In regards to the following story: Matt Heath: When a mother sticks up for her famous son
CASE NO: 2516

ADJUDICATION BY THE NEW ZEALAND PRESS COUNCIL ON THE COMPLAINT OF DEBORAH STOKES AGAINST NEW ZEALAND HERALD

FINDING: UPHELD

TO BE PUBLISHED ON 11 JULY 2016 Confidential to the parties until 11 July 2016

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1. Deborah Stokes complains that a column published in the New Zealand Herald entitled "When a mother sticks up for her famous son" breaches Press Council Principles 1, Accuracy, Fairness and Balance, 2, Privacy, and 9, Subterfuge.

2. The complaint is upheld on Principle 1 with regard to fairness. One member would also uphold on Subterfuge.

Background

3. On Monday April 11 the New Zealand Herald published a column by Radio Hauraki breakfast host Matt Heath on the pros and cons of parental over-protection.

4. The basis of his column was a broadcast on Radio Hauraki on April 4 of a phone conversation between Heath, co-host Jeremy Wells, and the mother of England cricketer Ben Stokes, whose poor performance in the last over of the Twenty20 world cup final Heath and Wells had derided. Mrs Stokes had rung the station to protest about the hosts' comments about her son. The call had been broadcast live, despite Mrs Stokes' being given assurances she was not on-air.

5. Heath wrote that he had taken the call on-air because he thought it was someone phoning in for a competition, and he thought it would be funny to tell Mrs Stokes she wasn't on air so their listeners could hear someone have a go at them.

6. He described Mrs Stokes as an overly protective parent, and said her phone call was a lesson for all parents that fighting your kids' battles rarely helps them.

7. The final line of his column said: "Give them love, support, advice and a safe home - but don't ring up a radio station on air because someone called your boy 'Ben Chokes'."

8. The broadcast had also been widely reported by national and international media.

9. A footnote at the end of the article said the two Radio Hauraki hosts had been reprimanded by NZME for airing the conversation with Ben Stokes' mother despite assuring her it was off air.

10. Mrs Stokes has also complained to the Broadcasting Standards Authority; that complaint has yet to be heard.

The Complaint

11. Mrs Stokes' complaint provides context to the subject of the New Zealand Herald column, namely the live broadcast of the phone call she made to Radio Hauraki. She says she asked for, and was given, two separate assurances by host Matt Heath that the discussion was off-air. It was in fact on air, broadcast live and was subsequently replayed and referred to on the radio breakfast show several times over the next few days.

12. Mrs Stokes complains that the New Zealand Herald column breached three Press Council principles.

13. Principle 9 Subterfuge: Because the column was based on an on-air broadcast that was itself obtained by subterfuge, the information in the column was obtained by the same root subterfuge, misrepresentation and dishonesty. "It goes without saying that the column cannot be justified as being in the public interest," she says.

14. Principle 1, Fairness: Mrs Stokes claims the actions of Matt Heath in writing a column based on an act of subterfuge breached the fairness principle.

15. Principle 2, Privacy: Mrs Stokes claims it was a breach of her privacy for Heath to have referred to the matter in the column as the radio broadcast itself was also a breach of her privacy.

16. Commenting on New Zealand Herald editor Murray Kirkness' response to her complaint, Mrs Stokes maintains the matter was reported on widely nationally and internationally only because of the subterfuge and dishonesty involved in the radio broadcast. "It seems fundamentally unfair to me for the publisher and author to be able to rely on apparent public interest in a matter stemming from the author's own acknowledged actions," she says.

17. She says she had a legitimate expectation that her phone call to Heath was private, so everything that flowed from that, including the column, is a breach of her privacy.

18. In her final response, Mrs Stokes says she is not concerned so much about the widespread news reportage, "distressing as it was to me and my family", but rather "that Heath himself was given a further opportunity to bully me and brag about the radio broadcast".

The Editor's Response

19. The editor of the New Zealand Herald, Murray Kirkness, defends the newspaper's decision to publish the column. It is important, he says, to make the distinction between the original live radio broadcast and the subsequent opinion column when considering the facts.

20. He denies that subterfuge was used in obtaining information for the column as the information was already in the public domain prior to the time of publication.

21. Information about the radio broadcast, and recordings and transcripts of the call, had been widely published in other media who obtained the information about the call in the same way the New Zealand Herald did, from the original radio broadcast.

