DAVID BAIN AGAINST THE NZ HERALD

Case Number: 3571

Council Meeting: 21 October 2024

Decision: Upheld

Publication:

Principle:

Ruling Categories:

Overview

  1. David Bain complains about an article titled The Bain murders 30 years on: David Bain living under new name with family in Waikato published by the NZ Herald on 20 June 2024. The complaint raises Media Council Principles (2) Privacy and (3) Children and Young People. The complaint is upheld in relation to the reporting of details regarding the children. The complaint is not upheld in relation to the general claim of a breach of privacy.

The Article

  1. The article begins by noting it was the 30th anniversary of the Bain family deaths. It states that Mr Bain would likely spend the day at his rural Waikato home. Various aspects of the article touch on the events that lead to the criminal proceedings against Mr Bain and his eventual acquittal. These include comments from others who were affected by those events. Relevantly for this complaint the article reports on what Mr Bain had done since his acquittal and in particular:
    1. Refers to his children, their gender, years of birth and refers to one of them by name.
    2. Notes that they are now living in a rural property near Cambridge.
    3. Notes that Mr Bain had changed his name by deed poll and refers to another deed poll change to a new name which Mr Bain now uses.
    4. Notes that his wife (also referred to by name) teaches at a nearby school.
    5. States that the NZ Herald had visited Mr Bain’s home, had spoken to him and that during that exchange he confirmed his new name. It also notes various details about the property.

The Complaint

  1. David Bain, through his lawyers, considers that this media coverage is harmful and that he and his family have avoided media attention and sought to be left alone. Mr Bain recognises there will be interest in the 30th anniversary of the deaths of his family, however, he does not consider that it is reasonable, ethical or in the public interest to harass him or his family.
  2. In particular, he complains on the basis that the NZ Herald:
    1. Has identified where he lives
    2. Reported the name of one of his children
    3. Reported where his wife works and published personal details about her
    4. Used his new name and falsely reported that he had confirmed his new name.
      1. He considers that his first name change was only public because it had been unlawfully obtained by another publication. His second name change was not in the public domain.
    5. Trespassed on Mr Bain’s property in order to obtain information or a comment by Mr Bain.
  3. He considers that he is not a public figure and has taken every step not to be regarded in this way.
  4. He considers this reporting has undermined his and his family’s right to privacy creating unnecessary stress and harm issues for the whole family.
  5. He considers that this reporting has destroyed the years of hard work it has taken his family to move to a location where they feel safe. Until recently they have been able to live ‘fairly anonymously’ and created an area which is a positive place to both live and work in.

    The Response

    1. The NZ Herald considers the Bain case is arguably one of the most debated court verdicts in this history of the New Zealand justice system. There has always been a strong level of public discussion and the interest and debate continue today.
    2. The NZ Herald denies there has been any breach of privacy. Mr Bain’s claim that he is not a public figure is demonstrably untrue, even if he now seeks to lead a private life.
      1. In the past Mr Bain has sold his story, including details of his personal life, to some publishers.
      2. He and his wife have previously posed for photographs.
      3. The fact he formally changed his name has been in the public domain since 2017. The fact that he has now changed that name again does not constitute a separate and second new identity. Moreover, formally changing one’s name does not stop one from being a public figure.
      4. His home is not directly identified. The article merely states, ‘rural Waikato’ and a ‘rural property near Cambridge’. It does not indicate where it is located in a large area, which is home to population of 21,800 people.
      5. Reference to Mr Bain’s wife is limited to the fact she teaches at a nearby school. This could be any one of 36 possibilities. It has previously been reported that she is a trained teacher.
      6. In any event, the fact Mr Bain is living in Cambridge was already public information when the article was published as other media outlets had already reported on it.
    3. The NZ Herald’s position regarding the reference to Mr Bain’s children is that the article adds no new information to what is already in the public domain about them. The fact that Mr Bain has children was referred to in a podcast interview with Joe Karam (a long-term supporter of Mr Bain) and linked to in the article itself. The name of one of these children (used in the article) has been in the public domain since that child was born.
    4. It would have been unfair to report on the 30th anniversary of the Bain family deaths without seeking comment from Mr Bain. It denies there was any harassment of Mr Bain, or that its reporter trespassed on his property. The reporter knocked on his front door, it was answered by Mr Bain and during the course of the short conversation, he confirmed the new variation of his name to the reporter. He was not compelled to answer the door or answer any questions. He chose to do so. He declined to be interviewed and the reporter left.
    5. Overall, the NZ Herald considers that the article did not create any new or extra undue risk for Mr Bain or his family. He is a public figure and there remains an exceptional degree of public interest in the Bain case. There is no legal right to be forgotten, and a change of name will not erase 30 years of debate and media coverage. It would set a dangerous precedent if this was possible.

