(NEWS ANALYSIS) NAIROBI— The media has often been vilified for following the old mantra “if it bleeds, it leads.”

Simply put, in determining news value, most media organizations often go for stories that involve a brutal death or injury of some kind as they are likely to fetch higher ratings.

Stories that fall in this category include those involving gang violence, robberies, rape, natural calamities and in the last decade or so, terrorism.

For the general public, it is hard to understand why such stories are prominently used in news bulletins and newspaper front pages especially when accompanied by graphic photos. Many consider it unethical.

That is the scenario the New York Times found itself in on January 15, 2019, in the aftermath of the terrorist attack on the upmarket Dusit hotel and office complex in Nairobi's Riverside area. The attack, later claimed by the Somali rag-tag terror outfit, al Shabaab, led to the loss of 21 lives.

The Times found itself under fire after a story on its website, titled Shabab Claim Responsibility for Deadly Assault on Nairobi Hotel-Office Complex, was authored by its incoming Nairobi bureau chief Kimiko de Freytas-Tamura and had the picture showing the victims of the attack, some lying on the tables their lives having been nipped in the bud as they took late lunch at the Secret Garden Restaurant within the complex.

Then the maelstrom erupted. Many Kenyans were infuriated with a huge chunk of them reading racism in the whole affair. Most of the ire was directed at Kimiko even as she protested that she did not make the call on which picture was to accompany the story and instead asked her critics to take up the issue with the photo department in New York.

Her first reaction to the criticism only helped to annoy Kenyans more leading to demands that she should be asked to leave the country. Amid mounting criticism, she issued a statement in which she apologized “for causing anger and anguish.”

However, the photo was not pulled down and the story appeared in its print edition under the headline: “Militants Stage Deadly Assault at Kenyan Hotel-Office Complex”.

This time, it was illustrated by four photographs of victims and survivors of the attack who were either killed in a very gruesome manner or injured.

In the aftermath of the online publication of the story and the ensuing condemnation, the Media Council of Kenya, the sector's regulator in the country, fired a letter to the newspaper demanding that it pulls down the photo and threatened to withdraw accreditation of its journalists working in Kenya. In its view, the publication was a breach of the code of conduct for the practice of journalism in Kenya.

The Code prohibits publication of photographs showing mutilated bodies, bloody incidents and abhorrent scenes, unless the publication or broadcast of such photographs will serve the public interest and that where possible, an alert shall be issued to warn viewers or readers of the information being published.

It also held that the Times was being biased as it has never used such photo from anywhere else in the world.

The newspaper, on the other hand, issued a statement reiterating that Kimiko had no say in the photographs which were chosen to accompany her article, adding they were included so as to present “... a clear picture of the horror of an attack like this”. The newspaper further added that it was its practice to publish such photographs of victims and survivors of attacks citing its coverage of attacks in New York, London and Manchester.

Later, the newspaper said it had constituted a panel to look into the issue.

It has now emerged that the Media Council is awaiting determination of a petition filed with the Complaints Commission established under the Media Council Act. The petition filed by three petitioners is seeking to have Kimiko fined Ksh 100,000 for her alleged gross violation of both the Media Council Act and the Code of Conduct.

The petitioners, Betty Kabari, Muthoni Maingi and Brenda Wambui, also recommend to the Council that the journalist’s accreditation be suspended and that her name be removed from the register of the journalists. In the alternative, if they aver that if Kimiko is not currently accredited in Kenya, any accreditation application she may make be denied on the grounds of her conduct in the Dusit attack affair, which they say illustrated that she is an insensitive, unethical and irresponsible journalist.

The petitioners, however, say the purpose of their complaint is not to attack the journalist, it is to hold her accountable, noting that although they didn’t take the pictures, the journalist and the Times are responsible for publicizing them.

Taking their campaign online via a website, change.org, the three petitioners while acknowledging that the said journalist had tendered an apology, said the action was not enough and that more needed to be done:

 Saying the word ‘sorry’ is not enough, nor does it make the statements made by both the journalist and the Times apologies.

This is supported by the fact that, first, the purpose of their statements was not to apologize but to justify the pictures in the article. Second, these statements were not followed by any corrective measures — the article was not taken down nor were the pictures in it replaced. Third, the journalist apologized then deleted her apology thereafter, bringing into question the authenticity of this ‘apology’.

Further, Ms. Kabari. Ms. Maingi and Wambui deny that their petition was discriminatory saying that Kenyan media houses and journalists had been held to the same standard whenever they erred.

The specifics of this complaint are unique:

1. Complaints on local media have been logged before and continue to be logged within due process. Resolved complaints can be tracked here: https://www.mediacouncil.or.ke/en/mck/index.php/resolved-complaints

2. The images by the New York Times on an article written by the journalist were posted while the attack was on-going. People found out that their loved ones died during a terrorist attack in this manner, which is undignified and in fact illegal.

3. There was public outcry to pull down the images. However, the journalist, who is the incoming East Africa Bureau Chief for the New York Times, refused to hear the public but instead referred them to a photo department whose contact she did not even provide.

4. The Media Council of Kenya requested that the images be taken down, and the New York Times and the journalist, who are bound by the laws of the land, again did not follow this directive.

At the same time, the Media Council of Kenya CEO David Omwoyo confirmed that the matter is being handled by the Complaints Commission, which is expected to render its verdict.

Addressing a press conference in Nairobi Omowoyo reiterated that it was not about learning lessons but adhering to the code of conduct.

“It was not about learning lessons. There were no lessons to be learnt; it is about adhering to the code of conduct,” he said.

Talking to Religion Unplugged, Kenya Union of Journalists (KUJ) Secretary General Erick Oduor, however, said it was wrong to condemn the New York Times, saying the editors must have had compelling reasons as to why they used the particular picture, which they should have been allowed to conclusively explain.

He also noted that even in Kenya, the Daily Nation, the country's mass circulation newspaper, has used such photos on two previous occasions and its editors gave out reasons why they made the editorial decisions to go for them.

“During the Westgate terror attack and the Sinai oil fire tragedy, the Nation used graphic photos that did not go down well with the readers and the editors came out to give compelling reasons on why they used them. In the Sinai oil pipeline case, for instance, the defense was that they wanted to pass the message that scooping leaking fuel is dangerous and the public should keep off,” said Oduor.

He said as a regulator, the Media Council of Kenya, is right to enforce the rules, but one also has to look at it from a professional point of view because those decisions are made in newsrooms by journalists who must have justifiable reasons on why they made the particular call.

“I know they had a conference with the New York Times editors and they must have reached some agreement though I am not privy to it,” he added.

Sources at the Media Council revealed that during the conference call, the editors acknowledged that they had angered many Kenyans but said pulling down the photo was not a solution as it had already gone viral.

They also revealed that even U.S. authorities have previously asked them to pull down certain content but they could not because of public interest.