After the Lynn Mall terrorist attack on Friday where a man attacked and injured seven people in a supermarket, some New Zealanders have pointed out how the language used by politicians and media seems different to the 2019 Christchurch terror attacks.
The Lynn Mall attacker, who was motivated by ISIS ideology, was labelled a terrorist by Prime Minister Jacinda Ardern and the media just hours after the event, and his name and image were published the next day.
The Christchurch terrorist, who was motivated by white supremacist ideology, was initially referred to as an “alleged offender” or “alleged gunman”, and his name and image were suppressed for three months after the attack.
Some have asked whether the use of the word “terrorist” is based on the race or beliefs of the attacker. It’s true that in 2019, when the Christchurch terror attacks happened, the United Nations list of Designated Terrorist Entities used by the New Zealand Police did not include a single right-wing extremist or white supremacist group. Instead the list was almost exclusively Al Qaeda and Islamic State-linked individuals and organisations.
But there are some legal reasons behind the language politicians and the media use after events like these, including the fact that one terrorist was alive and previously unknown to police, while one was shot dead and had a criminal record.
We asked some experts to explain it to us.
Re: Does the media report differently when it's a brown terrorist compared to a white terrorist?
Dr John Battersby, teaching fellow at Massey University's Centre for Defence and Security Studies, and a specialist on terrorism and counter-terrorism: I think it depends on a whole range of different circumstances. But we shouldn’t be hanging absolutely anything on the fact that an attacker comes from Sri Lanka or Australia. Or that he was a refugee or not. These guys stood for themselves, as an extremist [with ideology] that they absorbed individually. It's not on where you come from. It’s not on your race. This is on them and their particularly tortured view of the world.
Re: Have you noticed a difference in reporting? Media seemed quick to use the term ‘terrorist’ with the Lynn Mall case, but not the Christchurch case.
Dr John Battersby: I think that's due to the different circumstances. We didn't know what we were dealing with initially with Christchurch.
The Christchurch attacker had deliberately refrained from drawing attention to himself, had no criminal history, planned and prepared in secret and until the day of the attack gave no indication of his intent - and that was shortly before he did it. As it became clear what his motive was, then the label was attached to him.
In the case of Auckland, the attacker was known [to officials], had committed criminal offences, had been caught with objectionable material relating to terrorism, and had given police sufficient concern that he intended an attack, and that he was motivated by ISIS. This was all known beforehand, so he was quicker to be identified as a terrorist.
Re: The Lynn Mall attacker had been convicted of criminal offences but not specifically under terrorism laws. Are the media allowed to call someone a terrorist before they are charged under a terrorism laws?
Robert Stewart, media and defamation lawyer who worked with New Zealand news media organisations to lift the suppression orders of the Lynn Mall terrorist: With the Christchurch mosque shooting the man was still alive. Therefore, if someone had called him a terrorist before he had been charged, then they were potentially at risk of a defamation claim.
That's like calling someone a murderer before they've actually been found guilty of murder [which media are not allowed to do]. But you can call them an “alleged murderer” or an “alleged terrorist” before the court has actually made a finding.
With the Lynn Mall case, the terrorist had not been charged with any charges under the Terrorism Suppression Act, even though the Crown had tried. But the guy was shot dead by police, so once someone is dead, they have no cause of action for defamation.
Re: If someone is still alive but hasn’t been charged under terrorism laws, can you call them a terrorist if you personally think they meet the definition?
Robert Stewart: You can call a living person a terrorist, as long as you express it as your opinion. In the world of defamation, honest opinion is a defence. So if you looked at the facts of the Lynn Mall case, because they are so public now, and said “look, in my opinion, this guy is a terrorist”, that’s fine.
But if you didn't seek out the facts, and just said someone is a murderer without it being stated on facts or as an opinion, that could be grounds for defamation. Because that could unjustifiably harm someone’s reputation.
But if the media call someone a terrorist without them being convicted of one and it isn’t framed as someone’s opinion, there's also potentially contempt of court problems for the media outlet.
The Contempt of Court Act 2019 basically attempts to prevent there being any publication that effectively says someone's guilty of the offence of which they've only been charged [aka accused]. So if a journalist has called someone a terrorist without them being convicted of one, you might find yourself being asked to explain because that could potentially abort the trial. There are severe penalties for media organisations and editors for being in contempt.
