in some of these photos that they did not consent to their publication.

iii.         I wrote to the editor of a weekly current affairs magazine and asked her if the Manning children and/or other victims whose images appeared in her magazine gave their consent or were informed that the images would be used.  She replied to say that she had “no comment to make” regarding my questions.  I wrote back to say that I would assume in the absence of any comment to the contrary that consent was not given.  I did not here anything more. 

 

I acknowledge your point though that some people find it cathartic to share their grief with the nation.  Wouldn’t it be a win-win then if the media were to use these people to communicate the emotional toll of a disaster rather than people who wish to be left alone (noting that I am talking here only of ‘non-action’ photographs of funerals etc)?

 

6.         Other blogs

 

If anyone is interested, the question of privacy in public places is the subject of a discussion posted on Inforrm’s English media law blog just today: http://inforrm.wordpress.com/2011/03/12/privates-on-parade-privacy-in-pu...

 

 

 

by on March 16, 2011
Anonymous

"journalists -- well, most I have met and worked with anyway -- don't think about boosting the circulation or the ratings as they go about their work."

Hmmm...Paul, I think you may be wrong there...which is where I leave one side of the debate to take up another.

I've attended hundreds of editorial meetings with journalists and the almost exclusive reason for those meetings was circulation/sales.

I don't believe media should be restricted in telling the news - I do however believe they should be restricted in exploiting it.

Complicated?...very.

My previous statement - "if it bleeds - it leads" is unfortunately prevalent in the minds of editors everywhere - my experience is in newspapers, but I assume it is relevant to all news organisations where their responsibilities are to shareholders - not the public. The panic at the moment in failing newsrooms as circulation plummets is a dominant emotion.

Christchurch was that rare event when none of that mattered anymore.

National Radio - although not faultless (I can't stand the way Kathryn Ryan says "Scissooors) - does a good job of presenting news with dignity. The reason? Not the law - but the structure and experience of the organisation. An organisation whose only shareholders are the listeners.

Again - this is the second time I've written this...

 

by Nicole on March 16, 2011
Nicole

Hi Paul. Just a couple of responses.

1. Perhaps I didn't make it clear enough in my earlier posts that I am talking here about specific types of coverage - images which focus on grief/suffering etc which is removed from the wider picture of what is going on.  I agree that an image of a father running through Cashel St with his daughter is not a breach of privacy.  I also agree that was a compelling image.  I had tried to make that general point clear in the post of 13 March. 

2. Re what the court was doing in Hosking.  Just to clarify - as Steven pointed out, Hosking lost that case.  The Court nonetheless went out of its way to set out the scope of the tort and to say that there was an exception to the public places rule.  That might not look very significant to a lay observer but dicta like that from the Court of Appeal is very influential.  Since then, two members of the Supreme Court have suggested that the highly offensive publicity part of the Hosking test should be removed.  This would make it easier for claimants to sue.  The trend has therefore tended to be in the direction of more protection, not less.  You are right that the onus is on the individual to show a privacy right.  Once he or she has done that, the onus is on the defendant to show that it was outweighed.

3. I am not sure where on these comments I said that journalists set out with an intention to exploit individuals.  On the contrary, I have always assumed that they are individuals seeking to do their jobs well in difficult circumstances.  As I acknowledged at the beginning of the Court Report, I also think that most of the ChCh earthquake coverage was very good.  But the law doesn't tend to get involved when people get things right - it comes in to discuss when and whether they might have overstepped the mark.  My concern is that the effect of publication of individuals can be forgotten in the desire to tell the story.  We as a society have a highly developed free speech discourse but are only just beginning to pay attention to privacy rights even though they too have a recognised democratic and individual importance.  My aim is to even up the debate a bit.  Cases tell of situations where individuals learn for the first time of a TV programme focussing on their accident when watching TV in hospital or at a friend’s place.  My aim is to ensure that their objections have some kind of a voice.  If you are telling me that journalists are already highly engaged with issues surrounding the likely impact of their work on individual dignity then I am very glad to hear it.

4.  On your comment that I don’t know what I am talking about because I have not worked in a newsroom, do you always insist that people asking questions of others have worked in the industry they are criticising?  Presumably journalists are allowed to call financiers to account even if they haven’t worked for a bank.  And lawyers are entitled to regulate, say against tax avoidance, even though they haven’t worked as a tax adviser.  The law of contempt and defamation have been developed by individuals who have not necessarily worked in a newsroom; although perhaps you have objections to those too.

