BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

All BSA's decisions on complaints 1990-present

UJ and SKY Network Television Ltd - 2019-030 (19 August 2019)

Members
  • Judge Bill Hastings (Chair)
  • Paula Rose
  • Wendy Palmer
  • Susie Staley
Dated
Complainant
  • UJ
Number
2019-030
Programme
SKY News Australia
Channel/Station
SKY Television

Summary   

Warning: This decision contains content that some readers may find distressing.

[This summary does not form part of the decision.]

During coverage of the 15 March 2019 attacks on two mosques in Christchurch, SKY Network Television channel 085, Sky News New Zealand, included a number of edited clips taken from the alleged attacker’s 17‑minute livestream video. The Authority upheld a complaint that the broadcast was in breach of the violence and law and order standards. While the broadcast as a whole was newsworthy and had a high level of public interest, the clips themselves contained disturbing violent content, which had the potential to cause significant distress to members of the public, and particularly to the family and friends of victims and the wider Muslim community in New Zealand. In the context of the attacks, the content of these clips also risked glorifying the alleged attacker and promoting his messages. As such, the degree of potential harm that could be caused to audiences was greater than the level of public interest, and the Authority found overall that these clips, in the form broadcast, should not have been aired.

Upheld: Violence, Law and Order; Declined Jurisdiction: Balance, Accuracy, Fairness

Order: Section 16(4) – $4,000 in costs to the Crown


Introduction 

[1]  During Sky News New Zealand coverage of the 15 March 2019 attacks on two mosques in Christchurch, SKY Network Television Ltd (SKY NZ) broadcast a number of edited clips taken from the alleged attacker’s 17‑minute livestream video.

[2]  SKY NZ broadcasts Sky News Australia in New Zealand as Sky News New Zealand (SNNZ) on channel 085 of SKY NZ’s pay television platform. SNNZ is a foreign pass-through news channel, and despite the similarities in the business names, there is no corporate connection between the two entities. 

[3]  As the pay television host in New Zealand, SKY NZ is the broadcaster in this case with responsibilities under the New Zealand Pay Television Code of Broadcasting Practice.

[4]  Given the nature of this complaint, we have granted name suppression to the complainant and have referred to them throughout as ‘UJ’.

[5]  As part of our consideration of this complaint, we have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix.

Cultural advisor

[6]  We have also been assisted in our determination by the engagement of an independent cultural advisor, to provide a Muslim perspective on the issues raised. We co-opted the independent advisor under section 26(4) of the Broadcasting Act 1989 to provide this assistance. While an advisor co-opted to the Authority does not have voting power, they are permitted to participate in the Authority’s deliberations. We are grateful for the assistance provided to us in this case.

The broadcast

[7]  On the afternoon of 15 March 2019, over a five-and-a-half-hour period beginning at around 2.30pm New Zealand time (NZT), SNNZ provided viewers with rolling coverage of the mosque attacks. The coverage was comprised of reporting, interviews, images and footage provided by Sky News Australia, as well as segments of live coverage sourced from TVNZ, broadcast in New Zealand on TVNZ 1.

4.30pm – Clip 1

[8]  At approximately 4.30pm NZT, during coverage on SNNZ, the presenter said:

What we’re going to show you now though, is a video that’s been made by the killer here… it’s filmed from their camera. This is a heavily edited version of them pulling up in their vehicle before going into the mosque. It shows before and afterwards. We’re going to show you that heavily edited segment now.

[9]  An edited clip of the livestream footage was then broadcast (Clip 1). The clip  appears to show:

  • The alleged attacker approaching the Al Noor Mosque and raising his gun to aim at an individual who can be seen in the doorway.
  • The alleged attacker raising his gun at a parked car outside the mosque (it is unclear whether anyone is inside) and at an individual on the street. The number ‘14’, painted in white on his gun, can be clearly seen.
  • Petrol canisters in the boot of his car. During this segment, the music playing in the alleged attacker’s car can be heard. The alleged attacker can also be heard panting, swearing and talking out loud, presumably to himself and/or to the audience of the livestream.
  • The alleged attacker loading and firing his gun twice through the windscreen of his car at an individual stepping into their parked car (the car later drives away). The sound of the shot is muted but not entirely silenced, and the recoil movement of the gun can be seen as it is fired. Part of the alleged attacker’s face can be seen in the car’s rear vision mirror.
  • The alleged attacker raising his gun at two individuals about to step out onto the street, but not firing.
  • The alleged attacker firing his gun through the windscreen and window at passers-by on the street and down a driveway.

[10]  Clip 1 was repeated twice during interviews with a terrorism expert and with Sky News Australia’s New Zealand Bureau Chief. The terrorism expert provided his analysis of the video and commentary on the potential motivations of the alleged attacker. The expert suggested that the alleged attacker had been influenced by right-wing extremism, noting the messages written on the weapons and explaining their meaning and source. The weapons shown in the clips were also identified and discussed during this segment.

[11]  No visual warnings or banners were shown during the broadcast of these clips.

5pm – Clip 1

[12]  At around 5pm, the presenter introduced a repeated broadcast of Clip 1 as follows:

What we do know about the gunman that went into this mosque in Christchurch in the first attack was that they were wearing a helmet with a camera on it and that was posted on the internet… We’ve got some highly edited pictures of this gunman and this attack, this shows the moments before and just afterwards.

[13]  Clip 1 was again repeated during an interview with the Defence and National Security Editor at The Australian newspaper.

[14]  No visual warnings or banners were shown during the broadcast of these clips.

5.26pm – Clip 2

[15]  At around 5.26pm, the presenter reported the latest updates as a new, extended version of Clip 1 was broadcast (Clip 2). This extended version of the clip ended with a frozen image of the alleged attacker’s face, shown clearly and in full frame, looking directly at the camera. This image was shown on-screen for over 10 seconds. 

[16]  As Clip 2 played, the presenter said: ‘We’re just going to show you as well, though, this is an edited clip of at least one of the gunmen… We’re not showing you the more graphic images of this attack…’

[17]  A visual warning was displayed at the bottom of the screen, beneath a breaking news banner: ‘A warning to viewers our coverage of the shootings in Christchurch contains vision that may be distressing’.

5.57pm – Clip 1 and additional material  

[18]  At around 5.57pm, the presenter recapped the events of the afternoon and introduced the broadcast of Clip 1 as follows:

The gunman wore a helmet with a camera attached and filmed the entire incident… This was livestreamed online. We are not going to show you the worst of the scenes... of innocent worshippers being shot as they prayed. It is incredibly graphic, it is very disturbing, as is the relatively calm and clinical manner, it must be said, in which the gunman works through the building. We are going to show you an edited piece of video here and a warning that this may disturb some, but it is heavily edited, [and] not going to show those graphic scenes. What we are going to show you, just to be clear, is the man arriving and then leaving the mosque, you do get a sense from this of how heavily armed he was, how comfortable he was with the weapons and his manner, both before and after this shocking event, take a look.

[19]  As the clip was broadcast, a visual warning was displayed as above.

