TA'AFULI ANDREW FIU AGAINST NEW ZEALAND HERALD

The Response

[12] In a response to Mr Fiu about ‘accuracy’, New Zealand Herald senior newsroom editor, Oskar Alley, has described the article as being “entirely accurate” as it “reports on the New South Wales judge’s decision and the background to Pono’s death.In responding to the complaint of ‘balance’ Mr Alley stated there had been several attempts to contact the family of Pono Aperahama, “we have made repeated approaches to both the mother and father’s sides of the families for an interview”.

[13] Mr Alley further added that the publication of the article was delayed by “several days” as theNew Zealand Herald was unsuccessful in being able to obtain “interviews with family members.”The reporter had approached “both sides to the dispute” but they “either declined to comment or did not respond”.

[14] Addressing the provision set out in Principle 2 (Privacy) Mr Alley has said that theNew Zealand Herald considers there to be “a strong public interest in this matter” on the basis that “an Australian court has been asked to rule on a matter of tikanga Māori, setting an important legal precedent in relation to the death of New Zealanders in Australia.”

[15] Mr Alley has said “Pono’s death in unusual circumstances was already in the public domain and had received extensive media coverage two months before the Supreme Court decision was issued.”Mr Alley has again stated that theNew Zealand Herald believes “the legal debate and precedent to be of significant public interest and relevance.”

[16] In response to the point raised by Mr Fiu that the “family is still suffering from extreme grief” Mr Alley has said, “this matter has now become a legal case conducted in the public forum of a courtroom.”Mr Alley has further added, “We do not suggest there is a timeline for grief to pass, but I note that Pono’s death took place in October last year and this article addresses the more recent matter of the court case.”Mr Alley further emphasises that “The matter was firmly in the public arena by the time his mother and father went to the Supreme Court to seek a ruling over funeral arrangements.The case was heard in an open court and the judge’s decision was issued publicly, putting this matter squarely in the realm of the public domain.”

[17] Mr Alley addressed Mr Fiu’s main concern which he says, “appears to be the publication of information posted on Facebook.”Mr Alley has explained that the “court was told that the battle over Pono’s remains had become very bitter and produced an extensive argument between the mother and father’s families.This bad blood is confirmed in a series of Facebook messages that began as private messages but have since been re-posted publicly.”

[18] Subsequent to the original response from the New Zealand Herald Mr Alley has provided further commentary on the “social media exchanges between Pono’s mother and sister” in which he has explained “these were conducted on [Pono Aperahama’s] sister’s Facebook page, which has no privacy settings, and are there for anyone to read.Several exchanges take place over more than a week and include a bitter dispute not just over the legal fight over Pono’s body but also other issues pre-dating the boy’s death by many years.”

[19] Mr Alley agreed with Mr Fiu that the inclusion of the swear words in the Facebook comments which was embedded into the article as an image was not appropriate, “…you make a very valid point about the severity of the language used and I have removed the Facebook embed from the article early this morning.”

[20] In considering the use of “a photograph of Pono” Mr Alley has advised “this image has been used extensively by both Australian and New Zealand-based media.”

[21] A key focus of Mr Fiu’s complaint was whether permission was sought by New Zealand Herald to use the Facebook comments and photographs from members of the deceased’s family.In response to this, Mr Alley has stated “Please be advised that the media does not require permission to re-publish information posted on social media.”

[22] Mr Alley referred to a previous ruling by this Council in favour of the media being able to re-publish images from social media sites on the basis that “a reasonable attempt is made to contact the page administrator (in this case we have repeatedly made such approaches, spanning several days).”He added further comment on this matter in a subsequent response to Mr Fiu’s complaint, “As explained to Mr Fiu, the Council has previously ruled that the internet is a public place and an open social media page indicates an implied use for news purposes. That said, the two participants in the Facebook exchange were both contacted to seek interviews and the article was delayed in the hope both parties would agree to speak.”

[23] In response to Mr Fiu’s suggestion that the New Zealand Herald has attempted to “highlight a lower image of Māori as below standard people within our communities both in Australia and New Zealand.” Mr Alley has provided the following response to Mr Fiu, “As outlined earlier, this case establishes a legal precedent over what can be done with the body of a New Zealander who dies in Australia – this has potential consequences for the future.”A subsequent response from Mr Alley states “Such a suggestion is rejected” on the basis that “Pono’s parents’ Māori heritage and clashing tikanga beliefs were directly relevant to the court case.The publication of the Facebook exchanges between mother and sister served to highlight the bitter background to this dispute and to illustrate the depth of feeling.Publishing an embed of the Facebook exchange was not done to embarrass either party, and it was certainly not done to denigrate Māori in general.The post provided an unfiltered insight of a public falling out between relatives and serves to demonstrate how estranged the two sides of the family had become and why going to court was necessary to resolve the dispute over Pono’s funeral arrangements.”