Chapter 1
Introduction and summary of recommendations

Introduction

The essential problem

1.1Each year there are over 500 self-inflicted deaths in New Zealand.1 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.

Governmental responses

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 and 74,—
make public means publish by means of—
(a) 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:

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:

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:

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:

1.27Our formal terms of reference are attached as Appendix A.

Consultation

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

Introduction

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:

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.

Legislative prohibition

1.34A narrow prohibition on publishing the method of death should be maintained in the following way:

An exemption

1.35An urgent exemption from the statutory restriction should be able to be obtained in the following way:

(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.

Review

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:

Coroners’ powers

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.

Enforcement

1.38Section 139 of the Coroners Act should apply to breaches of the recommended statutory prohibitions. In respect of those breaches:

Guidelines

1.39The statute should provide that:

1.40The new standards should:

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:

1Ministry of Health Suicide Facts: Deaths and intentional self-harm hospitalisations 2010 (2012), at ix.
2Law Commission The News Media Meets ‘New Media’: Rights, Responsibilities and Regulation in the Digital Age (NZLC R128, 2013); Law Commission Harmful Digital Communications: The adequacy of the current sanctions and remedies (NZLC 2012).