Sky News were left red faced last month after presenter Colin Brazier was shown rummaging through the items of a passenger at the crash site of flight MH17. The presenter immediately acknowledged the error in judgment and stated on air that he “shouldn’t be doing this”.
Unfortunately, the damage was already done. Tweeters expressed outrage in their numbers, Ofcom received over a hundred complaints and even Prime Minister David Cameron joined the debate, stating that Brazier’s actions were “totally inappropriate”.
From a regulatory perspective, the question now is whether Ofcom will bring any action against Sky and if so, which part of the Ofcom Code will it apply?
Under Section Eight of the Code, any infringement of privacy must be warranted, meaning not only should the material be in the public interest but it must outweigh any right to privacy. In terms of suffering and distress, the code states that victims of accidents should not be shown where this would intrude on their privacy unless this is warranted or consent has been given. Broadcasters also should not identify people who have died unless the next of kin have been informed or it is warranted. In this case, none of the victims were shown or identified, so it will be hard to establish a legitimate expectation of privacy which has been breached on behalf of a relative in this way, despite the fact that there was no public interest in Brazier’s actions.
Ofcom may therefore find it more straightforward to turn to Section Two of the Code which covers Harm and Offence. This section prescribes that generally accepted standards should be applied to material set for broadcast so that viewers are not subjected to offensive or harmful material unless this is justified by the context of the programme. Considering how much distress the families of the victims of flight MH17 are suffering, compounded by the idea of people going through their loved one’s belongings, it may well be that Ofcom finds a breach here.
Both Sky and Brazier have since issued public apologies. In his, Brazier describes the crash site as “like the set of a horror story. Except that movies are never allowed to show what we saw.” He explains that the pink flask he is seen handling was reminiscent of one his daughter has and that what viewers were unable to see was that he “had lost it”. With this in mind, in addition to Brazier’s admission of wrongdoing on air, this could lighten any sanctions the regulator chooses to impose.
The British Press is still feeling the damage to public trust caused by the phone hacking scandal and incidents like Brazier’s intrusion will only increase the distrust people have of journalists. The printed press is not immune from criticism either. Mining of social media pages of the deceased and seeking interviews with bereaved families is part of a business model at the Daily Mail and the Mail Online which resulted in 9 complaints from bereaved families to the PCC between November 2011 and December 2012.
The damage of Brazier’s actions will be felt most by him himself as a credible journalist and by Sky whose ethics concerning journalism are once again in the spotlight.
One other privacy issue raised by the MH17 tragedy concerns social media and the willingness of a dark underbelly online to focus on the grotesque and the invasive. Some Twitter users reportedly used the microblogging site to post photographs of the deceased at the crash sites. The emotional impact on the families is obvious and betrays their own rights in privacy.
Brazier’s actions highlight the errors of judgements which professional journalists can make when they seek raw footage to provide viewers with an idea of the impact of a situation. The growing trend of smartphones being used to obtain raw footage creates ethical and legal issues in the face of tragedies such as MH17. During such incredible and awful news stories Twitter and Facebook dominate many users’ news gathering experiences. It is legitimate to ask – in such circumstances – to what extent do Twitter and Facebook have a responsibility to protect users (and victims and their families) to such egregious breaches of privacy and sensibility.
Additional material and research by Kester Mather and Ellis Schindler
This post originally appeared on the Himsworths Legal Blog and is reproduced with permission and thanks