[20]  The presenter then discussed the alleged attacker’s so-called ‘manifesto’, The Great Replacement. The presenter read out brief extracts from the document, which were also displayed visually. He also described social media posts reportedly written by the alleged attacker prior to the attacks.

6.07pm – Clip 3

[21]  At around 6.07pm, the presenter introduced new footage as follows:

We’re going to show you now for the first time some video from inside the vehicle of either a potential shooter or shooters having a conversation, take a look.

[22]  This clip (Clip 3) featured the alleged attacker speaking, presumably to the audience of the livestream, providing commentary about his actions and discussing the attack and his ammunition. The alleged attacker’s voice can be heard audibly and music can be heard playing in the car. Subtitles of what was being said by the alleged attacker were added to the footage by SNNZ, with swearwords muted and displayed with asterisks.

[23]  No visual warning was displayed during this segment.

8.08pm – Feed swapped to Fox Sport News

[24]  At approximately 8.08pm NZT, the SNNZ feed was removed from the SKY NZ platform and channel line-up in New Zealand and replaced with Fox Sport News.

[25]  According to SKY NZ’s submissions on this complaint, the SNNZ feed was swapped to Fox Sport News ‘at the instigation of Sky News Australia’, in consultation with SKY NZ, to ensure that Australian coverage did not compromise the New Zealand legal process. The channel swap did not affect Australian platforms.

DIA guidance and OFLC’s classification decisions

[26]  On 15 March 2019, after this broadcast and shortly before 11pm, the Department of Internal Affairs issued a press release notifying the public that the full 17-minute livestream video was likely to be objectionable content under New Zealand law. During the afternoon, the Commissioner of New Zealand Police also issued a warning during his press statements that a livestreamed video was in circulation and should not be viewed or distributed.

[27]  On 18 March 2019, three days after this broadcast, the Office of Film and Literature Classification (OFLC) classified the full livestream video as objectionable, meaning that it is illegal for anyone in New Zealand to view, possess or distribute the full video in any form.1

[28]  On 20 March 2019, OFLC released guidance about the classification decision and particularly around the use of excerpts or stills taken from the full video. The Chief Censor noted that ‘the classification of the complete video set did not automatically mean that any image or short extract from it was also objectionable. However it is very important for people to be aware that any edited clips… taken from the full video, that depict scenes of violence, injury or death, or that promote terrorism, may well also be objectionable.’2

[29]  The Chief Censor also noted that ‘news organisations have needed to make ethical judgements about what images they broadcast…’ and ‘news media and all New Zealanders needed to carefully consider the impact of sharing, broadcasting or publishing any part of this video’, given the potential for harm.3

[30]  The publication reportedly written by the alleged attacker, known as The Great Replacement, was also classified as objectionable on 23 March 2019. In relation to this decision, the Chief Censor noted: ‘…use of excerpts in media reports may not in itself amount to a breach… but ethical considerations will certainly apply. Real care needs to be taken around the reporting on this publication, given that widespread media reporting on this material was clearly what the author was banking on, in order to spread their message.’4

[31]  OFLC’s role is to classify publications under the Films, Videos and Publications Classification Act 1993. While OFLC’s classification decisions are relevant factors for us to consider, our role under the Broadcasting Act 1989 is to determine whether the broadcast of edited clips from the full livestream footage, and any accompanying material, was in breach of broadcasting standards. This requires us to consider contextual factors and broadcasting standards guidelines, as they apply in this news reporting environment. This is the focus of our deliberations and the role that we play as the Authority with oversight of broadcasting standards.  

The complaint and the broadcaster’s response

[32]  UJ complained that this broadcast breached the violence and law and order standards of the Pay Television Code of Broadcasting Practice, for the following reasons:   

  • SNNZ broadcast edited segments from the alleged attacker’s go-pro footage during its coverage of the attacks.
  • These segments included footage of the alleged attacker shooting at victims, and later shooting through the windows of his vehicle at victims. This ‘undoubtedly included victims being injured or killed’, which was in clear breach of the violence and law and order standards.

[33]  The complainant explained in their submissions to us that they watched one excerpt of the livestream footage broadcast on SNNZ and they did not watch the full broadcast coverage referred to in this decision.

[34]  As part of our consideration of a broadcasting standards complaint, however, we must have regard to the full context of the broadcast. In their complaint, UJ was clearly concerned about SNNZ’s general use of the livestream footage during its coverage, and as such, it was appropriate for us to make an assessment of whether the use of the footage in the broadcast as a whole was in breach of broadcasting standards. 

[35]  UJ also raised the balance, accuracy and fairness standards as contextual background for this complaint. We have declined jurisdiction on these standards, as set out briefly below from paragraph [112].

[36]  SKY NZ submitted:

  • The events of 15 March were fast-moving and challenging, including for media.
  • SNNZ is a foreign pass-through channel, meaning that SKY NZ broadcasts the channel on its platform but is not involved in the creation of content. SKY NZ has no ability to alter or modify the news feeds of foreign pass-through channels.
  • At the instigation of Sky News Australia, the news feed was swapped to Fox Sport News later that evening, ‘a proactive and precautionary decision to ensure any live coverage or commentary taking place in Australia, outside of the New Zealand jurisdiction, did not compromise the New Zealand investigations and legal process.’
  • In the days following the attack, SKY NZ also contacted news channels and news programmes broadcast on SKY NZ to ensure they were aware that publication of footage was likely to breach New Zealand law. As such, SKY NZ acted as a responsible broadcaster during and following the tragic events.
  • Finally, the law and order standard is not intended to prevent broadcasters from discussing or depicting criminal behaviour or other law-breaking. It is concerned with broadcasts that actively undermine, or promote disrespect for, the law or legal processes.

[37]  In response, UJ submitted:

  • By referring to a pass-through channel, SKY NZ were ‘effectively saying they can’t control the content of live news channels.’
  • The key issue was that the footage was shown and SKY NZ’s action in removing SNNZ was not ‘proactive’.

The Pay Television Code

[38]  SKY NZ is subject to the Pay Television Code, which recognises that pay television enjoys a less restrictive environment than free-to-air television because of the choice customers make in paying to receive broadcasts.5

[39]  In relation to violent content in particular, the Codebook states:6

Violent material is readily accessible in our society and it follows that some material of this kind will be able to be accessed on television. However, there must be strong protections in place to prevent this material being viewed by children and young people, and strong protections to ensure that it is not inadvertently viewed by those who do not wish to do so.

[40]  The Code recognises that pay television broadcasters may offer channels over which they have no (or little) editorial control, for example, foreign pass-through channels. This limited control of the broadcaster will be an important consideration when assessing whether a programme has breached standards.7

The standards and relevant guidelines

[41]  The purpose of the violence standard (Standard 4) is to protect audiences from unduly disturbing violent content.8 The standard requires broadcasters to exercise care and discretion when portraying violence and to ensure that any violent content is appropriate to the context of the programme.

