Introduction and summary of recommendations
The essential problem
1.1Each year there are over 500 self-inflicted deaths in New Zealand. For the most part these desperately sad events do not attract widespread notice or media attention. Lives pass in quiet pain. But in a small and close knit society such as New Zealand a not insignificant number of suicides attract media or social media attention, some of an intense kind.
1.2Considerable debate has occurred as to the appropriateness and effect of media and social media commentary on suicidal behaviours, and whether legislative intervention is required.
1.3One viewpoint is that any comment about an individual suicide falls squarely within the bounds of the right to freedom of expression, and may be beneficial in helping public and private understanding of the causes and consequences of suicide. On this argument, there are libertarian, therapeutic and educative reasons for having no restrictions on the reporting of suicide, save that presentation of comment should be in reasonably good taste.
1.4At the other end of the spectrum are those who contend that no comment at all should be made about the circumstances of the suicide, beyond the bare acknowledgement of it. This is because, it is said, there is sound evidence that certain types of reporting can produce a contagion effect, and more deaths.
The context of this Report
1.5The Minister for Courts has Cabinet approval for advancing legislative amendments to the Coroners Act 2006 reflecting a targeted review of the coronial system. It was in this context that in July 2013 the Minister of Justice asked the Law Commission to undertake a subset of that exercise: a first principles review of the legislative provisions restricting the reporting of suicide. Whatever recommendations the Commission has to make to Parliament can then be taken into account by the Government in the course of that targeted review.
1.6Broadly speaking there have been two different kinds of responses to the issue of media reporting on suicide.
1.7Overseas jurisdictions have sought to ameliorate the possible negative effects of reporting suicide (such as copycat behaviour, or florid glorification, or undue invasions of privacy) by a combination of voluntary guidelines for the media, along with education programmes aimed at promoting a better understanding of suicide and the potential negative effects of reporting it.
1.8New Zealand has been alone in endeavouring to use legislation to affirmatively restrict reporting of suicide. It has sought to do so by what are presently sections 71 to 73 of the Coroners Act 2006 (Coroners Act). That legislation provides:
71 Restrictions on making public of details of self-inflicted deaths
(1) No person may, without a coroner's authority, make public any particular relating to the manner in which a death occurred if—
(a) the death occurred in New Zealand after the commencement of this section; and
(b) there is reasonable cause to believe the death was self-inflicted; and
(c) no inquiry into the death has been completed.
(2) If a coroner has found a death to be self-inflicted, no person may, without a coroner's authority or permission under section 72, make public a particular of the death other than—
(a) the name, address, and occupation of the person concerned; and
(b) the fact that the coroner has found the death to be self-inflicted.
(3) The only grounds on which a coroner may under this section authorise the making public of particulars of the death (other than those specified in subsection (2)(a) and (b)) are that the making public of particulars of that kind is unlikely to be detrimental to public safety.
(4) In determining whether the grounds specified in subsection (3) are made out, a coroner must have regard to—
(a) the characteristics of the person who is, or is suspected to be, the dead person concerned; and
(b) matters specified in any relevant practice notes issued under section 132 by the chief coroner; and
(c) any other matters the coroner considers relevant.
72 Permission referred to in section 71(2)
For the purposes of section 71(2), this section gives permission for—
(a) the publication by the Independent Police Conduct Authority, under section 34(1)(b) of the Independent Police Conduct Authority Act 1988, of a report that includes a particular of the death; and
(b) the publication by the Commissioner of Police, under section 34(2) of that Act, of an opinion or recommendation under section 27 or 28 of that Act, or a part of any such opinion or recommendation, that includes a particular of the death; and
(c) the making public by a person of a particular of the death contained in any such report, opinion, recommendation, or part of an opinion or recommendation, published under that Act.
