Chapter 7
The scope of the proposed ​statutory restriction

7.1We described in the preceding chapters why the current statutory restrictions should be amended and we argued that a limited and clearly defined restriction on reporting the method of suicide is required.

7.2In this chapter we describe the scope of our proposed statutory restrictions, the circumstances in which exemptions may be justified, and the method by which the restrictions should be enforced.

Recommendations

R1 Section 71 of the Coroners Act 2006 should be repealed and replaced by provisions to the following effect:
  • Unless the Chief Coroner has granted an exemption, no person may directly or indirectly make public the method of death.
  • Unless the 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.
R2 The recommended statutory restrictions should apply if a death occurs in New Zealand after the commencement of the restriction and there is reasonable cause to believe the death was self-inflicted.

R3 The recommended statutory restrictions should not apply to the Independent Police Conduct Authority or to the Police Commissioner to the same extent that section 72 of the Coroners Act 2006 excludes them from the current statutory restrictions in section 71.

R4 In relation to the recommended statutory restriction, “make public” should have the same meaning as currently in section 73, that is:
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.

R5 “Method of death” should include the site of the death where a description of the site is suggestive of the method.

R6 The Act should state that nothing in the restriction in R1 above prevents a person from stating that a death is a suspected suicide.

R7 The Act should provide that any person may apply to the Chief Coroner for an exemption from the restrictions in R1.

R8 The Act should provide that 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.

R9 The Act should provide that, in making that determination, the Chief Coroner may be assisted by an expert panel comprising suicide prevention experts and media experts. For that purpose, the Ministry of Health should constitute a panel of not more than three people. Their fees and expenses should be met under the Witnesses and Interpreters Fees Regulations 1974 or similar.

R10 To ensure that an application for an exemption is dealt with speedily, the statute should:
  • provide that the Chief Coroner must, so far as is practicable, give priority to any application for an exemption; and
  • provide that the Chief Coroner may deal with an application by way of a telephone or video conference link-up, email or fax, but must keep a record of any determination, with short reasons.
R11 For the purposes of these provisions, the “Chief Coroner” should include the Deputy Chief Coroner when the Chief Coroner is unavailable.

R12 Section 75 of the Coroners Act 2006, which provides a right to apply to the High Court for a review, should be amended to apply to an applicant for an exemption from the recommended statutory restrictions. The decision of the High Court should be final. There should be no further review or appeal.

R13 There should be no ability to apply for judicial review of the exemption decision under the Judicature Amendment Act 1972.

R14 Section 139 of the Coroners Act 2006 should be amended to apply to the recommended restrictions in R1. In respect of breaches of those restrictions:
  • The maximum fine should be $20,000 for a body corporate or $5,000 in any other case.
  • The offence does 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.

Discussion

Which deaths should the restriction apply to?

7.3The proposed provision should continue to apply in the same situation as the current provision in section 71(1) of the Coroners Act 2006 (Coroners Act), that is, to self-inflicted deaths. “Self-inflicted deaths” is used rather than “deaths by suicide” because a determination that a death is a suicide requires an examination as to whether the deceased person intended to die. That is obviously difficult to determine with certainty in the immediate aftermath of a death and is better left to the determination of a coroner.

7.4The provision must continue to apply to the same deaths as apply under the Coroners Act generally. This means that the restriction on reporting the method of suicide will not generally apply to deaths that occur overseas. We have investigated whether the restriction should extend to overseas deaths on the basis that the harm from reporting in New Zealand the method of overseas suicide deaths is likely to be similar to the harm from reporting New Zealand deaths. However, we have concluded that the benefit of extending the statutory restriction in that way is defeated by the easy access of New Zealanders to reports of overseas suicides via the internet. Anyone in New Zealand reporting an overseas suicide death should, however, have regard to the guidelines in place for reporting suicide. Those guidelines would highlight the potential risks of such reporting.

Who should be subject to the restriction?

7.5We consider that the restriction should apply to any person who makes public the details of an individual suicide, no matter which medium is used to do that. While most of the evidence of harm and public attention on this issue tends to concern mainstream media, the restrictions should extend to any person. This is because the imitative effect is probably not restricted to mainstream media, and the convergence of new media, news media and social media makes it impossible to define the type of mainstream media that is most closely connected with the potential harm.

7.6However, we do recommend that the statutory restrictions do not apply to the Independent Policy Conduct Authority (when making a report under section 34(1)(b) of the Independent Police Conduct Authority Act 1988) and the Police Commissioner (when publishing an opinion or a recommendation under that Act). They are both excluded by section 72 of the Coroners Act from the current restrictions. Those exclusions should continue.

When should the restrictions apply?

7.7Currently, section 71 draws a small distinction between reporting the details of a suicide before a coroner has completed his or her inquiry on the death and after that inquiry has been completed. If the inquiry has not been completed, a person may not make public “any particular relating to the manner in which a death occurred” without a coroner’s authority.85 If, however, a coroner has found a death to be self-inflicted, a person may not make public “a particular of the death” other than the name, address, and occupation of the deceased person or the fact that the coroner has found the death to be self-inflicted, without a coroner’s authority or permission.86

7.8This distinction as currently drafted adds significant confusion to attempts to understand the scope of the restrictions. We do not consider that there is any reason to continue to draw this distinction under our recommended restriction on reporting the method of suicide. The evidence of harm from reporting the method of suicide applies whether or not there has been an official finding relating to that method.

