There would be few New Zealanders who are not aware that on Wednesday afternoon, after six days of desperate waiting, family members of the men trapped in the Pike River mine were informed that an second explosion had occurred. There could be no survivors. Family members were informed of the explosion at a public meeting. Numerous media were gathered outside. As the family members emerged from the meeting, just moments after receiving the news, their every expression and reaction was filmed and photographed by waiting reporters. These people did not want their pictures taken. Some gave hand gestures and others told photographers to ‘f%^* off’. Photographs were nonetheless taken and printed. Within hours, detailed images of relatives’ faces were circulated around the world. They appeared on the websites of The New York Times, The Melbourne Age, The Sydney Herald, The Times, The Guardian and the Telegraph. A montage of the same grief-stricken faces (including those of two primary school age children) were spread across the front page of the New Zealand Herald the next morning. Similar photographs appeared on page 2 of the Dominion. Concern has been raised that by disseminating these images, the media have turned individual grief into a commodity to be captured, printed and sold. People are shown at their most desperate and vulnerable: mascara is running, faces are twisted with emotion, people are crying. TV footage shows relatives interrupting tears and intimate conversations to deal with encroaching media. Interviews reveal that for many family members media intrusion has made an already unbearable situation even worse.

It seems that the media’s conduct at Pike River crossed an ethical line. In my view, they have also crossed a legal one. There is a good argument, first, that some members of the media have committed the tort of breach of privacy. The tort’s first requirement is that the relatives had a reasonable expectation of privacy in respect of the events depicted in the images. This is almost certainly established. Courts have made it clear that individuals have a right to be left alone if they are experiencing something traumatic, distressing or humiliating, even if they are in a public place at the time. Leaving a meeting at which one has been told that there is no hope of finding one’s loved ones alive is a paradigmatic example of that situation. The tort’s second requirement is that the publicity given to the images be ‘highly offensive’ to an objective, reasonable person in the shoes of the individual being photographed. A number of factors make this coverage offensive. The photographs were published in the immediate aftermath of the tragedy; they were close up, detailed, and showed the subjects in a raw emotional state. In many cases, the photographs were published in spite of the subject’s objection to their being taken. Some showed children whom courts are particularly astute to protect. It is highly unlikely that relatives were told that publication was imminent. Most people, it is suggested, would find being treated find being treated in that way highly offensive.

Media defendants are therefore likely to be liable unless they can establish that the relatives’ right to be left alone at this moment of grief was outweighed by an overriding ‘legitimate public concern’ in seeing the material. It is not enough to show that there is a general public concern in the Pike River tragedy itself nor that that the public is interested in seeing these kinds of images. Media defendants would have to show that there was a good reason for publishing these images and that the public interest in them outweighed the relatives’ competing right to privacy. The media’s usual argument that publication of the images was justified because they brought home the enormity of the situation is particularly unconvincing here. Few people lack the imagination to understand the despair relatives would feel on receiving news of the deaths after six anxious days of waiting. And there is no suggestion that the country was not taking the situation seriously. Government had already signalled its intention to launch a commission of inquiry. The defence would be unlikely to succeed.

Damages are available under the tort of privacy – the most substantial award so far has been $25,000. But there are costs and risks associated with bringing an action which can deter all but the wealthiest of claimants. (One would like to hope that this was not a consideration when the media decided to publish the images.) Other, more accessible, outlets for redress are also available. If privacy was breached in a television broadcast, any member of the public can make a complaint to the Broadcasting Standards Authority (the BSA). Principle 3(iii) of the BSA’s Privacy Principles provides specific protection against an intrusion which takes place in public if ‘the individual whose privacy has allegedly been infringed was particularly vulnerable’ and the disclosure was highly offensive to an objective reasonable person. Both requirements would seem to be satisfied here. Privacy Principle 7 also requires that ‘children’s vulnerability… be a prime concern to broadcasters’ and that broadcasters satisfy themselves that ‘the broadcast is in the child’s best interests’. Filming a child leaving that meeting is very unlikely to meet that test. The Press Council also give some redress for print media intrusions although their powers are less extensive than the BSA’s and they are in general less inclined to use them.

Families of the lost men will currently have more immediate concerns than the law of privacy and, even with the passage of time, might not wish to bring an action. However, it is important to register that intrusive media conduct is not a necessary incidence of modern life. On the contrary, it is an infringement of a legally protected right to be left alone at times of significant distress and trauma. 

Nicole Moreham
Senior Lecturer, Faculty of Law