[42]  News and current affairs programming is not subject to classification under the Pay Television Code.9 Disturbing or alarming material in news and current affairs should however be justified in the public interest and carry audience advisories where appropriate.10 Broadcasters must use judgement and discretion when deciding the degree of graphic material to be used in news programmes.11

[43]  Broadcasters should also exercise caution with content likely to incite or encourage violence.12

[44]  As noted above, the level of editorial control of the broadcaster over programme content is ‘an important consideration’ when complaints are considered. This is relevant where broadcasters exercise no (or little) editorial control over content screened on foreign pass-through channels.13

[45]  The law and order standard (Standard 5) states that broadcasters should observe standards consistent with the maintenance of law and order, taking into account the context of the programme and the wider context of the broadcast (including the nature of the programme, the availability of filtering technology and the level of public interest).14

[46]  Programmes should not actively promote serious antisocial or illegal behaviour, including violence and serious crime.15

Freedom of expression and the public interest

[47]  When we make a decision on a complaint that broadcasting standards have been breached, our task is to weigh the value of the programme, in terms of the right to freedom of expression, against the level of actual or potential harm that might be caused. Harm can be caused either to individuals or to audiences generally. We also consider wider contextual factors, such as the public interest in the broadcast.

[48]  In terms of the potential harm, we have considered whether harm could be caused to audiences generally, both in Christchurch and around New Zealand. We have also considered the particular harm that might be caused to the family and friends of the victims and the New Zealand Muslim community, who were targeted in these attacks.

[49]  We must weigh this potential harm against the right to freedom of expression, which encompasses both the right of the broadcaster to impart ideas and information, and the audience’s right to receive information.

[50]  We recognise that, during major news events, and particularly in times of crisis, the media play a critical role in providing information to audiences. The Authority has previously noted that:16 

Members of the public rely on media sources for information about [crisis events] and advice regarding their safety and what is happening around them. They have a right to know about the scale and impact of any event, so that they can act and prepare themselves accordingly. In this respect the media delivers an important public service and it is crucial that this is done in a timely way, as information becomes available.

[51]  We acknowledge that the 15 March attacks presented an unprecedented situation for broadcasters and New Zealand. Broadcasters had a critical role to play in keeping the community informed as events unfolded. This required careful decision making and the exercise of judgement about the information that can and should be broadcast during a developing situation. In these circumstances, the standards exist to guide broadcasters in their ethical conduct.

[52]  At the time of broadcast, SKY NZ needed to balance its duty to provide sufficient information and detail to the public about the news events, while also avoiding harm to viewers. The weighing exercise undertaken by broadcasters on 15 March 2019 took place as events unfolded and as new information came to hand, during unprecedented and challenging circumstances.

[53]  In the case of SKY NZ, it had limited editorial control over the content that was broadcast on SNNZ and limited options as to the action it could take in response to any potential breach. We acknowledge that it could not direct the presenters or edit content selected within the broadcast. It did however have the option to cut the channel from the platform (albeit with potential commercial implications), or to work with Sky News Australia to change the feed, which according to SKY NZ’s submissions is the action that was subsequently taken, at the instigation of Sky News Australia. We acknowledge the challenges facing the broadcaster in these circumstances and we have taken this contextual background into account in making our decision.

[54]  We have found, however, that the degree of potential harm that could be caused to audiences through the broadcast of these clips was greater than the public interest in the clips themselves. The clips as broadcast had the potential to promote and glorify the alleged attacker and his message and to cause significant distress to members of the public, and particularly to the family and friends of victims and the wider Muslim community in New Zealand. The content of the clips also had the potential to incite or encourage violence and as such, the broadcaster needed to exercise a high level of care and caution.

[55]  Further, the broadcast of these clips, in the context of the attacks, had the potential to promote serious antisocial and illegal behaviour in the form of violent terrorist activity. Given the nature of the content and the factual depictions of violence, there was a risk that susceptible viewers may have been encouraged by what they had seen.

[56]  While SKY NZ has limited editorial control over the programme, we consider that more should have been done to mitigate the potential for harm to audiences in New Zealand, particularly once it became apparent that SNNZ coverage included the clips. In our view, the clips were broadcast at least five times with inadequate audience advisories, which were not sufficient to inform audiences about the likely content. While we have been advised by the parties that the channel was eventually transitioned to sports news coverage at the instigation of Sky News Australia, this was only after the footage had been repeated at least eight times.

[57]  Given the above considerations, we have found that these clips from the livestream video should not have been broadcast. While we recognise the high level of public interest in broadcast coverage of these events, in our view the broadcast of these clips went too far.

[58]  Any limitation on the right to freedom of expression must be reasonable, prescribed by law and demonstrably justified in a free and democratic society. The Authority’s decision to uphold a complaint, in itself, represents a limitation on this important right and therefore a finding that content should not have been broadcast at all is significant. We may only interfere where we consider that the harm outweighs the value and public interest in the content. We consider that threshold, justifying our intervention, has been met in this case.

[59]  While there was high value and public interest in reporting on the mosque attacks to keep the public informed, we consider there was little value or public interest in the clips as broadcast. They had the potential to cause significant hurt and distress to audiences, and particularly to the Muslim community most impacted by these attacks.

[60]  Our finding promotes the objectives of the violence and law and order standards and reflects a reasonable, lawful and justified limit on the right to freedom of expression. We do not make this decision lightly, and have set out our full reasons under each standard raised below.

Violence

[61]  Under the Pay Television Code, the issue for us to consider under this standard is whether SKY NZ exercised the appropriate level of care and discretion when portraying violence, taking into account the context of the programme and particularly the level of editorial control available.

[62]  We have also considered whether the steps taken by the broadcaster, including the use of audience advisories and the removal of SNNZ from the SKY NZ platform, were sufficient to mitigate the potential for harm.

Relevant contextual factors in this case

The public interest

[63]  We agreed that SNNZ’s coverage as a whole had high value in terms of the right to freedom of expression and carried a high level of public interest. Given the unprecedented nature of these attacks in New Zealand, it was important that audiences were provided with sufficient information to enable them to understand the scale and significance of what had taken place. The media provide a critical service to the public when reporting on crisis events, and we agreed that most of the information reported during this broadcast was newsworthy and justified.

[64]  We also consider that it was important for viewers to be kept informed about the general existence and nature of the livestream footage, which was a significant element of the attack, as further information came to hand. We also note that the coverage included contemporaneous statements from presenters, expert commentators, Prime Ministers and Members of Parliament in both New Zealand and Australia, denouncing the alleged attacker’s conduct.

[65]  However, we do not consider the level of public interest in the detailed depictions of violence shown in these clips was proportionate to the high level of harm that could be caused to viewers, particularly the family and friends of victims and members of the Muslim community.

[66]  While the clips selected by SNNZ were clearly edited, they contained footage of what appears to be attempted killing, disturbing and alarming imagery and distressing descriptions of violence, which in our view went beyond what was necessary to keep viewers informed about the attacks. These clips were intentionally repeated during the course of the five-and-a-half hour coverage, with Clip 1 shown six times, Clip 2 shown once (an extended version also including a frozen image of the alleged attacker’s face), and Clip 3 shown once (footage with the alleged attacker speaking, with subtitles added, but edited for two swear words).

