A ruling by the majority of the New Zealand Press Council not to uphold a complaint against the Dominion for breaching an embargo raised important issues about media responsibility, Disability Issues Minister Ruth Dyson said today.

Ms Dyson laid the complaint in September 2001 after the Dominion ran a front-page story on the closure of the Kimberley Centre in Levin for people with intellectual disabilities, in breach of a midday media embargo.

Ms Dyson said she had issued the embargo so that Kimberley residents, their families and staff could be informed about the closure privately and in an appropriate manner, before learning about it from the media.

She said the council was divided in its decision, and it was clear that the issue was contentious. She was disappointed that seven members, including the five media representatives, voted not to uphold the complaint. However, she was heartened that the chairman, former High Court Judge Sir John Jeffries, and three other representatives of the public, were in favour of upholding the complaint.

Ms Dyson said the issue had highlighted a tension between the right of the media to publish information and the rights of individuals affected by publication.

“In my role as Minister for Disability Issues, I deal with many sensitive issues. There must always be a balance between discharging my duty to keep the public informed through the news media, while at the same time protecting my constituency, who are often vulnerable and disadvantaged.”

Ms Dyson said she had issued the embargo to achieve that balance, and it was significant that all the New Zealand media, except the Dominion, had respected it.

She said the council’s decision had created a need for more clarity around the ethical use of embargoes, which benefited not only the public but also the media by giving them time to analyse complex reports and decisions before they became public.

Attached is a copy of the Press Council ruling.

CASE NO: 862

ADJUDICATION BY THE NEW ZEALAND PRESS COUNCIL ON THE COMPLANT OF RUTH DYSON AGAINST THE DOMINION

NOT TO BE PUBLISHED BEFORE 28 FEBRUARY 2002

A majority of the Press Council (7) has not upheld a complaint by Ruth Dyson, the Minister for Disability Issues, against The Dominion. The case was intensely debated by the Council and a dissenting opinion is also attached.
The Minister accused the newspaper of having broken an embargo on an announcement that the Kimberley Centre in Levin for the intellectually handicapped was to close.
The Dominion said it did not breach the embargo because it compiled a story from information sourced independently of Ruth Dyson.

The Minister issued a press statement at 6.30 am on September 4, a Tuesday. She imposed an embargo on the release of the statement until noon the next day on the basis that it would take all that time to inform the 375 residents and their families and the 379 staff.

In the information sent to news organisations, the Minister included a timetable of the briefing process and the reasons for such a long embargo. ''My primary concern throughout the process was to uphold the rights of residents, staff and families to hear about the decision to close Kimberley privately in an appropriate manner, rather than through the media,'' she told the Press Council.

The editor of The Dominion, Richard Long, telephoned Ruth Dyson, on Tuesday night to tell her the newspaper would be publishing a story the following day, a story that had been compiled by material gathered independently of the Minister's material.
Ruth Dyson said it was likely that the newspaper's source was a person who was aware of the embargo. All embargoes could be breached on such grounds. ''Embargoes are agreed upon by convention because it is well recognised that valid embargoes may benefit all parties including, most importantly, the public.''
She believed The Dominion's actions were ''simply to gain advantage over its competitors.'' The fact that every other news organisation had adhered to the embargo showed up The Dominion's unreasonable behaviour.
Ruth Dyson believes that the news editor, Barrie Swift, received her press release and used it to confirm a tip-off the newspaper received on closure and to assign the story.
Mr Swift said The Dominion had known the Minister's decision had been taken some time earlier but had not reported it on the grounds of compassion. It had decided to run with the story at the point of notification.
Mr Swift says that even if the embargoed Dyson material had not been delivered, he would have insisted that the reporter , Lindsay Birnie, continue work on the story because of the tip-off she had received. The reporter had arrived at work that morning saying she had received a telephone call before work informing her that the Minister had begun a process of notification about the closure of Kimberley.

Mr Swift said the reporter had previously set up a series of affected people to contact once notifications had begun. After she had told him the notifications had begun, he told her had received an embargoed statement from the Minister. But the press release was held on the chief reporter's desk, together with an unopened courier parcel containing a report on the closure delivered later that day. None of that material was used. Ruth Dyson accuses the reporter of being unethical for not telling the people she contacted for comment that the minister's decision was subject to an embargo.

The Press Council has been firm in its support of the embargo. Most recently, in 1999 it upheld a complaint against the Waikato Times for breaching an embargoed statement by the Dairy Workers Union. The union had said it would recommend that its members accept a nil wage increase in pay negotiations that were about to get underway. In that case the editor argued that the press release had not been invited and that there were risks in sending it. The Press Council did not accept that argument - and still does not - unless the conditions set are patently unreasonable.

This case is different and poses greater difficulties when weighing each side's rights. The Council maintains its strong support for embargoes but each case must examined on its merits.
The Council accepts that the newspaper received its information about the closure independently of the Minister's material. It is not clear how the newspaper's informant came to be informed but that does not alter the essential facts.
It could be argued the newspaper should still have co-operated with the spirit of the embargo. That may have been a more sensitive path to follow in this case. The closure of the Kimberley Centre, while long expected, was an emotive issue which required careful handling.
But the newspaper was within its rights to pursue and publish a story using material sourced outside of an embargo.
There is a longstanding convention in the media that a journalist who receives information about a story, which is subsequently overtaken by an embargo, should be free to publish. A majority of the Council would be reluctant to go against that convention.
Adding to the weight of the newspaper's case was the length of the embargo and the number of people involved.
The longer the embargo, the more likely information subject to it becomes a publicly known fact. It is likely that by the time the embargo expired, several hundred if not thousands of people would have known about an important news story in the region, placing the media in an invidious position.