5. I would refer you to my academic publications if you wish to see references and/or evidence for my views.

6.  Regarding your desire to avoid getting personal,  I have found your posts rather angry.  I note too that whilst you know who I am and have used the internet to research my background and make assumptions about my life experience, I do not know who you are or what you do.  Still, that’s freedom of expression and I am resigned to weathering it in the hope that something constructive is coming from this discussion.

 

by Steven Price on March 16, 2011
Steven Price

Oops, I meant Paul not Craig in my last post. Don't know where I got that from.

Readers who have delved this deeply into the thread  might care to read the exchange I had with Nicole over the privacy rights of Pike River families in a series of posts at medialawjournal.co.nz beginning here.

by Nicole on March 16, 2011
Nicole

Tim (and perhaps also Paul and Mr Burns), Just to lower the tone for a minute, a note on my use of the phrase ‘grief-porn’.  At the beginning of this debate I was under the (clearly misguided) impression that ‘something-porn’ was a fairly ubiquitous slang expression relating to films and photos.  For example, I have recently heard the film The Lord of the Rings described as ‘New Zealand-porn’ and photos in the lead up to Prince William’s wedding as ‘royalty-porn’.  I was being facetious and imprecise in using the phrase but I did not intend it to be as offensive as it evidently (and understandably) was.  I will put that one in the 'jokes not to make again' file...

by on March 17, 2011
Anonymous

Doctor: You have described the many journalists who've just busted their *rses trying to tell the country a story that should be told that they are pornographers for doing so.

You seem slightly bemused that some journos have taken offence.

For someone who appears to be about to spend much time and effort involving yourself in potentially restricting the craft of journalism, you seem to have very little insight into it...I understand why you're doing it and believe you have some valid views.

I am not trying to be smart here...can I suggest you go and spend some time in a newsroom or two - they are full of interesting people. If you can keep your prejudices under control, you might learn something and produce something worthy.

Good luck.

by Max on March 18, 2011
Max

Without wishing particularly to prolong an already extensive debate - or to cause the evidently sensitive members of the media further professional offence - there is a fundamental mismatch here between Dr Moreham's contributions, which are drawn from the sophisticated - although still developing - body of legal precedent across jurisdictions, and the counterarguments that Mr Watkin and others have advanced, which seem to revolve around the theme that no-one but a journalist can, or should even dare to, assess whether a particular intrusion into personal privacy is lawful, let alone moral.

The insistence of several commentators on journalistic realism, as against claimed legal naivety, is simply not tenable. First, and as Mr Watkins accepts, there is an unavoidable incentive for media outlets to pursue audience share that can wholly obscure or distort journalists' own perspectives, as privacy, defamation and contempt cases bear out. It is also worth bearing in mind that - in addition to the substantial contributions of scholars such as Dr Moreham - the caselaw itself has had the benefit of extensive evidence and submissions on behalf of media organisations: Hosking involved not only the defendant journalist and publisher, but also the Commonwealth Press Union and another major publisher, while the United Kingdom cases have been extremely hard fought by all parties.

In any case, the quite straightforward point is that some of the images broadcast or published are highly intrusive and the taking and publication of those images plainly caused - and will continue to cause - suffering to already vulnerable and traumatised people. Publication can only be justified where a correspondingly high level of public interest that warrant that intrusion and that suffering.

While the law of privacy is still in flux, particularly given the very limited body of caselaw in New Zealand, that assessment seems - the bluster and the frankly contemptible put-downs of some of the commentators above - actually pretty straightforward here: clearly, scenes of devastation in Christchurch are central to conveying these horrific events and some kinds of images of survivors or victims may well form a necessary part of that narrative, and - contrary to Mr Watkin's several attempts to slur the point - Dr Moreham has not suggested otherwise.

The point is that it is at least very difficult, if not impossible, to see - and,  certainly, neither the original post nor the critical comments above are able to advance - any additional, let alone sufficient, public benefit in showing the named and identifiable children of disaster victims at moments of extreme grief. Unlike the examples of the napalmed child or of concentration camp victims or survivors, which did convey extraordinary messages that were simply beyond our ability otherwise to comprehend, these children and their grief add only prurience and the most superficial and, yes, spurious form of shock value.

by Steven Price on March 18, 2011
Steven Price

Yes, Nicole, Mr Burns is right. You should spend some time in a newsroom, and become inculcated with journalistic values, so that you too can lose perspective on the line between the drive to get the story, the storylines that count as "news", the journalist's view of the public interest, the need for pictures and the battle for ratings - as against basic human decency and the harms to others that may be caused.