[67]  It is also significant that the message and actions of the alleged attacker were more strongly conveyed through the inclusion of the alleged attacker’s audio from the livestream footage, and also by the addition of subtitles in the case of Clip 3. In our view, the editorial treatment meant that Clips 2 and 3 were more intense, and the cumulative effect overall was disturbing.

[68]  We accept that the use of strong images in news reporting, particularly during significant news events, is important and carries value. This view is reflected in guidance issued by the BBC, which states:17

Audiences do believe that strong images should be used if they feel the subject demands it and if the editorial justification is clear to them. They recognise a need for television news to sometimes push the boundaries and make an exceptional decision to show more robust images to fully convey the intensity of a story. However, our audiences are quick to spot gratuitous or sensational use of violent images.

[69]  In this case, we consider that, notwithstanding the strong denunciation of the attacks throughout the five-and-a-half hour SNNZ coverage, the use of strong images from the alleged attacker’s livestream video risked furthering the alleged attacker’s purpose of glorifying his own actions. The repetition, intensity and disturbing nature of the clips in our view went beyond what was necessary to keep viewers informed about the events of the day. We consider there were other equally strong images available to broadcasters, such as the response of police and emergency services and interviews with eye‑witnesses, that could have conveyed the scale and severity of the situation to audiences without causing undue harm.

The nature of the clips and the alleged harm

[70]  In making our decision we must weigh the value of the broadcast, and the public interest in both the clips and the programme as a whole, against the harm alleged to have been caused.

[71]  As noted by the presenters in their introductory statements, the clips were clearly edited and did not show the most graphic segments of the full video. It is unclear from the clips whether any of the individuals shot at were hit or wounded.

[72]  However, the clips did show the alleged attacker’s conduct in the course of attempted killing or attempted injury, and in the context of an attack that took place in real life (and not as part of a fictional narrative). The visual violent content in these clips was not masked, blurred, pixelated or fleeting and was highly disturbing and distressing given what had occurred. We therefore consider that the broadcast portrayed extremely challenging violent content and themes.

[73]  The cumulative effect and the increasing intensity of these clips was disturbing and alarming. Most disturbing in our view is the alleged attacker’s monologue in Clip 3, which was broadcast with subtitles added by SNNZ. The broadcast of this monologue gave a voice to, and amplified the message of, the alleged attacker. His language, and his framing of the attack, dehumanised the victims and glorified the violence, which is distressing and disturbing.

[74]  We also found that the first-person perspective, combined with the clear audio and addition of subtitles, had the effect of placing the viewer in the shoes of the alleged attacker, as if they were playing a first-person shooter game. The video-game-like quality of the footage was highly disturbing and further dehumanised the victims of the attack.

[75]  Further, some of the contextual factors considered by OFLC in its classification of the full 17‑minute video are reflected in the edited clips that were broadcast.18 For example:

  • As noted above, the ‘disturbing effect’ of the first-person view, which means audiences watch the attack from the perspective of the attacker.
  • The references to ‘popular extremist memes’, presented as ‘intentional cues, or flags’ for the intended audience.
  • The ‘instructional’ element of the monologue, in which the alleged attacker ‘…reflects on his own performance and the performance of his weaponry…’

[76]  For these reasons, we found that the potential for harm in this case was extremely high. Despite being edited, the clips broadcast were highly disturbing and distressing, and further provided a voice and platform for the alleged attacker and his messages, as we expand upon below. 

Glorification and promotion of the alleged attacker  

[77]  An important contextual factor for us to consider in this case is whether the broadcast of these clips could be said to have promoted or glorified the alleged attacker and his message. Guideline 4b to the violence standard states that broadcasters should exercise caution with content likely to incite or encourage violence.

[78]  The alleged attacker’s use of visual material and social media was an important element of this event and has been a key focus of New Zealand’s response. There was therefore a high degree of public interest in the fact and general nature of the livestream video. It was important, however, that media did not give primary focus to the attacker or his message, and we have taken into account the following commentary which applies to the reporting of terrorist content:19

Two basic rules of media ethics apply to the coverage of terrorism: avoid giving unnecessary oxygen to the terrorist, and avoid unnecessarily violating standards of public decency. The way to do this is to apply a test of necessity: what is necessary to publish to give the public a sufficiently comprehensive account of what has happened?

...It is obvious that whoever gets footage out first will have the advantage of exposure in the early stages of media coverage… if the first footage takes the form of terrorist propaganda, then no matter how hellish or sensational it is, there is an added ethical duty to minimise what might be called “first footage advantage”.

[79]  We have also been guided by the United Nations Educational, Scientific and Cultural Organisation’s (UNESCO) Terrorism and the Media: A Handbook for Journalists, which states:20

Covering terrorist violence also requires keeping a sense of proportion. Reason must be the rule, in the volume of the journalistic coverage – too much information can cause just as much anxiety as too little information – in its “sound level” and in its portrayal of violence.

…The media practically go on auto-pilot, almost automatically contributing to the amplification of the terrorist impact, and even its exaggeration. They must be aware of this, and constantly assess their treatment of information to re-establish a sense of restraint and balance if necessary.

[80]  The guidance further notes that images are at the core of terrorist acts, with social media networks in particular providing new ways for terrorist groups to disseminate their messages or stage their violent actions.21 The critical issue for broadcast media is knowing how to ‘..strike a balance between [the] duty to inform the public… and the need to avoid being used as a vehicle for hateful, ultraviolent propaganda’.22

[81]  In the immediate aftermath of the attack, it was important for SNNZ, and SKY NZ as the New Zealand broadcaster, to exercise the appropriate level of care and discretion in its broadcast coverage. Broadcasters needed to report at a level proportionate to the high level of public interest, while also ensuring reporting did not ‘amplify the terrorist impact’ or contribute to a harmful cumulative effect of the violent themes reported on the day. Additionally, it was important that images of violence or potential glorification of violence were appropriately signposted and viewers given sufficient warning and time to change the channel, to look away or to protect any children in their care.

[82]  While it is clear that SNNZ repeatedly denounced and did not endorse the actions of the alleged attacker, the full livestream video was created for propaganda purposes. It has been described as a video that was created, ‘to glorify this act of barbarism, to inspire weak-minded people to copy it, and to sow fear in the community.’23 In its classification decision, OFLC notes that those who are susceptible to radicalisation may be ‘encouraged or emboldened given the promotional nature of the video’, creating a risk that ‘dehumanising racist hatred’ will spread. While OFLC’s decision relates to the full 17-minute video, and not to these specific edited extracts from the video, we consider the observations made are also relevant to the clips that were broadcast. 

[83]  As noted in The Oxygen of Amplification, by Whitney Phillips, reporters and editors should ‘be aware of how strategic many groups of white supremacists and nationalists are in their communications and messaging’.24 The clips broadcast in this case included some of the alleged attacker’s messages, particularly during the subtitled monologue. Clip 3 also featured an extended shot of his face. Other visual and sound cues (such as the music playing in the alleged attacker’s car) were also readily apparent in the clips. These deliberate extremist or cultural references were intended to be recognised and appreciated by some within the livestream audience: the number ‘14’, for example, we understand is a reference to a white supremacist slogan, and was clearly visible during the clips.25 Further, the clips were broadcast in combination with extensive surrounding commentary about the alleged attacker’s motives, three quotes from the so-called ‘manifesto’ and his social media posts, which further provided a platform for his messages.