The Council remains of the view that an embargo, properly used, is an important aspect of the information business which should be respected by all parties.
Embargoes can be very useful in allowing the media to have advance notice of complex reports and decisions.
The convention should be used carefully to avoid making the media an accomplice in managing difficult political announcements and should never be used to achieve a retrospective news blackout on matters of public interest.

In accordance with the majority opinion the complaint is not upheld.
THE NEW ZEALAND PRESS COUNCIL
COMPLAINT BY HON RUTH DYSON AGAINST THE DOMINION: MINORITY DISSENTING ADJUDICATION

Four members - Sir John Jeffries (Chairman), Sandra Goodchild, Stuart Johnston, Denis McLean ­ were in favour of upholding the complaint. In this case, a very fragile group of people and their highly concerned friends and relations were about to be subjected to a dramatic change in their circumstances. The Minister imposed an embargo so that all of these persons, who would be affected by a decision to close the Kimberley Centre, should have at the very least the courtesy of prior advice before the news broke in public. The Minister’s concerns were understandable and the rationale for her approach to the announcement was entirely proper.

Media were asked to accept a relatively long delay (some 30 hours) between issuance of the notice of the embargo and release of the news item at noon the following day. The timing was determined by calculations as to mail and courier delivery times. These were circumstances beyond the Minister’s control and, again no exception could be taken to the approach she adopted as a result.

The Dominion did not contest the imposition of the embargo and made no secret of their knowledge of it. The news editor stated that he became aware that release of the news of closure of the Centre was subject to an embargo at 8.50am on 4 September and that he told the reporter that she should go ahead with preparation of her story when she arrived at work at 10am. The newspaper maintained it did not break the embargo because the reporter had heard ­ before getting to work (that is, before she knew of the embargo) and from an "independent source" - that notifications of the Minister’s decision were going out. Because they had received a tip-off that the process of notification had begun they believed they could proceed to publication next morning, despite the embargo. In the opinion of the minority this was an error of judgement. The central timeline consideration was not the beginning of the notification process, but its completion.

The Dominion also contends that they were justified in proceeding regardless of the embargo, because the reporter was "well-advanced" with a story about what was widely understood to be the imminent closure of the Kimberley Centre before the embargo was imposed. The Minister contests this rationale, suggesting that the reporter had probably done little more than compile a list of contacts from whom she could get information once it became known that the closure decision had been taken. The Dominion, the Minister believes, was able to confirm the reporter’s tip-off by reference to the official announcement, which her office had distributed to the newspaper before the reporter came to work. The Minister accordingly claims that the newspaper was in breach of the embargo because not only the decision to proceed to publication, but the story itself, relied on the information she had provided about the imposition of an embargo.

The point here is again one of judgement. Not all embargoes are equal. This form of restraint on the freedom of the press can obviously be misused by agencies or officials seeking to advance special agendas. There is absolutely no requirement to accept without question the strictures of Ministers of the Crown or other providers of releases. Such considerations, however, simply did not arise in this case. It would accordingly have been prudent to weigh up more carefully the understandable wish, on the part of journalists everywhere, to proceed to publication with a story already in train against the humane considerations which lay behind the decision to impose the embargo. As the Minister has pointed out, newspapers could easily find grounds for breaking an embargo if the line of argument is accepted that a story already in preparation should be automatically get the green light to proceed. There are circumstances when "publish and be damned" is the proper approach. This was not one of them.

It is relevant to this particular case that, apart from The Dominion, all media, print and broadcasting, in the country apparently accepted the Minister’s notice. The story was plainly very newsworthy in the district. It could be argued that perhaps no other newspapers had a story so well advanced. Equally of course it could be suggested that all other media had accepted the Minister’s rationale for the embargo. Editorial staff of The Dominion have said that in pursuit of what they regarded as the higher priority ­ a right to publish a story already in course of preparation and confirmed from another source ­ they ignored the information from the Minister’s office which, inter alia gave the rationale for the embargo. As a result the newspaper, to an extent, allowed itself to fly blind. There were good reasons for the Minister’s request. The Dominion may have denied itself the opportunity fully to evaluate them.

In earlier decisions relating to embargoes the Press Council has emphasised that the central consideration for editors to address is the reasons given for imposing the embargo, i.e. the context and circumstances involved in the request that publication not occur before a stated time. It is contended that there is a convention justifying publication, where a story is in course of preparation when the request for the embargo is received. If such a convention exists it is unreasonable that it should automatically override careful consideration of the circumstances surrounding the request for the embargo. Editors should not be able to absolve themselves from their wider responsibilities.

The minority would uphold the complaint.

People with a complaint against a newspaper should first complain in writing to the editor of the publication and then, if not satisfied with the response, complain to the Press Council. Complaints should be addressed to the Secretary, P O Box 10 879 The Terrace, Wellington. Tel 473 5220. Information on the Press Council is available on the internet at www.presscouncil.org.nz

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