The Press Council considered a complaint about an article headed "Tears and prayers for a murdered father: Vietnamese lawyer Ho Ledinh is farewelled in a traditional Buddhist funeral service - as mystery gunman remains on the loose after daylight Sydney cafe shooting", published on the Daily Mail website on 31 January 2018. The article reported on the funeral service for the late Mr Ledinh and included eight photographs of mourners at the funeral.
The complainant, Mr Ledinh’s daughter, said media photographers including from the publication entered her father’s funeral service and took pictures without the family’s permission. She said the photographers roamed the room taking photographs but as she and her family were praying they could not break from the ceremony to require that they leave. The complainant said only family and friends had been permitted to take photographs for the benefit of family members who were unable to attend. She said that after the ceremony she and other family members asked the photographers to leave and to delete the pictures and recordings made.
The complainant said the media attendance was intrusive and did not stay a respectful distance from mourners. It made a farce of the ceremony, an insensitive public spectacle of the family’s grief and her father's death, and distracted them from their grieving. In publishing the images, the publication made them available to third parties who uploaded them as a video onto YouTube, thereby adding to the family’s distress. The complainant said that by publishing the names of family members the publication breached their privacy and drew attention to them as possible targets of the killer, as well as generating public speculation.
The complainant said while there may be public interest in the events surrounding her father's murder, there was no justification for entering the funeral, taking photos and reporting about the event without the family’s permission. She said she and her family (including her father’s second wife) had not spoken to the media either directly or through a third party and the funeral director had been instructed that the media should not be allowed into the funeral home. The complainant said she asked for the removal of the articles and a block on their being accessed via online search.
The publication said it was told by a woman who was a close friend of Mr Ledinh’s second wife that its staff could attend to cover the funeral and that she was speaking on behalf of the family. It also received an email from a man who was a long-time friend of Mr Ledinh and who was with him at the time of his death which included a copy of the funeral notice and an invitation to forward it to others.
The publication said its photographer was told initially by an unidentified person present at the funeral that media were not allowed in. However, its reporter noticed that another reporter and a news crew from a television station were being ushered into the funeral by a man at the front who appeared to be in charge of entry and asked that man if they could go inside to cover the funeral. He agreed, saying it was public and they were journalists. The publication said that in these circumstances and in light of earlier correspondence from close friends of the family its reporter believed the family had consented to it covering the second portion of the funeral which involved prayers.
The publication said its reporter stayed at the back of the service while the photographer moved closer to the front taking pictures but at a respectful distance from the family and out of respect for the family did not photograph some aspects. It said a journalist from another media organisation began interviewing some guests and a member of the family raised objection to this and then objected to the publication’s reporter covering the funeral. When the reporter said the man at the front of the funeral home had agreed to coverage, the family member said he was not family and asked the reporter to leave, and he left immediately.
The publication said its photographer went back in at the end of the ceremony and took pictures of people paying their last respects by the coffin. The publication said at this time he was approached by three women and asked to delete the photographs and leave and the photographer did this although some photographs taken earlier had already been sent to the publication. The photographer left the funeral immediately.
The publication said its intention was never to cause distress, noting that it needs to strike a balance between the public’s right to know and the need for people to grieve privately. It said while the subject matter is emotive, it considered the events newsworthy and already well established in the public domain. It said it would not have gone inside to the funeral service without permission and that it could only presume there had been some confusion between the family members and friends and different parts of the family concerning media attendance. It said its coverage was handled sensitively and the only name it reported was that of Mr Ledinh’s second wife, which had previously been reported. It did not publish clear images of the faces of his young children. It said it is common practice for others to make videos of its content available on YouTube, which is outside of its control. It offered to submit a request to The Newspaper Licensing Agency to have the video content removed.
The Council notes that at a late stage of the Council’s complaints process the publication agreed to remove the article and did so before it published this Adjudication.