    Final Comments

    1. In his final comments (also through his lawyers) Mr Bain largely rejects the NZ Herald’s response. He notes:
      1. Mr Bain’s new name has not been in the public domain since 2017.
      2. Although Mr Bain has been paid for his story in the past, this was driven by his circumstances and his inability to obtain work. Previously, Mr Bain and his wife have posed for photographs, however, this is only because they were told that if they did not do so a photograph would be obtained anyway. That was the last time they have engaged with the media.
      3. Mr Bain had no option but to engage with the NZ Herald reporter as she entered his section and intruded on him at his family home. He says the NZ Herald has put its own slant on how this interaction took place.
      4. Mr Bain and his family have sought, and obtained, non-disclosure on their Department of Internal Affairs files. Any unapproved acquisition or publication of that information (i.e. their daughter’s name) is a breach of that non-disclosure.
      5. The NZ Herald has potentially caused irreparable damage to Mr Bain’s family by publishing information that will ensure their children can be easily identified.

    The Discussion

    1. We note that Mr Bain’s complaint is wide ranging and raises issues beyond the scope of the Media Council, which is limited to deciding if there has been a breach of our Principles. We only refer to those aspects of the information provided that are relevant to that question. We also note that Mr Bain made a very similar complaint about parallel reporting by the Otago Daily Times. We discuss that separate complaint in Ruling 3570.
    2. Two Media Council principles are relevant. They are Principles (2) Privacy and (3) Children and Young People. Principle (2) states:
      Everyone is normally entitled to privacy of person, space and personal information and these rights should be respected by publications. Nevertheless, the right of privacy should not interfere with publication of significant matters of public record or public interest. Publications should exercise particular care and discretion before identifying relatives of persons convicted or accused of crime where the reference to them is not relevant to the matter reported. Those suffering from trauma or grief call for special consideration.
    3. We do not consider that the NZ Herald has breached this principle. Mr Bain is a public figure. He may not have sought this and he may be deeply uncomfortable with it, but there is significant public interest in him because of the fact his family members died, he was found guilty of their murders and later acquitted. We agree with the NZ Herald that there has always been a strong level of public discussion about this case and Mr Bain and the interest and debate continues today.
    4. Mr Bain may now wish to avoid the media but that has not always been the case and aspects of his personal life, for example that he has a wife (who she is and her profession) and that he has children, are matters that are already generally known. The 30th anniversary of the Bain family deaths is a significant anniversary and it was open to the NZ Herald to report on it.
    5. As we note in David Bain against the Otago Daily Times Ruling 3570, simply reporting on the general location in which Mr Bain now lives does not breach his privacy. It is a large area and home to many people.
    6. Likewise, it was not a breach of Principle (2) for the article to note that Mr Bain’s wife teaches at a local school. The particular school was not identified and the fact she is a teacher is already well known.
    7. The Media Council is in no position to rule on whether the visit to Mr Bain’s property by the NZ Herald reporter was a trespass. Nor can we establish the truth of what was said during that encounter. Mr Bain remains a public figure and, assuming there was no trespass, it was not a breach of his privacy for a reporter to seek comment from him.
    8. The NZ Herald says that Mr Bain confirmed the new name he goes by during that encounter. Mr Bain says that he did not. We cannot resolve this. However, we do not think it was a breach of Principle (2) for the NZ Herald to report on the fact Mr Bain had changed his name via deed poll. As we observe in Ruling 3570 this change was already widely known. As to the use of a further new name it would appear that this is simply a variant of the originally changed name. In any event, we agree with the NZ Herald that simply changing one’s name, even if this is done multiple times, does not change the fact that Mr Bain is a public figure and there is a legitimate public interest in reporting on him from time to time, including what he calls himself.