7.9Of course, a distinction will continue to apply to the proposed prohibition on reporting the fact that the death was a suicide. If a coroner has found that the death was a suicide, that fact may then be reported.

Innuendo

7.10It is common for innuendo to feature in media reports of suicide in New Zealand, due perhaps to the uncertainty of the scope of the statutory restrictions that have been in place. Even when reports do not state specifically that the death was a suicide, or that a particular method was used, or that particular circumstances are thought to have provided the motivation for the suicide death, those matters are often very apparent from the bare facts chosen to be reported.

7.11It is likely that the harm of reporting suicide occurs both when suicide is reported directly and when meaning is implied from the context. It is the meaning of the report, rather than the specific words used that may produce the harmful effect.

7.12Therefore, we consider the statutory restriction on reporting the method of suicide should extend to both direct and indirect reports of that suicide.

“Make public”

7.13The current restriction in section 71 of the Coroners Act 2006 uses the phrase “make public”. It is defined in section 73 to mean:

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.

7.14We considered whether that definition should be broadened to mean “publish by any means”. We concluded, however, that the current definition captured well the potential harm from reporting the method of a suicide, and a broader definition is not justified.

The site of a suicide death

7.15We closely considered the meaning of “method of death” and in particular whether the statutory prohibition should also extend to reports of the site of the suicide, because much of the evidence of harm from reporting the method of suicide also extends to reporting the site of the suicide. That harm occurs because the report might “advertise” suicide by that method to other vulnerable people.

7.16However, on close examination of the “site” elements of that harm, it is only those descriptions of site that are suggestive of the method that are linked with a risk of harm in reporting suicide. For example, reporting that a body was found on train tracks, or at the bottom of a particular bridge or cliff, clearly indicates that the deceased person is likely to have died by stepping in front of the train or by jumping from the high location.

7.17It is possible that this type of reporting would be covered if the legislative restriction captured both direct and indirect reports of the method of death. However, to be certain, we consider there is merit in the legislation stating specifically that “method of death” includes the site of the death when a description of the site is suggestive of the method.

ExemptionsTop

7.18The evidence supporting the statutory prohibition on reporting the method of suicide is sufficiently strong that the situations in which the public good would be served by an exemption will be very rare. It has been suggested to us that the media have a role in alerting the public to novel methods of suicide so that people may be aware of the dangers and take action to minimise the risk. However, people who work in suicide prevention warn that such messages run a bigger risk of advertising the method of suicide to vulnerable people. They suggest that any warning messages should not be specifically linked to individual suicides because that increases the risk further by increasing the chance that vulnerable people will identify with the deceased and be tempted to emulate him or her.

7.19Even though it will be rare, we can envisage circumstances in which the public interest in reporting the method of an individual suicide may outweigh the risk of harm. We think the Chief Coroner is best placed to make that decision under statutory criteria. An example may be where a public institution has repeatedly ignored calls to take action to prevent access to a method of suicide, and it is thought that only publicity about another death would force the institution to confront the issue.

7.20The situation is similar in relation to reporting that a death is in fact a suicide. Given that it will be open to the media to report that a death is suspected to be suicide (where the facts support that conclusion), we expect that applications for exemptions from this prohibition will also be rare. However, it is still possible to envisage circumstances in which the public interest is served by specifically describing a death as suicide.

Grounds for an exemption

7.21In considering whether to grant an exemption in reporting the method of suicide, we consider that the decision maker must carefully consider the risk of further suicidal behaviour by vulnerable people if the details are published. That consideration must be informed by an understanding of the most up-to-date evidence from New Zealand and overseas on the association between reporting the method of suicide and subsequent suicidal behaviour by other vulnerable people. An exemption must only be granted if the decision maker considers that the risk of further suicidal behaviour by other vulnerable people is small and is outweighed by the public interest in publishing the material.

The Chief Coroner

7.22Currently any coroner may give authority under section 71 of the Coroners Act to make public the details of a suicide death. As we have stated earlier, this has given rise to a variety of practices by different coroners who have differing views of the evidence linking suicide reporting with subsequent suicidal behaviour by other people. We consider that this variety of practices is undesirable because it is counterproductive to the goal of educating the media and the public about the risks involved in reporting suicide. For that reason, we are recommending that under our proposed restrictions, only the Chief Coroner (or the Deputy Chief Coroner if the Chief Coroner is unavailable) should be able to grant exemptions.

7.23We consider that the statute should provide that the Chief Coroner may be assisted by a panel of experts from both the media and mental health fields in making this determination. This will ensure that he or she has an up-to-date understanding of both the evidence of harm from suicide reporting, and the role and function of the media. The Ministry of Health should maintain a list of names and contact details of those people who have agreed to advise the Chief Coroner in this regard. Their fees should be paid under the Witnesses and Fees Interpretation Regulations 1974 or similar provisions.