Perhaps Mr Burns might like to explain why having some independence from a newsroom and some distance in weighing the interests involved somehow disqualifies Nicole from making a rational assessment of the balance being struck here? What is it that she might learn from the newsroom that might better help her understand the public interest, or the harms that might  be caused by this sort of reporting? For what it's worth, I've spent plenty of time in newsrooms, and I still think Nicole is making good points.

by william blake on March 18, 2011
william blake

@Max, the thread has covered the point that there is a line of intrusivness and it has been crossed on a number of occasions, where do you think the line should be?

@Nicole, I think the term '---porn', while offensive in this context is still a useful one. It is redolent of 1980's feminist polemics and the debate between pornography and art. This seems to be a similar issue, on the one hand a potential for exploitation and economic gain and on the other a helpful and insightful image that has cultural value.

by Paul Corrigan on March 18, 2011
Paul Corrigan

In a post on Wednesday Nicole (OK, we’re on first-name terms now) addressed several questions to me.

In no particular order …

Tim Watkin’s reply to you on March 14:

You use loaded language - media who "use them [victims] for their own ends" and victims being "sacrificed". That's telling. That's the language of an individual who feels expolited. If you took the public interest point of view, you'd use other language.

You seem to be working from an assumption that the media are exploiters, rather than story-tellers; heartless rathers than reporters. What if you think about these images as pieces of history, as records of a moment, as truth? If you ascribe different motives, you might be more sympathetic to the outcomes.

Because unlike the week-to-week grist of a woman's magazine, the reportage of the earthquake has not been driven by commerce. To hint otherwise is untrue from my experience, and unfair to the work of good reporters.

You talk about "grief porn" by the third day.

 

I want to come back to ‘grief porn’ in a minute.

Earlier, on March 12, your first post, you said this:

 

Perhaps I am over-estimating my compatriots but I have spoken to at least half a dozen people this week (all of them female, incidentally) who have said that they completely switched off from the media coverage because of its prurience [my emphasis].

First the noun ‘prurience’: it is having or encouraging an excessive interest in sexual matters. That’s what two of my dictionaries say. I suspect you might not have chosen the right word, but you did pick one that connotes distaste and disapproval. That’s what I infer from your use of it. You and your friends disapproved of what they were watching.

‘Grief porn’: when this expression came into the thread I did ask what it meant. ‘Mr Burns’ got there a bit before me, but I looked at my trusty Concise Oxford. ‘Porn’ is the informal of pornography, which the dictionary defines as “printed or visual material intended to stimulate sexual excitement”. The dictionary offers a subtle difference in ‘porn’: “television programmes, books, etc. regarded as catering for an obsessive interest in a particular subject.”

Now ‘grief’: “intense sorrow, especially caused by someone’s death. An instance or cause of intense sorrow.”

So, if we take all that together, you seem to be saying that a person’s or persons’ sorrow can cause sexual excitement in others. I’m sure you’re not really saying that, but like with ‘obsessive interest’ it is a loaded, disapproving expression, and it implies that that’s what you think the media were doing.

The Hosking case: I guess it would have helped if it had been made clear at the beginning that the Hoskings had lost. I thought they had, but when it was introduced here I wondered that in my creeping dotage it must have been otherwise. Thank you for your clarifications.

Experience: You do make good points in reply. But I think that if you understand from experience not just what people are doing, but why they might do things then we can avoid misunderstanding. As an example, you’d be rightfully scornful if I tried to comment on how you taught your law classes.

This is not being gratuitous, Nicole. My daily newspaper news-gathering days are long over. Although my experience is not on a scale of the earthquakes at Christchurch I do know what it is like to feel the rush of getting the story and telling it. I’ve worked with photographers and cameramen. I’ve been in the position of sub-editing others’ stories and selecting photos for print. I’ve known photographers to come back from a job thinking they hadn’t got a very good shot, until they saw the print. I understand that was the case with Nick Ut, and his photo of the burned little girl. Anyone may google an account by Horst Faas on how the photo made it to the world. Sometimes a judicious crop can turn an ordinary image into an outstanding one.

