The horrors of shock and awe

In response to criticism of its editorial judgement in broadcasting footage of the war dead in Iraq, Al-Jazeera claimed to base its editorial decisions on only “newsworthiness and relevance”.

This approach contrasts markedly with the editorial decisions of print and broadcast media in the UK, which are underpinned by a legal framework, imposed by courts and industry bodies, which militate against shock tactics. The Editors’ Code of Practice offers picture editors more discretion in their choice of war imagery than broadcasters’ corresponding code. Although the judiciary has again rejected, in the recent Douglases v Hello! case, a claim for a breach of privacy in English law, the privacy clause of the Editors’ Code acknowledges that everyone is entitled to respect for his or her private and family life, home, health and correspondence, and requires that newspapers justify intrusions into individuals’ private and family life. Although such intrusions are justified if they are in the public interest, intrusion into grief and shock must be carried out, regardless of public interest, with sympathy and discretion. Accordingly, the families of the war dead and injured, whose experiences have been covered by the print media, are entitled to complain to the Press Complaints Commission for breach of privacy and intrusion into the their grief. A PCC adjudication does not, however, entitle the complainant to compensation, and those affected by disturbing war imagery must therefore look to the courts for compensation. Compensation cannot be recovered for normal human emotions that follow an unpleasant incident which falls short of recognisable psychiatric injury. However, liability may arise in the case of “nervous shock”, which involves the sudden appreciation by sight or sound of a horrifying event, which violently agitates the mind, and which is caused by another’s negligence. It is extremely unlikely that photographs in a newspaper, regardless of their content, would cause such psychiatric injury.

However, despite rather artificial restrictive criteria aimed at limiting the potential member of claims, the spectre of liability of television broadcasters for broadcasting disturbing images remains.

Suffering shock through being told of events by a third party or seeing them on television has so far been held to be insufficient to recover damages for nervous shock. However, during the litigation which followed the Hillsborough disaster, Lord Ackner was of the view that “simultaneous broadcasts of a disaster cannot in all cases be ruled out as providing the equivalent of the actual sight or hearing of the event or its immediate aftermath”. Ordinarily, a close emotional tie between the claimants and the victims of the event must exist, but the sheer horror of an event may be such that the emotions of any witness would be deeply affected and entitle a claimant to relief. Although there is no recovery for grief at another’s injury or death, it is conceivable that a viewer would suffer nervous shock from disturbing images of war. This is reflected in the Broadcasting Standards Commission code.

These codes recognise that images shown on TV can have an overwhelming impact on viewers, and therefore provide that a “balance needs to be struck between the demands of truth and the danger of desensitising people”. Although it also recognises the danger of sanitising violence, the codes require that the dead should be treated with respect, that close-ups of injuries should generally be avoided and that care should be taken not to linger unduly on the physical consequences of violence. Furthermore, decisions about the suitability of items for different time slots should be taken continually and subsequent broadcasts of disturbing imagery should only occur after their relevance in a new context has been carefully assessed. Legal concerns no doubt influenced broadcasters in their decision not to repeat footage of aircraft crashing into the World Trade Center and its occupants jumping from those buildings on September 11. Similarly, the Editors’ Code and, perhaps more significantly in the case of the print media, editorial concerns, serve to shields us from the horrors of war.

James Damon is a solicitor in the media and entertainment department at Charles Russell Solicitors

by James Damon

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