The relevant Council Standards of Practice require publications to take reasonable steps to avoid intruding on a person’s reasonable expectation of privacy (General Principle 5), causing or contributing materially to substantial distress or risk to health or safety (General Principle 6), or publishing material gathered by unfair means (General Principle 7)—unless doing so is sufficiently in the public interest. They also require that in seeking personal information, journalists should not unduly intrude on the privacy of individuals and should show respect for the dignity and sensitivity of people encountered in the course of gathering news (Privacy Principle 1). Finally, members of the public caught up in newsworthy events should not be exploited and a bereaved person has the right to refuse or terminate an interview or photographic session at any time (Privacy Principle 7).
The Council considers that consent to attend and cover a funeral should usually be sought from the family or the funeral director. The Council considers that consent was not provided by the funeral director or directly by the family. However it considers the publication had a reasonable basis for believing that a friend had provided consent on behalf of the family. The Council notes that the publication was ultimately ushered into the funeral by a man who presented himself to the publication and to other media representatives as authorised to grant or refuse entry. The Council accepts that the publication specifically asked the man whether it was permitted to cover the funeral because consent had earlier been refused and was then given permission by the man as ‘they were journalists’.
However the Council considers that subsequently family members made it clear to the publication at the funeral that they did not have consent from the family to attend or to take or use photographs. The Council considers that this overrode any earlier indications of consent and that the publication should not have used the information and images obtained previously at the funeral. Accordingly, the Council considers that in publishing the photographs of the funeral ceremony, the publication failed to take reasonable steps to avoid intruding on the family’s reasonable expectation of privacy. While there was a public interest in the circumstances of Mr Ledinh’s death and in reporting on the funeral, that public interest was not sufficient to justify the publication of photographs once the wishes of the family had been clearly conveyed to the publication. Accordingly, the publication breached General Principle 5.
For these same reasons, the publication also breached one aspect of Privacy Principle 1 in that it failed to show respect for the dignity and sensitivity of the family by publishing photographs once it was made clear that consent had not been given. However Privacy Principle 1 was not breached in other respects.
The Council also considers that the use of the photographs in the circumstances would have given rise to substantial offence and distress and that the public interest in the circumstances of Mr Ledinh’s death was not sufficient to justify the offence and distress caused. Accordingly, the Council considers that the publication breached General Principle 6 and Privacy Principle 7.
The Council does not consider the material was published by deceptive or unfair means, as there was a reasonable basis for the publication’s reporter and photographer to believe initially that the family consented to them entering the venue and taking photographs. Accordingly, the publication did not breach General Principle 7.
Relevant Council Standards
This adjudication applies the following:
General Principles of the Council:
Publications must take reasonable steps to:
5. Avoid intruding on a person’s reasonable expectations of privacy, unless doing so is sufficiently in the public interest
6. Avoid causing or contributing materially to substantial offence, distress or prejudice,
or a substantial risk to health or safety, unless doing so is sufficiently in the public interest.
7. Avoid publishing material which has been gathered by deceptive or unfair means, unless doing so is sufficiently in the public interest.
Privacy Principles of the Council:
1. In seeking personal information, journalists should not unduly intrude on the privacy of individuals and should show respect for the dignity and sensitivity of people encountered in the course of gathering news. In accordance with Principle 7 of the Council's Statement of General Principles, media organisations should take reasonable steps to avoid publishing material which has been gathered by deceptive or unfair means, unless doing so is sufficiently in the public interest. Generally, journalists should identify themselves as such. However, journalists and photographers may at times need to operate surreptitiously to expose crime, significantly antisocial conduct, public deception or some other matter in the public interest. Public figures necessarily sacrifice their right to privacy, where public scrutiny is in the public interest. However, public figures do not forfeit their right to privacy altogether. Intrusion into their right to privacy must be related to their public duties or activities.
7. Sensitive personal information In accordance with Principle 6 of the Council's Statement of General Principles, media organisations should take reasonable steps to avoid causing or contributing materially to substantial offence, distress or prejudice, or a substantial risk to health or safety, unless doing so is sufficiently in the public interest. Members of the public caught up in newsworthy events should not be exploited. A victim or bereaved person has the right to refuse or terminate an interview or photographic session at any time. Unless otherwise restricted by law or court order, open court hearings are matters of public record and can be reported by the press. Such reports need to be fair and balanced. They should not identify relatives or friends of people accused or convicted of crime unless the reference to them is necessary for the full, fair and accurate reporting of the crime or subsequent legal proceedings.