To Steven Price: I might well be showing reckless temerity discussing this with an LLD and alumni of Cambridge. But I like things to make sense. And if something on a plain reading of words doesn’t make sense to me then I ask why. You accuse me of a cheap shot to Nicole. Rather, I thought I was trying to convey something important. Because if she knew a bit more about that ‘other side’, then she wouldn’t have made her comments about Nick Ut’s photo being ‘a call to arms’. Ut was intending no such thing.

You reprove me for my comments about proof and say that this is a blog. So it is. But I think that if you are going to accuse people and attribute motives to them just because you think that’s why they might be doing something [such as broadcasting film footage of them in an earthquake zone] then it is reasonable to challenge that and ask, in effect: ‘how do you know?’

Also, I was trying to respect the blog owner’s wish that we should try to debate with argument.

As for my legal experience, and ‘pray tell’, too! I’m disappointed, Steven. I thought you were better than that. That condescending question – and with the ‘pray tell’ at the end to just emphasise that we should remember our genuflected and forelock-tugging station – has been asked by lawyers of the unlawyerly since before I was a boy. I am happy to reply that I have none at all, as I’m sure you know. The forelock is not as tuggable as it once was, and the knees groan a little too loudly for the genuflection: in other words, I’m too old to care now.

To ‘Mr Burns’: I appreciate you know what I’m talking about. By the way, I’m familiar with ‘if it bleeds, it leads’. But I never heard it.

‘The media’ are people, too. Sometimes they get it right, others they don’t. Some people in ‘the media’ are venal, some would sell their grandmothers for the sake of a scoop. Others will quietly not include some quotes in a story because they can foresee the detrimental effects those quotes would have, not only on the person making them, but also on the person’s family and community. It takes all sorts.

by Nathan on March 19, 2011
Nathan

Tim Watkin asks: Is my argument “spurious”? Has the media overstepped in reporting the Christchurch quake?

 

1. Firstly, “yes” the media has overstepped. In reporting the Christchurch quake the mainstream media (newspapers/the Listener/major TV channels) repeatedly used images of the Manning children being told that their mother had just died. This overstepped both a legal and ethical line.

 

2.Secondly, “yes” your arguments are “spurious”. Your arguments are that:

 

(a) “[T]his [is] a renegotiation of the relationship between the media and ordinary New Zealanders in the midst of extraordinary events.”

(b) “[T]he media don't get to choose the truth … if we honour truth and accurate reportage …  then we can't shy away from pain and trauma.”

 (c) “[T] the public interest and demands of history outweigh the individual rights of those few unfortunate enough to have been forced to face death and their own deep personal loss in a national disaster that, unquestionably, also belongs to us all.”

(d) “Most people get to grieve in private, with no cameras about. And that is what we'd all desire for ourselves and our families. But if your tragedy is a public one, especially an historic one, then it seems your tragedy is compounded by having to share it. That is unfair and possibly decided without consent, but it is also inevitable and arguably for the greater good.”

3.  On a legal level, these arguments suggested that you did not know that:

 

(a) the legal debate about where to draw the line as to what constitutes a wrongful invasion of privacy in a public space has been going on internationally for over a century (starting with the Warren and Brandeis article “The Right to Privacy” in the 1890 Harvard Law Review which is freely available online), and has heated up greatly in the last decade;

 

(b) the framework for that debate has been set out clearly by both the courts and academics in an extensive literature (usefully summarised by Dr Moreham above).  The primary argument that you appear to make (ie the media arbitrarily gets to determine the result of the “negotiation” as to where lines should be drawn) has never been made – let alone accepted – by anyone;

 

(c) the current answer as to where the draw the line has been indicated in cases such as Hosking such that, as summarised by Dr Moreham, - “the courts would and should draw a line between images of injured/grief-stricken people caught up in the event itself (eg people being rescued, receiving assistance, etc) and images of people experiencing grief at a step removed from the hurly-burly eg at funerals, vigils and receiving news”; and, accordingly

 

(d) the Manning children (along with, say, the families of the Pike River victims) would almost certainly succeed in any action for breach of privacy that they chose to bring against any of the media institutions which published their photographs without their consent (acknowledging that I have no knowledge of the factual consent issue).