[84]  For these reasons, notwithstanding the strong denunciation of the attacks throughout the five-and-a-half hour SNNZ coverage, we consider the use of clips from the alleged attacker’s livestream footage had the potential to further the alleged attacker’s propaganda purpose, of glorifying his own actions and inciting or encouraging violence under guideline 4b. A high level of caution therefore needed to be exercised by the broadcaster and due consideration given to the question of whether these clips needed to be broadcast at all in order for audiences to be kept informed. 

Disturbing and alarming material in news should be justified in the public interest

[85]  Guideline 4c requires that disturbing or alarming material broadcast during news programmes should be justified in the public interest and carry audience advisories where appropriate. For the reasons stated above, we consider that the clips broadcast were clearly disturbing and alarming.

[86]  We also consider that the broadcast of these clips went beyond what was required in the public interest to inform the community about the events that had occurred. While the public interest in the actions of the alleged attacker was extremely high, the harm resulting from the broadcast of these particular clips was in our view even greater, and therefore disproportionate to that level of public interest. Ultimately we have found that the disturbing and alarming material was therefore not justified in the public interest, regardless of the steps taken by the broadcaster to protect audiences.  

Steps taken by the broadcaster

[87]  While we do not consider that the broadcast of these clips was justified in the public interest, we nevertheless set out below, by way of guidance, our findings regarding the mitigating steps taken by the broadcaster.

Audience advisories

[88]  We acknowledge that viewers could expect to be presented with some content that may be distressing during SNNZ’s coverage, given the nature of the attack that had occurred. This was an act of unprecedented violence in New Zealand and it was clear that graphic video footage of the attacks had been captured. However, the potential for harm arising from the violent content and terrorist messaging in this case was high, and therefore a proportionately high level of caution needed to be exercised by the broadcaster.

[89]  The disturbing nature of the footage was signposted for viewers throughout the programme. However, the verbal warnings provided for the broadcast of Clips 1 and 2 (at 4.30pm, 5pm and 5.26pm) were not comprehensive. Viewers were advised that the footage had been edited, but it was unclear to what extent violent or distressing content would be shown. There was no warning that the clips would show, for example, shooting at people or the alleged attacker’s face. Little, if any, signposting occurred prior to the first broadcast of Clip 1 and no visual warnings were displayed until 5.26pm, when Clip 1 had already been repeated five times.

[90]  We further do not consider that the warning broadcast prior to Clip 3, which featured the subtitled monologue from the alleged attacker, was sufficiently specific to inform viewers about the highly disturbing and alarming content. Further, no visual warning was displayed during this segment.

[91]  As a news programme, SNNZ is unclassified, meaning it was essential that viewers were provided with sufficient information, via warnings, to make informed choices about what they watched. While audiences should have the freedom and capacity to choose what they want to watch (particularly in the context of pay television),26 where violent material is broadcast there must be strong protections in place under the standard. We do not consider that sufficiently strong protections were available here.

Level of editorial control

[92]  As noted above, SNNZ is a foreign pass-through channel on the SKY NZ platform, meaning that SKY NZ exercises little, if any, editorial control over the content of the programmes provided on the channel. SKY NZ has also confirmed that it is unable to independently alter or modify the SNNZ feed and it therefore has a limited ability to intervene or to take appropriate action where potentially harmful content may be broadcast.

[93]  As the responsible broadcaster in New Zealand, however, SKY NZ has an obligation to comply with broadcasting standards and to ensure that audiences are protected from unduly disturbing violent content. The fact that SNNZ is a foreign pass-through channel, over which SKY NZ exercises limited control, is a contextual factor which we must take into consideration, but it is not determinative and does not fully exonerate SKY NZ from its responsibilities under the standards.

[94]  While SKY NZ does not exercise editorial control over individual programmes, it does have control over what content is delivered via each channel to the consumer. SKY NZ has confirmed that, notwithstanding the legal and commercial implications, in extreme circumstances it has the ability to remove a channel from the SKY NZ platform and channel line-up. SKY NZ says: ‘It is [an] option, though, in an extreme case as a mitigation step to protect our customers and to meet our obligations.’ While SKY NZ is unable to apply its own on-screen warnings to foreign pass-through channels, it can add warnings to the electronic programme guide (EPG).

[95]  As noted above, SKY NZ has confirmed that the SNNZ feed was swapped to Fox Sport News ‘at the instigation of Sky News Australia’, in consultation with SKY NZ, to ensure that the Australian coverage did not compromise the New Zealand legal process. It therefore appears that the primary motivation for the swapped feed was to ensure the legal process in New Zealand was not compromised, rather than any consideration of the harm that could be caused to audiences or the ethical obligations that applied to SKY NZ. While SKY NZ contacted other news broadcasters following the classification of the video footage as objectionable, there is no indication from SKY NZ’s submissions that the potential harm to audiences was a factor for this decision.

[96]  Further, we can see from the copy of the broadcast provided to us that over five hours passed before the decision was made to remove the feed. By this time, clips from the livestream video had already been broadcast at least eight times and repeated at least five times with inadequate warnings.

[97]  While this was a challenging situation, and SKY NZ has limited editorial control over SNNZ content, we consider more needed to be done to mitigate the potential for harm. These were extreme circumstances and given the nature and magnitude of the events, SKY NZ’s responsibility was therefore greater. SKY NZ needed to intervene earlier to ensure New Zealand audiences were protected. This could have involved pulling the channel from the line-up earlier, broadcasting its own warnings available on the EPG for disturbing and violent content, or communicating directly with Sky News Australia sooner to note the potential for harm and/or to request more detailed warnings.

Conclusion

[98]  Taking all of these findings into account, we have concluded that while there was high value and public interest in keeping the public informed about these attacks, the harm caused by these extensive clips was disproportionate to the value in them. We consider the clips risked distressing viewers (particularly those directly impacted by the events) and providing a platform for the alleged attacker to further his purpose of glorifying his own actions.

[99]  As we have noted above, we consider this decision reflects a reasonable and justified limit on the right to freedom of expression. We consider the broadcast as a whole had value and, had the clips been further edited and specific warnings broadcast, we may have come to a different conclusion. We must, however, consider the clips as used in the broadcast before us.

[100]  For the reasons outlined above, we therefore uphold this aspect of the complaint.

