DAVID BAIN AGAINST THE OTAGO DAILY TIMES

Case Number: 3570

Council Meeting: 21 October 2024

Decision: Not Upheld

Publication: Otago Daily Times

Principle: Privacy
Children and Young People

Ruling Categories:

Overview

  1. David Bain complains about an article Bain’s new life in Cambridge published by the Otago Daily Times (ODT) on 12 June 2024. The complaint raises Media Council Principles (2) Privacy and (3) Children and Young People. The complaint is not upheld.

The Article

  1. The article begins by noting that it was understood David Bain, and his family, are now living in Waikato. It mentions that the 30th anniversary of the events that led to the criminal proceedings against Mr Bain and his eventual acquittal was approaching.
  2. It contains several quotes from members of the Waikato community. Relevantly for this complaint the article:
    1. Refers to David Bain by his new name and notes that he has changed his name by deed poll.
    2. Notes that his wife is working as a teacher at a local primary school and the year level she teaches. It also includes comments from the principal of the school that she is a well-respected and liked member of the school.
    3. Notes that she is recorded as living on a $1.27 million lifestyle block on the rural outskirts of the town.
    4. Contains a quote from a mother whose children attended school with David Bain’s children.

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. He 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 bring him and his family into the spotlight.
  2. 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 a positive place to live and work in.
  3. He complains that the ODT has breached Media Council principles 2 (Privacy) and 3 (Children and Young People) privacy by:
    1. Publishing 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.
    2. Identifying the town where he lives.
    3. Publishing the occupation of his wife and speaking with people associated with her school.
    4. Attempting to, or engaging photographers to take photo of his family.
    5. Showing a disregard to the interests of his children by publication of their new family names, where they live and details about their mother’s workplace.
  4. He considers that he is not a public figure and has taken every step not to be regarded in this way.

The Response

  1. The ODT stands by its story. It considers that the 30th anniversary of the Bain family deaths is a significant one and this remains a high profile, and newsworthy, story. Mr Bain may wish it were otherwise, but he is a public figure, and his story includes what has happened to him in subsequent years. Reporting on what he is doing now is a natural consequence. This means that his family will also attract attention.
  2. It rejects the suggestion it has identified where Mr Bain lives. More than 20,000 people live in Cambridge and reference to the town only would not specifically reveal Mr Bain’s address. Nor would the fact that he lives on a lifestyle block on the rural outskirts of the town.
  3. It notes that the fact Mr Bain changed his name is already a matter of public record and it has not made public anything that was not already public knowledge. It links to several articles from other publishers in 2017 noting the name change and what it was changed to. It is unaware of any issues regarding the way that information was obtained, and this would not change the fact that name is already in the public domain.
  4. The ODT states that while it did approach two photographers with the intention of commissioning a new photo of Mr Bain, no photo was ultimately ordered and an archival photo (to which Mr Bain had consented) was used instead.
  5. The ODT notes that the Media Council principle (2) states that the right to privacy should be respected but “nevertheless, the right of privacy should not interfere with publication of significant matters of public record or interest”. Mr Bain remains of considerable public interest. His current whereabouts were reported responsibly and with due regard to his privacy.
  6. In relation to Mr Bain’s wife the OTD maintains that it respected principle (2) by limited reference to her through the high praise of the principal at the school she works at.
  7. The ODT acknowledges principle (3) regarding children and young people. However, it refers to academic commentary suggesting that the behaviour of parents can reduce a child’s reasonable expectation of privacy. In any event, it considers that it has struck a careful balance in its reporting in relation to the children:
    1. It has protected the privacy of Mr Bain’s children. It referenced only a local primary school and did not name the school the children attended. There are several schools in and around Cambridge and this would not have led the curious to a particular school.
    2. It only reported that Mr Bain had children, and did not report on how many children, their ages, or refer to them by name. There is much more information already in the public domain, which the ODT chose not to publish.
  8. It rejects the claim that its reporting has caused safety or harm issues for Mr Bain and his family. Its reporting illustrates that many people already knew Mr Bain lived in the community and had taken that presence in their stride.
  9. Overall, the ODT considers that its reporting was careful and as non-specific as possible. It has not harassed Mr Bain, nor does its reporting impinge on Mr Bain’s ability to live safely, or ‘fairly anonymously’.

Final Comments

  1. In his final comments (also through his lawyers) Mr Bain largely rejects the ODT’s response. He notes:
    1. The ODT did not only use Mr Bain’s changed name, but also another name he now uses. This was the first article that put that new name in the public domain.
    2. The reason no photograph was commissioned was because no photographer would agree to do it.
    3. The assertion there is much more information about Mr Bain’s children in the public domain is made without any proof and is inaccurate. The children’s names were not already in the public domain.
    4. The ODT is minimising the impact their reporting has had on Mr Bain and his family and the extent to which it intrudes on his family life. After 30 years he should be entitled to his privacy and safety.

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 also made a very similar complaint about parallel reporting by the NZ Herald. We discuss that separate complaint in decision [x,y,z].
  2. Two of our principles are relevant, 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 ODT 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.
  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 (her name and her profession) and that he has children, are matters that are already generally known. The 30th anniversary of the deaths is a significant one and we agree with the ODT that the question of what Mr Bain and his family are doing now is a natural consequence.
  5. Where Mr Bain is now living is a relevant aspect of that question and we do not think that, simply by referring to the general area of New Zealand in which Mr Bain lives, his privacy was breached. It would be very difficult, if not impossible, to identify precisely where Mr Bain lives based on the information in the article.
  6. It was not a breach of Principle (2) for the ODT to refer to Mr Bain by his new name. The fact that he had changed his name by deed poll is a matter of public record and has been for some time, as evidenced by the articles the ODT refers to. This story added nothing that was not already known. Mr Bain complains that the ODT referred to him by another new name he goes by. However, we cannot see reference to that name in this article. As a result, we put the question of whether that may have breached his privacy to one side.
  7. Neither did it breach Principle (2) for the ODT to ask members of the community in which Mr Bain lives for their views. Most of the comments are generic. The principal of the school Mr Bain’s wife teaches at provided his, very positive, view. It was not a breach of her privacy for the ODT to ask that question or to report on an answer willingly given. This is straightforward journalism.
  8. With regards to photographs we are in no position to determine if the ODT ultimately decided against going ahead, or whether they were unable to find a photographer prepared to accept the commission. Ultimately, no photo was taken and we are unable to make any comment on a hypothetical.
  9. Finally, Mr Bain complains about the reference to his children. Principle (3) Children and Young People states that:
    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. We do not consider that reporting Mr Bain has children breaches this principle because it does not identify his children. The article includes a statement that Mr Bain and his wife are living in New Zealand with their children, and a quote from an unidentified mother whose children went to school with Mr Bain’s children. Contrary to My Bain’s assertion, there is no direct reference to them or any directly identifying features. The fact that Mr Bain has children is already a matter of public record and we do not consider that reference to the children in this way adds anything to what is already known. Many people would simply assume from the fact Mr Bain has children that they will go to school in the community in which they live. Confirming this does not add anything that which is already known or override the children’s interests.
  11. Ultimately, 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 ODT to report on what Mr Bain is doing today and there is nothing in what was reported that goes too far.
  12. The complaint is not upheld.

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

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