 

 

4. On an ethical level, your arguments suggest that the media does not, and as a matter of editorial policy should not, allow those who have suffered from a tragedy to “grieve in private”. This is so even if, in your words, “that is what we’d all desire for ourselves and our families.”  You also describe this editorial choice as “inevitable”. That is a deeply concerning abdication of editorial responsibility by one in a powerful position as a leading thinker and player in New Zealand’s fourth estate. This is particularly so given that:

 

(a)  the media chooses what to publish without a realistic fear of litigation from anyone other than the extremely wealthy; and, as you acknowledge

 

(b) the “tragedy is compounded by having to share it.”

 

5. Unfortunately, your views clearly suggest a highhanded disregard for, again in your words, the “individual rights of those few unfortunate enough to have been forced to face death and their own deep personal loss.”  I fully acknowledge the vital importance of free speech in reporting truth  - and also allowing for individual self expression,  another core value underlying free speech theory. However,  it appears that the law needs to be strong in drawing lines for the media as to what it can and cannot appropriately do in overriding individual rights. I agree this is a form of censorship – like the laws of defamation, contempt or indeed any other form of regulation. However, the drawing of such a line is a justified limitation on free speech  because, in the interests of the vulnerable, strongly self-empowering views such as the ones you express above must be checked.  At the moment you arrogate power to yourself over those vulnerable individuals.

 

6. Further, I note that, as well illustrating a dismissive view as to the significance of individuals’ legal rights to be left alone in extremely limited circumstances, which in no way suggest any meaningful curtailment of free speech, the comments above suggest an alarming – and telling - defensiveness on the part of certain journalists to any criticism of the media.

 

7. Dr Moreham, a world expert in this field, has, in a fairly restrained manner given the context of the Manning/Pike River pictures, suggested where an appropriate balance between the rights of free speech, along with the public right to know, might be aligned with an individual’s rights to be left alone.

 

8. In response to her constructive comments (both above and on the Court Report) she has been told that she is “naïve” (Watkin 11/3), asked “do you ever go to a court room” (Burns, 13/3) , told “she had little idea of what she was talking about” (Corrigan 15/3), and to “go and spend some time in a newsroom or two” (Burns 17/3).  I make the obvious observation that these comments, along with numerous others above, are breathtakingly patronising – particularly from people who self evidently have much less expertise in this area than Dr Moreham. I also note that they are made at the same time as showing an embarrassingly un self –aware and thin-skinned sensitivity shown to the expression “grief-porn”. In the face of genuine freedom of speech and self expression being exercised in the furtherance of a significant debate, gentlemen, it appears that you suggest that we should have to significantly restrain our language for the slight fear that we might cause offence.  That way true censorship lies. I hope that the irony, at least when pointed out, is not lost on you. Overall, all this points to a disappointing reluctance on the part of the media (or at least certain journalists) to listen to constructive criticism of their industry. In turn, this raises serious questions about the inability of that most powerful industry (like, in fairness, every other industry) to self regulate.

 

9. Fortunately, it will ultimately be judges,  the independent referees with no skin in this game, who will have final say on what is an appropriate balance between free speech and individual privacy rights.  This must be preferable to you being a judge in your own cause as you, and your colleagues, appear to claim you are entitled to be.  

 

10. As noted above, everyone acknowledges the vital importance of press freedom and the significance of being able to report truthfully on all matters of genuine public interest – including, of course, this tragic earthquake. Generally, I applaud the media for the excellent and highly responsible way in which it has done that (including the heartbreaking interviews with those who wanted to tell their story). However, if the media cannot exercise responsible editorial judgment, because it perceives publication of particularly intrusive images, such as images of children being told of their mother’s death, as “inevitable”, that judgment will eventually be imposed upon it.

 

11. Having said all that, thanks, Tim, for being almost unique in being a non-radio media entity willing to engage in this sort of debate in a public forum. Given what I understand to be the feeling on the street (ie outside the context of the media talking to itself) about the Manning/Pike River pictures (ie disgust and disappointment that our media would publish them) that is most brave.

 

by rich_design on March 19, 2011
rich_design

Great to see such a vigorous debate on this topic. It's obviously a very delicate one that needs to be discussed.

In summary, it seems that the law does actually take into account precisely this debate. It tries to balance the needs of the media to do their job and the individual's right to privacy - two directly opposing natural rights, both of which are incredibly important. I don't envy the job of a judge having to make a call on where to draw the line (although I realise that the whole of the legal process is designed to facilitate this kind of difficult decision so it isn't based solely on their judgment). It really doesn't seem that the law takes sides, and does try to respect both viewpoints.