Law and Order

[101]  The purpose of the law and order standard is to prevent broadcasts that encourage audiences to break the law, or otherwise promote or condone criminal or serious antisocial activity.27

[102]  The standard is concerned with broadcasts that actively undermine, or promote disrespect for, the law or legal processes. Broadcasts which condone criminal activity or present it as positive or humorous may have this effect. Explicit instructions on how to perform a criminal technique may also undermine law and order.28

[103]  In most cases, context will permit a pay television depiction of illegal activity, given the level of choice and control available to viewers who subscribe to the platform.29 As noted in SKY NZ’s submissions, context is crucial in assessing the programme’s likely practical effect.30 A distinction will usually be drawn between factual, and fictional or dramatic depictions, for example.31

[104]  We found the following contextual factors relevant in our determination under this standard:

  • The clips were taken from a livestream video filmed and distributed by the alleged attacker, for the sole purpose of glorifying and promoting an act of extreme terrorist violence.
  • The clips contained not only disturbing footage of attempted killing or attempted injury, but also the alleged attacker’s deliberate visual and sound cues intended to be recognised and celebrated by those with extremist or white supremacist views.
  • The clips did not feature fictional or dramatic depictions of violence, but footage of a real attack of unprecedented violence as it took place in real-time, from the perspective of the alleged attacker.
  • The first-person perspective of the clips, combined with the audio (and additional subtitles in the case of Clip 3), placed the viewer in the shoes of the alleged attacker and created a disturbing video-game-like effect, which reflected the alleged attacker’s purpose of glamorising the violence and dehumanising the victims. Third party camera footage would not have had the same effect.
  • Clip 3 featured subtitles, added by SNNZ, which more strongly conveyed the messages of the alleged attacker and provided him with a platform to disseminate his views. The alleged attacker can be heard laughing as he reflects on the attack and provides listeners with what is essentially a tactical debrief. While he is frustrated about certain aspects, his tone indicates his overall enjoyment or satisfaction with what has occurred.
  • The clips, and particularly Clip 3, contained instructional elements which had the potential to encourage susceptible viewers.

[105]  We also considered how these clips were presented, which would have been apparent to SKY NZ as the broadcaster in New Zealand:

  • The clips, while edited, were framed by extensive commentary from the presenters and expert commentators, who reported on the alleged attacker’s potential motivations, his background, the weapons he used and excerpts taken from his associated propaganda materials.
  • The presenters were clearly aware of the graphic and disturbing nature of the footage and its source, prior to broadcast of the clips, given the commentary that was prepared to accompany them.
  • The clips were not broadcast live but had been selected for the programme and decisions had been made about how they would be presented. Over the course of the five hour coverage, it was apparent that the broadcast included detailed coverage of the alleged attacker’s actions, including through use of the clips.
  • The clips were repeated during the course of the broadcast, with Clips 2 and 3 being more intense.
  • SNNZ added subtitles to Clip 3, which more strongly conveyed the messages of the alleged attacker and therefore carried an increased potential for harm.

[106]  Even though the SNNZ coverage entirely denounced the attacks, in making the relevant editorial decisions, thought needed to be given to the risk of the broadcaster being used as a vehicle for amplifying the alleged attacker’s views. In this respect, we have had regard to the academic report, The Oxygen of Amplification, which sets out useful matters for journalists and broadcasters to consider when it comes to reporting on extremist views. The report states that, given the ‘deep performativity’ of some of the behaviour exhibited by manipulative groups, such as white supremacists, journalists and broadcasters should:32

… minimise focus on individual motivations or personal psychology.

…No matter the specific framing, stories should avoid deferring to manipulators’ chosen language, explanations or justifications.

[107]  We acknowledge that these clips were broadcast during a programme that clearly and repeatedly denounced the attacks throughout (this included expert commentary, live coverage of the Prime Minister of New Zealand’s press conferences, the New Zealand Police Commissioner’s press conferences and the Prime Minister of Australia’s press conferences, all of whom denounced the attacks).

[108]  However, we do not consider that due care or discretion was exercised with respect to the disturbing violent content contained in the clips. We have found above that showing the clips from the alleged attacker’s livestream footage had the potential to further the alleged attacker’s propaganda purposes of glorifying his own actions and inciting or encouraging violence. In our view the broadcaster should have been more cognisant of this risk and taken appropriate action to take this content off air, or to engage with Sky News Australia to remove disturbing content from the feed.

[109]  Overall, the broadcaster needed to be mindful of the potential impact this broadcast could have, not only on viewers who might be harmed by the disturbing content, but also the impact on susceptible viewers who might be encouraged by the promotional nature of the alleged attacker’s livestream video.

[110]  We consider that the editorial treatment of the clips increased the potential for harm in this case and provided a platform for the alleged attacker’s propaganda. While SKY NZ has limited control and did not make the editorial choices we have outlined above, as the broadcaster in New Zealand, SKY NZ was ultimately accountable for ensuring the broadcast in New Zealand complied with broadcasting standards. We have found that more needed to be done to mitigate the potential for harm in this case.

[111]  We therefore uphold the complaint under the law and order standard.

Remaining standards

[112]  In their initial complaint to SKY NZ, UJ raised their concern that SNNZ was a biased channel, which provided a platform for the far-right of Australian politics and which would struggle to maintain standards of balance, accuracy and fairness.

[113]  UJ did not refer to any specific broadcast content in relation to this aspect of the complaint. Their concerns appear to have been raised primarily as contextual background, and relate to issues of personal preference and programme selection and scheduling, which are not within the Authority’s jurisdiction to consider and should ordinarily be treated as feedback to the broadcaster.

[114]  We therefore decline jurisdiction to accept UJ’s complaint under these standards.

For the above reasons the Authority upholds the complaint that the broadcast by SKY Network Television Ltd of Sky News New Zealand on 15 March 2019 breached Standards 4 and 5 of the Pay Television Code of Broadcasting Practice. The Authority declines jurisdiction to accept the complaint under Standards 8, 9 and 11.

[115]  Having upheld aspects of this complaint, the Authority may make orders under sections 13 and 16 of the Broadcasting Act 1989. We invited submissions on orders from the parties. 

The parties’ submissions

[116]  UJ submitted:

  • The Authority’s decision suggested that SKY NZ would need to take a more proactive approach to monitoring the content of news channels on its platforms.
  • Publication of the decision in these circumstances may not be sufficient. SKY NZ did not take responsibility for the content, and, in its response to the initial complaint, did not find a breach.
  • Given the shocking violent coverage, a clear message needed to be sent and the maximum penalty should be considered. As such, SNNZ should be taken off the platform for 24 hours. This was necessary to send a signal that the content was extreme and should not have been broadcast.

[117]  SKY NZ submitted:

  • The Authority should have regard to the investigation report by Australian communications regulator, the Australian Communications and Media Authority (the ACMA),33 particularly the ACMA’s ‘acknowledgement of the exceptionally difficult and unique circumstances, and the forward-looking nature of their findings’. While SKY NZ acknowledged that the Authority must assess the complaint against New Zealand broadcasting standards, ‘it is useful to consider how the comparable body in Australia handled complaints about the same content’.
  • The events of 15 March were unprecedented and fast-moving. The decision to swap SNNZ to Fox Sport News was made within hours, and SKY NZ ‘were mindful that we were removing one of the main sources of 24/7 news from our customers at a time when there was significant demand for information.’
  • SKY NZ would welcome further discussion with the Authority about how it should handle content on pass-through news channels in the future, and guidelines to deal with tragedies like the Christchurch mosque shootings.

Our decision on orders

[118]  When the Authority upholds a complaint, we may make orders, including directing the broadcaster to pay costs to the Crown and/or to publish a statement. In rare cases, we can order a broadcaster to refrain from advertising or broadcasting for a period of 24 hours.