Re: With the Christchurch terrorist, there was a court order to suppress his face, which meant New Zealand media were banned from publishing photos of him. This suppression order was lifted almost three months after the attack, and New Zealand media were able to release photos of the man.
In contrast, only one day after the Lynn Mall attack the suppression order of the attacker’s name and image was lifted, and the media immediately released his name and face.
Why was the timing so different?
Dr Alexander Gillespie, law professor at the University of Waikato, who has written and commented widely on terrorism in New Zealand and has studied the way New Zealand laws interact with Islamic State: That would be to do with the fact that one was dead and one was alive. With the Christchurch killer he still had to go to court, and so you don’t want to disrupt that process too much. He still has the right to a fair trial [suppression orders can be granted to protect fair trial rights]. But with the Lynn Mall person, he won’t have a trial [and there were no grounds for suppression to continue].
Re: If the Lynn Mall terrorist was dead, why did he have name suppression to begin with?
Robert Stewart: It was reasonably complicated. That suppression order was made in 2018 because he was a refugee. Under the Immigration Act, having refugee status is something that is confidential. This is because there is a general understanding that if you publicise someone’s refugee status that could cause trouble for the family left in the country they fled. So, to keep people safe, it is kept confidential. Which means you're not allowed to say that a person is a refugee, unless they consent to it.
So that’s why he had suppression to begin with. But the reason it was all lifted very quickly [after the attack] was because Justice Wylie, who made the order back in 2018, said while there may still be danger for his family, there is greater public interest for New Zealand to know the whole story.
But [Justice Wylie] waited 24 hours to lift the suppression so his family had time to seek name suppression in their own right.
It also happened so quickly because the Prime Minister and the Commissioner of Police had gone on national television to say, “We'd love to be able to tell you, but we can't because there's a suppression order in place”. So that puts pressure on the process to speed things up to be transparent with New Zealanders.
It's now been revealed that he had fabricated various documents in order to get that refugee status, so all of these discussions around the flaws in this system are now able to happen because the suppression order was lifted.
Re: What happens if someone breaches a suppression order, like if the media publish a person’s name or image when the court has said it is suppressed?
Robert Stewart: There are a number of offences and charges for breaches. If you knowingly breach a suppression order, then it's potentially prison time and for a body corporate it's a $100,000 fine. So it’s a big penalty. And if it's a journalist, the journalist and the media platform will both be prosecuted. They are reasonably rare prosecutions, but the stick is there.
Re: Do you think it is ethical for journalists and politicians to publically name terrorists?
Dr John Battersby: I don’t think that’s an ethical question. You’re either reporting on the facts and their names are facts. Or you don’t, to play your part in countering the effects of terrorism. I understand either way.
Dr Alexander Gillespie: Terrorists want to become notorious. They want people to know their name, they want to be glorified, they want to be seen as powerful. And so you've got to report it in a way which doesn't show them that they have any power.
If it was up to me, I wouldn’t name them. I would try to remove their mark on history. You can’t ignore them, but deny them the fame. The thing we need to focus on are the victims.
Re: Some people have pointed to similarities of the Lynn Mall supermarket attack and the Dunedin supermarket attack earlier this year. Why is one a terror attack and one isn’t?
Robert Stewart: To my understanding, the Dunedin supermarket attack was because of mental health issues rather than any particular idea like ideology.
With the Lynn Mall case police had evidence of the attacker’s ideology because they had searched his computer and found material on there to support his agenda. I'm not sure whether the police did a similar thing in relation to the Dunedin case, but one would imagine they probably did. And the fact you haven't heard anything about it suggests they didn't find anything related to extremism or terrorism.
Dr John Battersby: There are multiple definitions of terrorism, usually along the lines of deliberate violence that is used to articulate a political or ideological message and targets, or threatens to target either a symbolic objects or groups of people. But it’s reported that police thought it was clear the Dunedin supermarket attack was a random violent event without a political or ideological agenda, which is why he is not called a terrorist.
Re: Does a living person who will have their day in court have more right to privacy than a dead person?
Robert Stewart: The answer to that is unclear at the moment because there are some court decisions which suggest that a person who is being investigated by police for having committed a crime has a right to privacy. People will also be granted name suppression for reasons like extreme hardship, or if it's going to endanger the safety of any person, including the defendant. But when someone is dead, these considerations might not be relevant so it might be easier to release their identity. There’s also the issue with defamation, you can’t defame a dead person so it’s easier to say things about the deceased.