But the courts only ever get involved in extreme cases (in any area) so what is more important then is for journalists to keep engaging in this debate, so that when they're making split-second judgment calls under pressure they have an instinctive feel for it. Journalists are ultimately storytellers, and good storytellers have an instinctive empathy for both the subject of the story and the audience, simultaneously. This is their art.

Lawyers try to find fair and balanced positions, often in highly contestable situations. That is their art, but it is better when we don't need to call on it.

by on March 19, 2011
Anonymous

Wow. I thought I had signed off this conversation with an attempt to give some advice that might be useful to Nicole.

I was just pointing out that you, Nicole, appeared inexperienced with the art of journalism (not a sin) and some in-depth knowledge might help you in your attempts to create what you consider a better legal framework for journalists to operate under. I’m sure financial lawyers know heaps about the financial industry – doesn’t the media deserve the same. If I was wrong, and you do have a really good knowledge of how media works and fails, I’m sorry, I misinterpreted your words.

Stephen: I am not a journalist. I have worked closely with them. They frustrate the hell out of me, but I respect their craft. I find much of what the organisations they work for do, both frustrating and offensive. I believe they get away with bad editorial decisions far too often and that the media business model we live with often disrespects the rights of the general public. I love nothing more than to see some ratings-driven editor hauled before some higher power to explain why he/she exploited the misery of some innocent Jo. Yes the law should be strengthened to protect me and you. (by the way, I’m enjoying your nice blue book and think your blog is kind of good too)

Do I have a technical understanding of the law? No. Do I understand why it exists and why it is important to us AND the media…I think I do.

Was Christchurch such a good case for Nicole to use. I believe not. As Tim so enthusiastically tried to say – this was a new thing. An imperfect thing. A horrific thing. Is Nicole’s use of the Manning children worse than the media’s? Like many journalists working in Christchurch, Nicole is doing her job, furthering her career. Some good may come of her wincing* at a journalistic depiction of true emotion, some may not.

I’ll say it again. Christchurch was different - as close to a “pure” (please don’t take offence) news event as we have seen. Some mistakes were made – much of value was achieved. There are much more flagrant and offensive abuses of, and by the media, happening every day that are ignored and invisible to most. We can’t even get that mix right…if the answer to our failing media is to bring on the lawyers…good luck to us all. I’ll be watching my news on You Tube I guess.

* I used that word, because that’s how I interpreted your (Nicole’s) reaction to seeing the Mannings' emotions and predicament…again, forgive me if I misinterpreted your words Nicole. I winced too…but it didn’t offend me. Would it offend me if those same scenes were proved to have been used to market the news?…too right. But as I’ve also tried to say – that is another argument. News is different than an ad for the news.

There.

by on March 19, 2011
Anonymous

Tim: Sorry, the Preview feature on the site seems cause that goobledeegook - I'll desist from using it.

by Claire Browning on March 21, 2011
Claire Browning

Mr B - whatever the cause of the gobbledeegook, it isn't the preview function.

One possible cause is pasting font-formatted material into the comments box from Word - but in this instance, it doesn't look as if you'd done that.

Apologies. I've cleaned it up.

by Nathan on March 22, 2011
Nathan

Misunderstanding the nature of the debate - the importance of the difference between "harm" and "offense"

1. Mr Burns - In using the language of "offense", it appears that you have misunderstand the nature of Dr Moreham's argument (at least as I understand it), in so far as you conflate the concepts of:

(a) harm (which may be, if consent if not given, endured by the people who are the subject of the relevant pictures); and

(b) offense (which derives from a distaste at seeing such pictures).

2. Given the strong "slippery slope" arguments that you hint at above, I wonder if your real concern is that limitations on freedom of speech may be imposed further to the "offense principle" rather than the "harm principle" (these being the principles generally advanced in favour of limits on freedom of speech).

3. I assume (correct me if I am wrong) that your strong inclinations towards free speech, which I share, derive from passages such as this by John Stuart Mill in "On Liberty" (1859):

"... there ought to exist the fullest liberty of professing and discussing, as a matter of ethical conviction, any doctrine, however immoral it may be considered."

4.  I agree with that - it is a philosophical foundation of the free press to which our better journalists, such as Tim Watkin, contribute so such.

5. However, Mill also helpfully introduced the harm principle, which places, again to my mind rightly, the following limitation on free expression:

"the only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others."

