If a largely unconnected public can feel the level of shock, grief and outrage shown by the western media following the tragedy of the attack on the World Trade Center and its aftermath, what must the family members of the 5,000 casualties have felt as the traumatic images were broadcast around the world? Does the media owe the families and loved ones of the victims a duty not to show images that it can foresee will cause extreme distress?
Shock, in the sense of psychiatric injury or damage, is an injury recognised by English law. In 1992, the House of Lords considered whether the relatives of the victims of the Hillsborough disaster, who watched live television broadcasts or listened to radio reports, could claim against the police for the shock suffered.
- July 3, 2018
- September 28, 2017
- February 10, 2017
The Lords decided that the damage to the Hillsborough claimants was not recoverable against the police for many reasons, including that the shock was not caused by the original impact of the transmitted image, but in each case by the "dawning consciousness" of the loss of a loved one.
The Lords did not exclude the possibility that there may be extreme circumstances in which shock could be suffered through watching television or listening to radio reports.
It held that if the media were to have broadcast or published images of the suffering of identifiable victims, that would have been a novus actus, an intervening act, which would have broken the chain of causation between the negligence of the police in the Hillsborough disaster and the damage suffered by the claimants.
While English law does not impose liability for grief or the accumulation of feelings of distress, the Hillsborough ruling illustrates that, if such a disaster were to occur again in the UK, and if the ordinary legal hurdles of duty of care, causation and forseeability of damage are satisfied, a claim against the media might succeed.
The sights and sounds broadcast by the US and UK media on and immediately after 11 September 2001 – images of aircraft crashing into buildings, bodies falling from the sky, bleeding and traumatised emergency crew – were described by many viewers as "just like a movie".
However, such images would not be permitted in an unclassified movie and would certainly not normally be broadcast before the watershed.
In deciding whether to broadcast such distressing images, editors have sought to balance the need to inform the public, the privacy of the victims and their families and have regard to the possibility that children may be viewing or listening.
Although the violence of 11 September was on an unprecedented scale, editors regularly seek this balance. The Broadcasting Standards Commission’s Code on Standards and the Press Complaints Commission’s Code of Practice give assistance, but day by day the matter rests with the editors’ discretion.
The codes of ethics and practice adopted by responsible media (for example, to ensure that pictures are not shown of the suffering of recognisable individuals) are intended to avoid foreseeable anguish on the part of the relatives and loved ones of victims of such a tragedy.
In my view, a duty of care to the viewer is likely to exist and the possibility of damage is foreseeable. The real questions for a court to consider, if a claim were brought by a viewer, would be whether the shocking images broadcast were sufficient to cause psychiatric injury and (as a potential defence) whether broadcast was necessary and in the public interest.
Dinah Spence is a solicitor with the media group at Charles Russell