22. The editor argues that even if the radio broadcast is found to be unfair by the Broadcasting Standards Authority, it does not follow that subsequent reporting of the comments in other media must therefore also be in breach of the fairness principle.

23. Matt Heath is a regular columnist for the New Zealand Herald, so it was deemed by the editors to be appropriate for him to comment on the radio broadcast and address the criticism he had received following the broadcast. It was also considered to be in the public interest for Mr Heath to provide commentary on the associated issues regarding criticism of sportspeople by the media.

24. The column was clearly identified as an opinion piece, he says, and in line with Principle 5 of the Press Council rules, it was based on fact, and did not infringe the fairness principle.

25. The editor makes the same argument with regard to the privacy complaint. Even if the BSA found that the live broadcast was a breach of Mrs Stokes' privacy, it didn't mean other media who reported on the incident were also guilty of a breach of privacy. The matter was certainly not private by the time the column was published, says Mr Kirkness.

26. Mr Kirkness submits that the publication of the column did not breach any Press Council rules, and did not go any further than what was widely published nationally and internationally in other media. "I believe it would be a matter of significant concern if the media were not able to comment on matters of public controversy by reason of issues arising out of the circumstances in which a story first broke," he says. "Once an issue is in the public domain and has become a matter of public debate it cannot be the case that it is impermissible for the media to comment on it by reason of some question mark over the manner in which the information originally surfaced."

Discussion

27. The New Zealand Herald column published on April 11 is based on the live broadcast on Radio Hauraki on April 6; however the Press Council cannot comment on the radio broadcast as it is the subject of a separate complaint to the Broadcasting Standards Authority, and this adjudication deals only with the article published by the New Zealand Herald in print and online.

28. The column by Matt Heath was clearly an opinion piece; it was not a news report. Opinion pieces are by their very nature frequently provocative, offensive or controversial in subject and tone, but as long as they are clearly signposted as the writer's opinion, they are exempt from many of the rules which apply to news reports. The Press Council's Principle 5, Columns, Blogs, Opinion and Letters, states that "though requirements for a foundation of fact pertain, with comment and opinion, balance is not essential."

29. In this case, however, we believe the fine line on what can be deemed fair or not fair has been crossed. Heath's column about over-protective parents, which under normal circumstances is a perfectly acceptable subject for an opinion piece, was clearly a convenient hook to allow him to justify his actions in knowingly deceiving Mrs Stokes on his radio show.

30. In the column Heath openly admitted his dishonesty, which he said he thought would be funny, and then ridiculed Mrs Stokes for defending her son, writing that "a parental attempt to right things ended up bringing global humiliation on her son".

31. The Press Council does not accept the editor's argument that the New Zealand Herald article did not go any further than what was widely published nationally and internationally in other media. The difference was that the Herald published an opinion piece written by the perpetrator of the original deceit.

32. We agree with Mrs Stokes' view that it was not fair for the newspaper to provide Matt Heath a further opportunity to justify his improper actions on his radio show. It is also unfair that he was permitted to add insult to injury by using her as an example of what not to do as a parent. Otherwise he is able to take advantage of his own misleading actions, which is unfair.

33. The complaint that the column breached Principle 1, with respect to fairness is upheld.

34. With regard to the complaints under Principle 9, Subterfuge, and Principle 2, Privacy, it is clear that rightly or wrongly, the subject of the broadcast discussion between Mrs Stokes and the Radio Hauraki hosts was very much in the public domain by the time the column appeared, so the information contained within it cannot be deemed to have been obtained by subterfuge. Mrs Stokes' identity was by that stage also in the public domain, so her privacy cannot be deemed to have been breached by the New Zealand Herald article.

35. The complaints under Principle 2 and Principle 9 are not upheld.

However one member of the Council also wanted the complaint upheld on grounds of subterfuge and wanted his dissent noted. The column relied on an interview based on deception, and regardless of whether that interview was broadcast on radio or was simply part of the columnist's research, the deception remains and, in his mind, was grounds for a wider uphold.

Press Council members considering the complaint were Sir John Hansen, Liz Brown, Tiumalu Peter Fa'afiu, Jenny Farrell, Vernon Small, Marie Shroff, Mark Stevens, Christina Tay and Tim Watkin.

John Roughan took no part in the consideration of this complaint.