73 Definitions for sections 71 and 74
In sections 71
,— make public
means publish by means of—
broadcasting (within the meaning of the Broadcasting Act 1989
); or (b)
a newspaper (within the meaning of the Defamation Act 1992
); or (c)
a book, journal, magazine, newsletter, or other similar document; or (d)
a sound or visual recording; or (e)
an internet site that is generally accessible to the public, or some other similar electronic means
particular, in relation to a death, means a detail relating to the manner in which the death occurred, to the circumstances of the death, or to an inquiry into the death.
1.9These restrictions have been in New Zealand law for over half a century now. Earlier, the Coroners Acts of 1951 and 1988 each contained different iterations of them. It should be noted that the legislation restricts reporting only of the details of suicides. It does nothing to restrict the reporting of the problem of suicide in general. Also, the restrictions apply to “self-inflicted” deaths rather than “suicide” deaths because suicide requires an examination of the intention of the deceased person, which is a matter to be determined by a coroner.
1.10In the course of an inquiry coroners also have the powers in section 74 of the Coroners Act. These powers are not specific to suicide, but may be used to specifically prohibit the reporting of some evidence at a suicide inquiry:
74 Coroner may prohibit making public of evidence given at any part of inquiry proceedings
If satisfied that it is in the interests of justice, decency, public order, or personal privacy to do so, a coroner may prohibit the making public of—
(a) any evidence given or submissions made at or for the purposes of any part of the proceedings of an inquiry (for example, at an inquest); and
(b) the name, and any name or particulars likely to lead to the identification, of any witness or witnesses.
1.11The restrictions in sections 71 and 74 are enforced via an offence in section 139:
139 Publication of information in contravention of section 71 or prohibition under section 74
Every person commits an offence against this section, and is liable on conviction to a fine not exceeding $5,000 in the case of a body corporate, or $1,000 in any other case, who publishes or permits to be published any information in contravention of—
(a) section 71 (which relates to restrictions on the making public of details of self-inflicted deaths); or
(b) a prohibition under section 74 (which empowers the coroner to prohibit the making public of evidence given at any part of inquiry proceedings).
The policy objectives behind the present New Zealand restrictions
1.12The policy objectives of the current statutory reporting constraints appear to be to:
- avoid “inquest by media” before a coroner has had a proper opportunity to review the evidence and make a ruling as to manner of death;
- protect public health by reducing the risk of copycat behaviour; and
- protect the privacy of bereaved persons.
1.13Parliament has taken the view that sufficient risk of contagion effects from suicide coverage by the media exists that both statutory restrictions, at least in certain respects, and a voluntary media protocol for reporting are necessary. As we have noted, New Zealand is unique in the world in this respect. We discuss the evidence of potential harm from reporting suicide in detail in Chapter 2.
1.14In the course of our research and consultation we have encountered a frequent misunderstanding that the restrictions in the Coroners Act are intended to gag the media in relation to suicide, or to shut down discussions on suicide. Nothing in the Coroners Act prevents the media or any person from discussing suicide as a public health issue. The current restrictions only restrict reporting the particulars of individual suicides, unless the coroner has authorised their publication. In fact, most suicide prevention policies advocate talking openly about suicide, but doing so in a way that is sensitive to the bereaved, respectful of the deceased and does not further endanger vulnerable people. It is hoped that such open discussions of suicide will encourage vulnerable people to seek help.
The case for reform
1.15The Commission puts forward three principal reasons for advocating, as we do, the reform of the law in this subset of coronial law.
The current statutory rules are not working
1.16The Commission is of the view – as is everybody we have consulted – that for one reason or another, the statutory provisions are not working at all or are working inadequately in some respects.
1.17The difficulties are these:
- There is much uncertainty about what exactly is restricted under the current provisions. Coroners themselves have had difficulty, and are even divided, on the interpretation of some aspects of the current statutory rules. The news media are also uncertain. We will deal with the difficulties of statutory interpretation in Chapter 3 of this Report. For the moment it is sufficient to note that uncertainty as to the relevant law is quite inappropriate.