6. If, as Tim Watkin I think rightly says, your tragedy is "compounded by having to share it", then, absent consent to that sharing, you suffer "harm".  Consistent with the accepted discourse in this area, this is usually analysed, as Dr Moreham does, in terms of it being a breach of your interest in, or right to, privacy.

7. This is quite different to the "offense principle" -  argued for by academics such as Joel Feinberg.  He argues that some forms of expression can be legitimately prohibited by law because they are very offensive - the obvious example being certain forms of pornography. 

8. Feinberg's argument (as helpfully summarised on Wikipedia if you are interested) is that that a number of factors need to be taken into account when considering the offense principle, including: the extent, duration and social value of the speech, the ease with which it can be avoided, the motives of the speaker, the number of people offended, the intensity of the offense, and the general interest of the community at large.  

9. Dr Moreham does not appear to advocate this approach to drawing legal lines (although she might in another context - I don't know) and neither (without having thought the issue through completely) do I. While Feinberg's analysis might help provide a helpful framework for exercising editorial judgment (which can surely never be abdicated in the way Tim Watkins suggests), the media could rightly point out that the sensitve can turn off their televisions/close their magazines if they do not like what they see.   

10. What is important here is that, if "harm" is accepted, the value of the free speech must outweigh that.

11. Tim's argument appears to be, although he does not advance it with any real vigour, that the pictures of the Manning children, added something to our knowledge of "truth" and therefore is of some value over and above any harm that might have been done to them (assuming that they did not consent to their images being used). I cannot see that. 

12. Like Dr Moreham, I can understand what it is like being told of the premature death of one's mother  (having had that unfortunate experience, which was the nadir of my life thus far) without having to see it.  

13. Tim suggests that such moments, in the context of national tragedy,  "unquestionably, belong to us all."  That is an astonishing assertion from a usually thoughtful man.  I cannot conceive of a more private moment - in which you are being told of the death of the, possibly only, person to whom you have given, and who has given you, unconditional love since your birth.  Surely, if you ever have the right to be left alone, it is in that moment. The fact that you happen to be in public at the moment cannot make a material difference.

13. The reason why there is no "truth" value in images of such a moment is that they add nothing to what we already know. We already know that children are devasted upon hearing of the death of their parents. They add nothing to the "marketplace of ideas" - belief in which holds that the "truth", which Tim rightly places a high value upon, or the best policy arises out of the competition of widely various ideas in free transparent discourse, an important part of liberal democracy. 

14.  It is because of the importance of that marketplace of ideas that Tim's hosting of this debate - which the media steadfastly usually refuses to engage in (censorship of the most insidious kind) - is so significant.  

Is in depth knowledge of how the media operates important in the context of this debate?

15. Again, Mr Burns, you essentially argue that an in depth knowledge of how the media industry operates is necessary so that lawyers can provide an appropriate legal framework. In this regard you state:

"I'm sure financial lawyers know heaps about the financial industry. Doesn't the media deserve the same."

17. As it happens, I am a commercial litigator in the regulatory sphere - and have both poached and kept game. At times, it has helped to have acted for both sides. However, in this context, I think that you are looking at this argument through the wrong eyes. 

18. The issue is not so much whether one can empathise with journalists doing their job but with whether one can empathise with the subject of the invasive photographs having their "tragedy compounded".  To do that the only qualification one needs is humanity and a basic understanding of human "dignity" - the protection of which is the core aim of the right to privacy.

Conclusion

18. I am yet to see an argument advanced that, assuming their consent was not given, the media were right, legally or ethically, to publish the images of the Manning children - or the Pike River families leaving the meeting at which they were told of the second explosion. However, in the interest of advancing commerce in the marketplace of ideas, and achieving the "truth" in which Tim Watkin's puts so much store, I look forward to his fully considered response. He having started this debate, the consumers in that marketplace deserve nothing less.

by on March 23, 2011
Anonymous

Here's one for budding news/graphics editors - amateur or otherwise. Since the debate seems to be around the imagery of grief and the law...

Should the well-known footage of Mark Lundy crying as he left the funeral of his family have been used? If not before the trial - would it have been alright after the trial? Or after the appeal? Or as the news of his ill-health escapes...once/if he succumbs to rumoured cancer?

by on March 24, 2011
Anonymous

Today media shows many things it doesn`t have to show, but all the journalists have professional resumes

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