7.24It is not envisaged that the Chief Coroner would access advice from the expert panel in every case. This provision should be a power, not an obligation. It will enable the Chief Coroner to access expert advice from time to time to ensure that he or she has advice on particularly difficult cases and is kept up to date with the latest evidence of harm. Depending upon the requirements of the Chief Coroner, the panel could meet on an ad hoc basis, or urgently when the Chief Coroner is determining an application for an exemption. It could also be convened via electronic means, which would help reduce the costs.

Timeliness

7.25Timeliness is of the utmost importance in reporting the news. Journalists have told us that under the current restrictions, the need to apply to a coroner for authority to publish the details of a death was often too hard under the day-to-day pressures of a newsroom when a story is breaking.

7.26Under our proposal the need to apply for an exemption will be reduced because the scope of the restrictions is more clearly defined, and it is already widely accepted by the media that the method of suicide should not be reported in most cases. However, as stated, we are recommending that under our proposal only the Chief Coroner (or the Deputy Chief Coroner) has the power to grant an exemption. The statute should ensure that the Chief Coroner is able to prioritise those applications and deal with them by informal methods where necessary.87

Right of review

7.27Section 75 of the Coroners Act currently provides a person who has been refused permission to publish the particulars of a self-inflicted death with a power to apply to a High Court Judge for a review of that refusal. This right of review is essential to a just system of statutory decision making. It should be continued but amended to reflect the new provision.

7.28However, we consider that given the statutory right of review, further appeals or a right to resort to judicial review under the Judicature Amendment Act 1972 is not warranted. The characteristics of judicial review (and the inherent delay and expense associated with it) make it particularly unsuitable for this type of determination, for which timeliness is so important.

EnforcementTop

7.29The current legislative restrictions are supported by an offence provision in section 139 of the Coroners Act. A person who breaches the restrictions may be subject to a fine of $5,000 for a body corporate or $1,000 for other people. To our knowledge, no one has ever been prosecuted under that provision in respect of suicide reporting.

7.30We consider that a criminal offence remains appropriate for the proposed more clearly defined legislative restrictions on reporting the method of suicide or the fact that a death was a suicide. We envisage that it should be more straightforward to bring a prosecution under the proposed restrictions given that they will be more tightly defined and more specifically tied to the evidence of harm.

7.31We also suggest that the maximum fines under the offence provision should be $20,000 for a body corporate and $5,000 for other people. This increase reflects the clearer connection between the offence and the evidence of harm from the offending, and brings the offence into line with other similar offences, as demonstrated by the following table:

MAXIMUM FINES IN COMPARABLE OFFENCES
Provision Maximum penalty Offence
Broadcasting Act 1989, s 14. $100,000 for a broadcaster. Failing to comply with an order of the Broadcasting Authority to publish a statement, or refrain from broadcasting, or from broadcasting advertisements etc.
Health Practitioners Competence Assurance Act 2003, s 98. $10,000. Publishing the name of the complainant or other identifying details.
Bail Act, s 19(5). $100,000 for a body corporate. 6 months imprisonment for an individual. Knowingly or recklessly publishing details of a bail hearing.
Bail Act, s 19(6). $50,000 for a body corporate. $25,000 for an individual. Publishing details of a bail hearing.
Criminal Procedure Act 2011, s 211(1). $100,000 for a body corporate. 6 months imprisonment for an individual. Knowingly or recklessly publishing a name etc in breach of a suppression order.
Criminal Procedure Act 2011, s 211(2). $50,000 for a body corporate. $25,000 for an individual. Publishing a name etc in breach of a suppression order.
Harmful Digital Communications Bill, s 18. $5,000 for a natural person. $20,000 for a body corporate. Failing to comply with an order of the District Court to takedown material, or cease the conduct concerned, or publish a correction etc.

Coroners’ other powersTop

7.32Under section 74 of the Coroners Act any coroner may prohibit the making public of evidence or submissions given for the purposes of a coronial inquiry, if the coroner is satisfied that it is in the interests of justice, decency, public order, or personal privacy to do so. Coroners have sometimes used this power (which relates to all types of inquiries, not just suicide) to pro-actively restrict the publication of details relating to suicide deaths, despite the fact that section 71 already restricts all details of a suicide death without coronial authority.

7.33Nothing in our proposal affects the powers of a coroner under section 74 of the Coroners Act. Our terms of reference do not include that section, which is broader than issues of reporting suicide. We have taken care to ensure that our recommendations do not limit the powers in that section.

7.34Therefore, it follows that under our recommendations, while reporting the method of suicide or the fact that the death is a suicide will always be restricted (unless the Chief Coroner grants an exemption), it will remain open under section 74 to other coroners to pro-actively restrict publication of evidence or submissions on other matters in relation to specific suicide cases.

85Coroners Act 2006, s 71(1).
86Coroners Act 2006, s 71(2).
87Section 107 of the Care of Children Act 2004 and r 181 of the Family Court Rules 2002 provide precedent for such legislative guidance.