    9. Finally, Mr Bain complains about the reference to his children. Media Council Principle (3) Children and Young People states: In cases involving children and young people editors must demonstrate an exceptional degree of public interest to override the interests of the child or young person.
    10. In the reporting complained of in Ruling 3570 it was only the fact that Mr Bain has children that was reported. Certainly, this information is in the public domain and the NZ Herald correctly notes that Joe Karam, a long-time supporter of Mr Bain, mentions that fact in a recent interview linked to in the report. We do not consider reporting on the existence of Mr Bain’s children breaches our principles. However, this article differs from [a,b,c] because the NZ Herald also chose to report their years of birth and named one of them.
    11. The NZ Herald maintains that this information was already in the public domain, although it does not provide any details. It appears that the NZ Herald and other publications have previously reported on various details regarding the children, including on the birth of a child and their name. We have no information regarding how that reporting came about and it does not appear that a complaint was made about it at the time. The NZ Herald maintains that this information was already in the public domain, although it does not provide any details. It appears that the NZ Herald and other publications have previously reported on various details regarding the children, including on the birth of a child and their name. We have no information regarding how that reporting came about and it does not appear that a complaint was made about it at the time.
    12. However, we do not think that this is a complete answer to the question of whether those details ought to have been published in this article. Simply because something happens to be in the public domain does not mean that it can repeated in all circumstances. It is necessary for publishers to make an assessment in each instance where reference to children is made as to whether publication will appropriately override their interests or not.
    13. In this case we consider that Principle (3) must be read alongside Principle (2) which states, in part, that “[p]ublications should exercise particular care and discretion before identifying relatives of persons convicted or accused of crime where the reference to them is not relevant to the matter reported”.
    14. This article focused on the 30th anniversary of the Bain family deaths and the events which followed. We accept that there is public interest in Mr Bain and his life following those events. We accept that the fact Mr Bain has children is public knowledge and is of some interest in relation to Mr Bain’s life. However, we do not consider there was any public interest in reporting the name of one of his children. That child has done nothing noteworthy and reference to their name and age is not relevant to the matter reported. The same point applies to the reporting of the children’s years of birth. The fact this information may have been reported on previously does not automatically mean it was appropriate to repeat it in the context of this report.
    15. Mr Bain is a public figure of enduring interest. It is understandable that he wishes to move on and be forgotten. However, it does not breach our principles for the NZ Herald to report on what Mr Bain is doing today. At least some of the information reported on has been previously made public by Mr Bain or his wife. Likewise, we do not think it was a breach of our principles to report in a very generic way on the location in which he lives or what his wife does. However, our principles make it clear that children are deserving of special consideration. We do not think it was a breach to refer to their existence, but we think reporting on their ages and a name went too far and was an unnecessary detail in the context of this reporting which focused on the 30th anniversary of the Bain family deaths.
    16. The complaint is not upheld in relation to the general claim of a breach of Principle (2) Privacy.
    17. The complaint is upheld under Principles (2) Privacy and (3) Children and Young People in relation to the reporting of details regarding the children.



    Council members considering the complaint were the Hon Raynor Asher (Chair), Hank Schouten, Guy MacGibbon, Ben France-Hudson, Jo Cribb, Judi Jones, Marie Shroff, Alison Thom and Richard Pamatatau.

    Council members Katrina Bennett and Scott Inglis declared conflicts of interest with the complaint and did not vote.

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