[119]  In determining whether orders are warranted, the factors we take into consideration are:34

  • the seriousness of the breach, and the number of upheld aspects of the complaint
  • the degree of harm caused to any individual, or to the audience generally
  • the objectives of the upheld standard(s)
  • the attitude and actions of the broadcaster in relation to the complaint (eg, whether the broadcaster upheld the complaint and/or took mitigating steps; or whether the broadcaster disputed the standards breach and/or aggravated any harm caused)
  • whether the decision will sufficiently remedy the breach and give guidance to broadcasters, or whether something more is needed to achieve a meaningful remedy or to send a signal to broadcasters
  • past decisions and/or orders in similar cases.

The ACMA investigation report

[120]  In this case, the broadcaster has submitted that we should also have regard to the findings contained in the ACMA’s investigation report into Australian broadcast coverage of the attacks. The ACMA noted that some material raised questions about whether there had been compliance with the Australian codes of broadcasting practice, but chose not to make any specific findings of individual breaches of the codes. The ACMA instead concluded:35

  1. Having reviewed the range of treatments of the alleged perpetrator and survivor footage that was broadcast, the ACMA considers that there was some material that raises questions about whether there was compliance with the broadcasting codes of practice. This is especially so where video footage of shooting at people was shown.
  2. However, given the level of responsibility shown by the broadcasters and the unique circumstances of this incident, the ACMA considers that finding individual contraventions of the codes would have little regulatory or educative benefit.
  3. Instead the ACMA considers that this investigation would more usefully prompt a productive conversation with industry about whether its codes are adequately framed to deal with this type of material in the future – in particular, perpetrator-generated, live streamed extreme violent material.

[121]  While the ACMA’s investigation report provides us with insight as to the Australian regulator’s views on this broadcast coverage and compliance with Australian regulatory expectations, we are acting under different circumstances. The ACMA assessed the broadcast livestream footage as part of its own-motion investigation. It was not acting, as this Authority is, as a tribunal in determination of a complaint. In contrast, we have received a complaint and have determined that a breach occurred with the potential to cause significant harm in New Zealand, and so we must now determine whether any orders should be made.  

[122]  SKY NZ refers to the ACMA’s findings as instructive on the basis that it had considered the ‘same content’. However, this overlooks that the Authority and the ACMA are looking at the application of standards (and the assessment of harm) in different communities. The ACMA has not considered the effect or harm caused by this content in New Zealand, as we have done in our determination of this complaint. Further, it is our role to assess and respond to the conduct of the New Zealand broadcaster within the context of codes of practice that apply in New Zealand.

Seriousness of the breach and attitude of the broadcaster

[123]  With respect to the factors referred to above at paragraph [119], we consider that the broadcast of these clips resulted in a serious breach of two broadcasting standards (violence and law and order) which had the potential to cause significant harm to individuals and the community, particularly the Muslim community, in New Zealand.

[124]  While SKY TV did not make editorial decisions in the production of the programme, we found that the risks should have been clear to the New Zealand broadcaster and SKY NZ needed to intervene earlier to ensure audiences in New Zealand were adequately protected. While we acknowledge SKY NZ’s submissions that SNNZ was eventually removed from the SKY NZ platform, this action came too late (approximately three and a half hours after the first use of the livestream footage), and more should have been done by SKY NZ to mitigate the potential for harm, which was significant.

[125]  In terms of the broadcaster’s response, SKY NZ did not uphold the initial complaint and relied heavily on its position as a pay television platform hosting the channel. It submitted that it exercised no editorial control over SNNZ and therefore could not be held accountable for the alleged breaches.

[126]  In its response to the provisional decision, SKY NZ does not demonstrate any acceptance that the decision to remove the SNNZ feed should have been made earlier. While it indicates that it would welcome discussions with the Authority about how it should handle content on foreign pass-through channels, it does not expressly acknowledge or accept the guidance contained in the Authority’s provisional decision. The level of remorse therefore appears to be low.

[127]  We acknowledge that this was an unprecedented situation for broadcasters in New Zealand. We also acknowledge the broadcaster’s submission that Sky News Australia did eventually take action with SKY NZ to remove the channel from the platform. However, we have found that this action should have been taken much earlier, and if it had, the particularly serious harmful content would not have been broadcast in New Zealand. Accordingly, in our view the mitigating effect of this action is substantially reduced.

Past conduct and previous decisions

[128]  There have been few upheld decisions against SKY NZ in recent years, which we acknowledge is a mitigating factor.

[129]  With respect to previous decisions, there is little guidance available on the issue of foreign pass-through channels. However, two previous decisions of the Authority, Hamilton and Livesey and TelstraClear,36 considered a programme supply agreement between SKY NZ and TelstraClear. In these cases, the programmes subject to complaint were made available to subscribers of both SKY NZ and TelstraClear due to a programme supply agreement between the two organisations.

[130]  In its submissions on orders, TelstraClear argued that it was not a ‘broadcaster’ under the Broadcasting Act 1989 ‘because it re-transmitted television programmes broadcast by SKY’, and had no control over the content of broadcasts. The Authority rejected TelstraClear’s argument that it was not a broadcaster and did not accept that its liability should be reduced. It noted:

The Broadcasting Act makes clear that broadcasters are responsible for broadcasting standards in relation to the programmes which they broadcast, irrespective of the degree of control they have over specific content.

[131]  In Hamilton, the Authority ordered TelstraClear to pay costs to the Crown of $1,500 for a breach of the good taste and decency and children’s interests standards. In Livesey, the Authority found that publication of its decision was sufficient, but noted that TelstraClear possessed the necessary technology to comply with an order to broadcast a statement, should such an order have been made.

[132]  Having considered the various factors above, we now consider whether any of the orders available to us under the Broadcasting Act 1989 ought to be made.

Refrain from broadcasting

[133]  The complainant has requested that SNNZ be removed from the SKY platform for a period of 24 hours. Under section 13(1)(b)(i) of the Broadcasting Act, the Authority can order a broadcaster to refrain from broadcasting the programme subject to complaint for a period not exceeding 24 hours. In this case, SKY NZ would therefore need to remove the SNNZ channel in its entirety from the platform.

[134]  The order to refrain from broadcasting should be made ‘rarely and only in exceptional circumstances’.37 By way of guidance, the Authority has previously considered the below factors when deciding whether to make an order for a broadcaster to refrain from advertising.38 We consider these factors are also relevant to our assessment of whether an order to refrain from broadcasting is appropriate. Such a case should involve:

  • Numerous and serious deficiencies
  • Significant personal damage
  • Denial of natural justice
  • Breach of professional ethics
  • Breach of responsible journalism
  • Substantial harm to individuals or society generally.

[135]  While we agree there was a substantial risk of harm to audiences and two standards have been breached, we do not consider that an order to refrain from broadcasting would be an appropriate or proportionate response in this case, given the exceptional circumstances and the mitigating factors listed below at paragraph [138].

Costs to the Crown

[136]  The Authority may make an award of costs to the Crown having regard to various factors, including the conduct of the broadcaster, the seriousness of the breach of standards and previous decisions. Under section 16(4) of the Act, the maximum amount of costs to the Crown we are able to award is $5,000.