- If the law means what it literally seems to say, it is not being observed. Of a sample of suicide reports in mainstream media or in social media analysed by our staff, the law was not observed approximately 20 per cent of the time.
- When even clear breaches are detected, the law is not being enforced. This again engenders disrespect for the rule of law.
- The law as it presently stands is uneven in its application. The current restrictions do not apply to overseas suicides. To take a simple illustration, the manner of Marilyn Monroe’s death can be reported, but not that of the recent death of a high profile Wellington barrister, the late Mr Greg King.
- Experts in suicide prevention generally agree that the evidence clearly shows some forms of reporting of suicide are associated with a subsequent copycat effect, but distinct debate remains around the circumstances under which that effect occurs. The international research is clear, however, that publishing the method of suicide carries a distinct risk factor. A judgement is required as to whether there is a sufficient risk to warrant a statutory prohibition of some kind, at least as to the manner of death.
- In this subject area technology has again stolen a march on the law. The problems we have encountered and grappled with in the work of the Commission about media convergence and overlap also apply in this instance. Social media has completely changed the modes of communication. A restriction that appears to have been framed essentially with mainstream media in mind is now inappropriate, although as currently drafted the law also applies to social media.
The evidence of harm does not justify a broad prohibition on suicide reporting
1.18We consider that the body of evidence described in Chapter 2 relating to the harm of reporting suicide is large and significant. It warrants attention by any person publicly describing a suicide death to ensure that such reports do not inadvertently increase the risk of harm.
1.19We are of the view, however, that the only evidence strong enough to justify a statutory prohibition (enforced through a criminal conviction and fines) is the evidence linking the reporting of the method of the suicide death to subsequent suicidal behaviour. Evidence of harm from reporting other details of a suicide death (such as speculating as to the causes of the suicide) or from reporting the suicide in a particular manner (such as glorifying or sensationalising the death) is not clear enough to justify a complete prohibition and criminal sanctions.
1.20However, we consider that the evidence does justify and require suggestive practical (although not formal) limits on the freedom of expression of the sort that we indicate later in this report. In essence these are more nuanced obligations enforced by industry self-regulation.
A new set of guidelines is required
1.21Two attempts have been made in New Zealand to evolve practice guidelines for reporting suicide by the mainstream media. These stand alongside the statutory restrictions. In Chapter 4 we discuss these attempts and why they appear to have been ineffective. In our view the main reasons are the lack of agreement by people from different viewpoints and the lack of an adequate ongoing programme for dissemination, education and support for the guidelines.
1.22Given this fraught history, we analysed various legislative regulatory models of enforcement for guidelines. That analysis is set out in Chapter 9. We concluded that guidelines for safe reporting of suicide are not suitable for any form of legislative enforcement against media or social media because they cannot be expressed with sufficient certainty to support a legislative obligation without becoming an unjustified restriction on the right to freedom of expression.
1.23Despite that, we also concluded that preparing, consulting, disseminating, providing education and evaluating a new set of guidelines should be a statutory obligation. Therefore, the evolution of guidelines in New Zealand is unfinished business. The successful implementation of guidelines will require strong leadership from the Minister of Health.
The principles for reform
1.24The principles that should be kept firmly in mind in this reform exercise are as follows:
- Whatever the new law is to be, it must be certain.
- It must as far as possible be even-handed.
- It must observe the usual principles for judicial and quasi-judicial inquiries, namely that the integrity of the inquiry must be maintained. A coronial inquiry should not be subverted by inappropriate collateral comments such as (inferentially) the manner of death before the coronial finding is complete.
- So far as can be reasonably anticipated, the law must respect inappropriate risks to people. These include undue intrusions on privacy.
- It must respect the difficulties of reconciling freedom of speech and the public health goal of reducing suicide deaths by better articulating and endeavouring to address the private and public harms of suicide.
