COMPLAINT AGAINST SUNDAY STAR-TIMES

The Discussion

15. The Press Council can only concern itself with the complaints about possible breaches of the Press Council principles and similar ethical matters. Matters of the ownership of published material, or of editorial supervision fall outside its terms of reference. Equally, while it is clear that the complainant and Mr Milne have different views about the level of support within the family for the complaint, the Press Council cannot enquire into, or determine, matters in dispute within the complainant’s family.

16. Much of the article consists of the author’s childhood memories, which are unremarkable and are as much about the author as about her grandparents, and of her feelings on the end of her relationship with her partner. None of this material raises issues of the grandmother’s privacy.

17. However, there is no doubt that some of the material published in the article, and in particular the love letters, was personal and private, and should not have been published without the consent of its subject, the journalist’s grandmother. It is noted that the law does not generally accord privacy rights to deceased persons and, accordingly, there can be no breach of her grandfather’s privacy.

18. The Press Council also notes that while it is certainly of the view that the vulnerable elderly need consideration and protection where warranted, it has previously (case of Cooper v Manawatu Standard) found that

• dementia is not considered by the courts to warrant the automatic privacy given to victims of sexual abuse, for example;
• it would be impractical and unreasonable to require editors to check the competence of every old person, let alone every person in a possibly vulnerable group;
• in the circumstances of that case there was no need for a general rule against identifying people suffering a condition (dementia) that has become more common with increasing human longevity, but it did raise a question that possibly deserves more discussion within the industry and the wider community.

Accordingly it cannot be said that publication of the grandmother’s name and other identifying details were automatically precluded because of her mental state.

19. The main question, therefore, is of consent to publication of excerpts from the private communications of the grandmother. All parties appear to agree that at the time of publication, the grandmother was not capable of giving consent. Her mental state is clearly described in the article. This distinguishes this case from the one cited above where the main issue was whether the person who was the subject of the published material was competent to give consent. However, the two cases remain similar in that they pose the question of the extent of an editor’s duty to ensure that there is valid consent.

20. The editor refers to an interview some years earlier and appears to submit that the article is based on that interview, where clearly valid consent was given. However, the material that the complainant is most concerned about consists of information about the grandmother’s recent and current state of health, both physical and mental, and the love letters. Neither of these can have been the subject of the earlier interview.

21. There is no evidence that there were any editorial enquiries into consent issues prior to publication. Given that the grandmother was named, that the article mentioned what could be highly sensitive health information, along with the intimate detail of the love letters, such enquiries should have been made. Consent could not be inferred from the fact that the article was written by a member of the subject’s family.

22, It should have been obvious to the editor that the grandmother was in a very fragile state of health and not capable of giving consent. Given that the article was written by a staff member who was also the granddaughter of the recipient of the sensitive material, the majority are well satisfied that the editor should have taken steps to be sure that a valid consent existed to the publication of the most sensitive of correspondence … love letters from many, many years before. Critically, the story in the love letters belonged not to the family but to the grandmother and her alone

23. Further the majority are satisfied that the grandmother's right to privacy outweighs any public interest. The portion dealing with the letters carries little genuine public interest.

24. The Press Council has considered the relevance of the various powers of attorney held by members of the family and the possibility that holders of those powers of attorney could have given or withheld consent to publication. However it is not the function of the Council to decide points of law, and in any event, it is reasonably clear that no consent of any sort was sought or given prior to publication. The Council expresses no opinion on the legal issues.

25. On the question of accuracy, it seems there was an inaccuracy in describing the grandmother as suffering from Alzheimer’s disease. In the context of the article, the Press Council does not regard this or any other minor inaccuracies as material.

26. We stress that this decision is based on the facts of this case alone and in no way sets any precedence.

Decision

The complaint is upheld by a majority of 8:2.

Dissent from Tim Watkin and John Roughan

We dissent from the majority view because we believe it puts unreasonable expectations on editors and could have a chilling effect on narrative journalism.

The journalist and her mother clearly believed they were free to use the letters and the newspaper acted in good faith, reasonably assuming it had family consent. (We don’t believe the fact that the stories were written down, as opposed to shared verbally, is critical; oral stories could be just as private or worthy of consent). To expect an editor to get consent from every family member – potentially, every person – involved in a story is unrealistic, as is the assumption people’s lives can be disentangled. Where does it end? No one is an island and the stories belonged to the family – including the journalist – as well as the grandmother; the complainant cannot claim veto.

Undoubtedly, the grandmother did not consent to the use of the letters. However to disqualify family members from acting as proxy in such cases (even members of a divided family), we risk editors feeling unable to commission important, first person journalism in the public interest on issues such as dementia, brain injury, mental illness and more. Because, contrary to the complainant, we do believe such real, personal stories are in the public interest.

Crucially, the letters were used not to expose or exploit, but to express love and admiration for the author’s grandmother and grandfather. Had it been otherwise we would not dissent, but clearly no offence was intended; we – sadly – cannot know whether the grandmother was offended (the family is divided on that point); and neither can we say if it did her harm. For us, this standard of consent sets the bar too high.

Press Council members upholding the complaint were Sir John Hansen, Liz Brown, Ruth Buddicom, Jo Cribb, Chris Darlow, Tiumalu Peter Fa’afiu, Jenny Farrell, Hank Schouten.

Press Council members dissenting from this decision were John Roughan and Tim Watkin.

Mark Stevens took no part in the consideration of this complaint.