[137]  In determining whether an order of costs to the Crown is warranted, we have considered the below aggravating factors:

  • The breach was at the serious end of the scale, resulting in significant potential harm.
  • We are advised that mitigating steps to remove the channel from the platform were initiated by a third party (Sky News Australia), rather than by SKY NZ. The steps were not taken early enough to prevent significant harm (and there was no indication that risk of harm to audiences was a motivating factor for this decision. The driver appears to have been to avoid legal culpability).
  • Multiple standards have been breached.
  • The broadcaster did not uphold the complaint in the first instance and has demonstrated no understanding of the guidance contained in the Authority’s decision, or remorse for the conduct.
  • Given the seriousness of the events and high level of distress in New Zealand, SKY NZ should have exercised heightened sensitivity over content broadcast on the platform.
  • SKY NZ is an experienced broadcaster with resources.

[138]  We have weighed the above factors against the following mitigating factors:

  • SKY NZ had limited control over the editorial decisions made by SNNZ, which we have found aggravated the potential harm.
  • Steps were eventually taken to mitigate harm by removing the channel from the platform.
  • These were challenging and unprecedented circumstances for broadcasters in New Zealand.
  • SKY NZ has demonstrated willingness to engage in discussions with the Authority on the issue of foreign pass-through channels and the broadcast of terrorist content.

[139]  We do not accept SKY NZ’s submissions that it could take no action to prevent harm in this case. While we acknowledge it had little editorial control over the programme itself, the news feed was eventually swapped and we have found that this action should have been taken earlier. The repeated airing of the footage increased the potential for harm and could have been avoided. Taking into account the factors above, in particular the conduct, the serious nature of the breaches and the harm arising, we consider an order of costs to the Crown ought to be made.

[140]  In these circumstances, and having regard to previous costs decisions, we therefore consider an order of $4,000 in costs to the Crown is appropriate.

Statement

[141]  We have also carefully considered whether the broadcast or publication of a statement would be appropriate in this case.

[142]  We agreed that a statement may risk causing additional trauma to the families of victims. Publication of our decision is in our view sufficient to mark the breach, deter similar breaches, and will also provide guidance to SKY NZ and other broadcasters in New Zealand. 

Concluding Comments

[143]  We acknowledge the significant impact the events of 15 March 2019 have had on New Zealanders, particularly on the family and friends of victims and the wider Muslim community. We also recognise that these events presented significant challenges for broadcasters in New Zealand. We have previously signalled that we intend to engage with broadcasters to determine whether the standards and guidelines contained in the Broadcasting Standards in New Zealand Codebook provide adequate guidance as to how to report on terrorism events. We will also engage with SKY NZ and other broadcasters on whether the guidelines relating to foreign pass-through channels are still fit‑for-purpose, and whether further guidance on this issue would assist.

Orders

1. Under section 16(4) of the Act, the Authority orders SKY Network Television Ltd to pay to the Crown costs in the amount of $4,000 within one month of the date of this decision.

The order for costs is enforceable in the Wellington District Court.

Signed for and on behalf of the Authority

 

 

Judge Bill Hastings

Chair

19 August 2019

 

Appendix

The correspondence listed below was received and considered by the Authority when it determined this complaint:

1             UJ’s formal complaint – 25 March 2019  

2             SKY NZ’s response to the complaint – 22 May 2019

3             UJ’s referral to the Authority – 22 May 2019

4             SKY NZ’s response to the referral – 7 June 2019

5             UJ’s further comments – 12 June 2019

6             SKY NZ’s further comments – 1 July 2019

7             UJ’s submissions on the provisional decision and orders – 31 July 2019

8             SKY NZ’s submissions on the provisional decision and orders – 2 and 12 August 2019


1 Christchurch shooting video officially objectionable, Media Release, Office of Film and Literature Classification, 20 March 2019. The full classification decision is available here (please be advised some of the content discussed could be distressing for the reader). In a decision dated 14 June 2019, the Film and Literature Board of Review also determined that the video ought to be deemed objectionable (decision available here).

2 Guidance from the Chief Censor, Media Release, 20 March 2019

3 As above, Media Release, 20 March 2019 

4 Christchurch attack publication 'The Great Replacement' classified objectionable, Media Release, Office of Film and Literature Classification, 23 March 2019. The full classification decision is available here.

5 The Pay Television Code, Broadcasting Standards in New Zealand Codebook, page 43

6 Commentary: Violence, Broadcasting Standards in New Zealand Codebook, page 14

7 The Pay Television Code, Broadcasting Standards in New Zealand Codebook, page 43

8 Commentary: Violence, Broadcasting Standards in New Zealand Codebook, page 14

9 Standard 2 – Programme Information, Guideline 2c

10 Guideline 4c

11 Guideline 4d

12 Guideline 4b

13 Guideline 4a

14 Guideline 5b

15 Guideline 5a

16 Morton and Television New Zealand Ltd, Decision No. 2017-004 at [8]

17 BBC Editorial Guidelines: General Acceptability of Strong and Violent Images (now incorporated into new Guidelines available at www.bbc.com/editorialguidelines).

18 Classification Decision, ‘Christchurch Mosque Attack Livestream, Office of Film and Literature Classification, pages 5-6 and 8

19 Christchurch attacks provide a new ethics lesson for professional media (The Conversation, 20 March 2019)

20 Jean-Paul Mathoz, UNESCO 2017, at page 49

21 Jean-Paul Mathoz, UNESCO 2017, at page 60

22 As above, at page 60

23 Christchurch attacks provide a new ethics lesson for professional media (The Conversation, 20 March 2019)

24 The Oxygen of Amplification: Better Practices for Reporting on Extremists, Antagonists, and Manipulators, Whitney Phillips, 22 May 2018, Part 3, page 15 (Data & Society ‘Media Manipulation Initiative’, available here)

25 Classification Decision, ‘Christchurch Mosque Attack Livestream, Office of Film and Literature Classification, page 5

26 Commentary: Violence, Broadcasting Standards in New Zealand Codebook, page 14

27 Commentary: Law and Order, Broadcasting Standards in New Zealand Codebook, page 15

28 As above

29 As above

30 As above 

31 As above

32 The Oxygen of Amplification: Better Practices for Reporting on Extremists, Antagonists, and Manipulators, Whitney Phillips, 22 May 2018, Part 3, page 17 (Data & Society ‘Media Manipulation Initiative’, available here)

33 The ACMA undertook an own-motion investigation into coverage by Australian broadcasters of the Christchurch terrorist attack. The report was released on 22 July 2019 (which was after the Authority had reached its provisional decision on the substance of this complaint) and is available to view at: https://www.acma.gov.au/theACMA/2019-television-investigations

34 Guide to the BSA Complaints Process for Television and Radio Programmes, Broadcasting Standards in New Zealand Codebook, page 58

35 See pages 3-4

36 Decision Nos. 2004-094 and 2007-092

37 Barnes and ALT TV, Decision No. 2007-029

38Diocese of Dunedin & 12 Others and TV3 Network Services, Decision No. 1999-125-137