- At the same time, the limits of the law must carefully be kept in mind. Some matters are not susceptible to legal regulation; nor should they be. The law cannot control everything. Some matters cannot effectively be transposed into black letter law, but should be left to publicly available guidelines if they are dealt with at all.
Our terms of reference
1.25The terms of reference for this review require the Commission to consider whether the current legislation in sections 71–73 of the Coroners Act strike the appropriate balance between the benefits of freedom of speech and the public health goal of reducing suicide deaths.
1.26In particular the Commission has been asked to consider:
- the information about a self-inflicted death that is appropriate to make public, and at what stage of the coronial investigation;
- the definitions to support the proposals including, if relevant, “detrimental to public safety”, “particulars” and any particular relating to the “manner” in which a death occurred;
- whether the same provisions should apply for different forms of media; for example, media organisations, bloggers and social media; and
- the rules for reporting suspected suicides outside New Zealand.
1.27Our formal terms of reference are attached as Appendix A.
1.28We must report by 28 March 2014. Because of the tight timeframe for this reference we have conducted a targeted consultation rather than, as is the usual practice of the Commission, first publishing an issues paper for public comment. A list of the people we have consulted is attached as Appendix B.
1.29The Ministries of Justice and Health, the Chief Coroner and his colleagues, the Media Freedom Committee and experts in suicide prevention have been briefed on a broad outline of our proposals. They were generally supportive of the direction of the proposals and particularly look forward to further development of options for the content and enforcement of standards of practice.
1.30Broadly speaking, those we consulted support our proposals. As always there are matters of fine detail on which there are differences, but the essential underpinnings are supported.
A Summary of our recommendationsTop
1.31In a Report of this character it is helpful to have an overview of where we think the law should go, so that the chapters that follow do not have to be read in isolation.
1.32For the following reasons, we consider that the current sections 71–73 of the Coroners Act should be redrafted:
- There is a strong public interest in the right of freedom of expression.
- Death by suicide is sometimes newsworthy.
- The current legislative prohibition against reporting details of a suicide without the permission of the coroner is ambiguous in part, not well understood, frequently not complied with, seldom enforced, and does not encourage good journalistic practice.
- There is significant evidence that some aspects of reporting of suicide are associated with subsequent suicidal behaviour.
- The growth in social media and internet use, together with growing demands for more open public conversations about suicide, necessitate strong guidance on the type of reporting that will not increase the risk of subsequent suicidal behaviour.
- Voluntary guidelines have had a somewhat fraught history in New Zealand. Overseas practice demonstrates guidelines work best when they are collaboratively drafted and there is ongoing support for their dissemination and implementation.
- Our recommended combination of a statutory prohibition, more tightly defined than the existing restrictions, together with upgraded and clarified standards of practice, will enable better decision making about reporting suicide both by journalists and commentators in social media.
The reforms in a nutshell
1.33The present statutory restrictions are overly broad and confusing. They need to be confined and clarified. Alongside that statutory requirement we recommend further consultation for a revised standard set of practice guidelines, for publication by the Ministry of Health. However, these guidelines would not be legislated. They would be “enforced” through the current media oversight mechanisms.
1.34A narrow prohibition on publishing the method of death should be maintained in the following way:
- Unless the Chief Coroner or the Deputy Chief Coroner has granted an exemption, no person may directly or indirectly make public the method of a death.
- Unless the Chief Coroner or Deputy Chief Coroner has granted an exemption or has made a finding that a death is a suicide, no person may make public a description of a death that describes it as a suicide.
- The prohibitions should apply if a death occurs in New Zealand after the commencement of this restriction and there is reasonable cause to believe the death was self-inflicted.
- “Make public” should have the same meaning as currently in section 73 of the Coroners Act.
- “Method of a death” includes the site of the death where a description of the site is suggestive of the method.
- Nothing above prevents a person from stating that a death is a suspected suicide.
1.35An urgent exemption from the statutory restriction should be able to be obtained in the following way:
- Any person may apply to the Chief Coroner for an exemption from the prohibitions above.
- The Chief Coroner must not grant an exemption unless satisfied that the circumstances are such that any risk of copycat suicidal behaviour from the making public of the method of the death, or from describing the death as a suicide, as the case may be, is small and is outweighed by other matters in the public interest.
- In making that determination, the Chief Coroner may be assisted by an expert panel comprised of suicide prevention experts and media experts. The Ministry of Health should constitute a panel for that purpose of not more than three people. Their fees and expenses should be met under the Witnesses and Interpreters Fees Regulations 1974 or similar.
- To ensure that an application for an exemption is dealt with speedily:
(a)The Chief Coroner must, so far as is practicable, give priority to any application for an exemption in order to ensure that it is dealt with speedily.
(b)The Chief Coroner may deal with an application by any means of communication he or she considers appropriate, but must keep a record of any determination, with short reasons.
- For the purposes of these provisions, the “Chief Coroner” should include the Deputy Chief Coroner when the Chief Coroner is unavailable.
1.36There should be an ability to get an urgent review of the Chief Coroner’s determination whether to grant an exemption in the following way:
- The right in section 75 of the Coroners Act to apply to the High Court for a review should be amended to also apply to a person affected by a refusal by the Chief Coroner to grant an exemption from the statutory prohibition.
- The decision of the High Court is final.
- A refusal by the Chief Coroner to grant an exemption from the statutory prohibition should not be reviewable in the High Court under the Judicature Amendment Act 1972.
1.37The powers of a coroner during an inquiry should not be diminished. Nothing in these amendments should affect the current powers of a coroner under section 74 of the Coroners Act.
1.38Section 139 of the Coroners Act should apply to breaches of the recommended statutory prohibitions. In respect of those breaches:
- The maximum fine should increase to $20,000 in the case of a body corporate and to $5,000 in any other case.
- The offence should not apply to a person who hosts material on websites or other electronic retrieval systems that can be accessed by a user unless the specific information has been placed or entered on the site or system by that person.
1.39The statute should provide that:
- The Minister of Health (or his or her delegate) must prepare a revised set of standards for suicide reporting.
- In doing so the Minister must consult with representatives of the media and of mental health interests, and with such other people as he or she considers appropriate.
1.40The new standards should:
- apply to every person publicly reporting on a suicide death, including in mainstream media, a blog or social media; and
- be implemented via a non-legislative mechanism (for the mainstream media, that means via the various media standards bodies).
1.41The statute should require the Minister of Health (or his or her delegate) to implement an ongoing programme to disseminate, promote and support the implementation of the standards, and to evaluate the success of those standards in achieving the goal of low-risk reporting of suicide.
The broad consequences of the foregoing proposals
1.42We now summarise what we see to be the practical impact of these proposals, if implemented:
- The uncertainty as to the ambit of the present provisions will cease. The legislative prohibition on reporting particulars of the suicide will be limited to only the method of the suicide (including the site of suicide where a description of the site is suggestive of the method) and to the fact that the death is a suicide. This will have the effect of sending a much clearer message that reporting these aspects of a suicide carries a significant risk of public harm.
- A breach of that legislative prohibition will carry liability for a conviction and fine. This more limited prohibition should be easier to prosecute because it will be clearer what behaviour breaches the section.
- The statute will require the Minister of Health to advance, consult on and publish a new set of suicide reporting standards material.
- The implementation obligations on the Minister of Health will require an ongoing programme of engagement with the media and the public. The aim of this programme is to educate people about the risk of harm from some forms of suicide reporting and suggest ways to report suicide where it is newsworthy, while minimising that risk. That programme could include:
- publicising the standards;
- preparing education material for dissemination;
- holding discussions with journalism training schools about including the material in the curriculum;
- holding face-to-face meetings with journalists and editors;
- providing a telephone based advice service;
- proactively following up on breaches of the standards with editors;
- systematically monitoring compliance with the code; and
- regularly reporting on compliance and enforcement activities.