DJs’ royal hospital prank ‘could have broken law’

Questions are being asked about whether the radio station broke the law — and whether the media authority regulator can, or will, punish them.

Note: This article is from the Guardian.


Powered by Guardian.co.ukThis article titled “Australian DJs’ prank ‘could have broken law and radio codes of practice’” was written by Alison Rourke in Sydney, for The Observer on Sunday 9th December 2012 00.07 UTC

There has been an outpouring of sympathy in Australia for the British nurse who took the prank call from two radio DJs pretending to be the Queen and Prince Charles. At the same time questions are being asked about whether the radio station broke the law – and whether the media authority regulator can, or will, punish them.

Rhys Holleran, head of the Southern Cross Austereo network which owns the radio station 2Day FM where the DJs work, said Jacintha Saldanha’s death was a “tragic event and one that we could not have reasonably foreseen”.

He added: “We are very confident that we haven’t done anything illegal. We are satisfied that the procedures we have in place have been met.”

The prank call, by presenters Mel Greig and Michael Christian, was prerecorded and vetted by the station’s lawyers before being put on air.

But according to Barbara McDonald, professor in media law at Sydney University, Australian law, the commercial radio code of practice (drawn up by the industry) and the privacy code of the Australian Communications and Media Authority (ACMA) may all have been broken, leaving open the prospect of legal and regulatory action.

“The phrase ‘reasonably foreseeable’ is a clear concept in negligence liability,” she said. “When he [Holleran] said that the consequences couldn’t have been ‘reasonably foreseen’, clearly they are looking at a legal liability issue in terms of responsibility for a tragic death.”

McDonald said the station may also have breached telecommunications laws which prohibit the secret recording of conversations, as well as defamation law if it was to be found that by playing a recording of the prank repeatedly, they were found to have ridiculed the nurses involved.

The DJs’ call to the Edward VII hospital in London where the Duchess of Cambridge was staying may also have breached the commercial radio industry’s codes of practice, which were updated last year. According to the codes, radio stations must not broadcast the words of “an identifiable person” unless that person is aware that the words may be broadcast.

Where someone has been recorded without their knowledge, they must give their consent for their words to be broadcast. McDonald says that because the nurses were not informed that their calls were being recorded or that they were to be broadcast, there was a “clear breach” of the code.

However, a spokesman for Austereo, Sandy Kay, said that because the recipient of the prank call was in England and not in Australia, no law had been broken. McDonald described this argument as “ridiculous”. “I don’t think there could be any geographical limitation put on this code of practice,” she said.

Commercial radio stations are regulated by the ACMA, which has the power to remove a station’s licence, something that has never been done before. It also has the power to impose conditions on the licences of radio stations.

2Day FM has had two licence conditions imposed on it in the past three years. In 2009, a 14-year-old-girl was questioned on air by her mother about whether she was sexually active, despite the station apparently already knowing she had been sexually assaulted.

When she said that she had been raped aged 12, 2Day FM’s shock jock, Kyle Sandilands, who presented the show with DJ Jackie O’Neil, then asked: “Right, and is that the only sexual experience you’ve had?” The interview ended after O’Neil stepped in and she and Sandilands apologised.

In 2012 another licence condition was imposed on 2Day FM after Sandilands insulted a female journalist for reporting the low ratings of a TV show that he and O’Neil had presented.

The ACMA has received complaints about last week’s prank call, but has not launched an investigation. It says the onus is on the radio station in the first place to deal with any complaints. In a statement, the ACMA’s chairman, Chris Chapman, said it would be “engaging with the licensee, Today FM Sydney, around the facts and issues surrounding the prank call”.

According to Professor Matthew Ricketson of the University of Canberra, who worked on Australia’s recent inquiry into independent media in Australia carried out by Ray Finklestein QC, the ACMA needs more broad-ranging power to police commercial radio stations.

“The ACMA’s powers range from the very harsh – taking away the licensee’s licence, something that’s very rare – to a slap on the wrist, like having to implement training programmes, with not much in between,” he said. The ACMA does not have the power to fine a radio station, nor to insist that a DJ be taken off air.

Ricketson says that because radio stations such as 2Day FM come under the light entertainment category, it is not clear whether they would be covered by the regulatory body proposed by the Finklestein review, the News Media Council (NMC). The report, published in March, recommended that the NMC be given the power to set journalistic standards for all news organisations, including print, radio, TV and online. It also recommended that it should have the power to order the publication of apologies, corrections or retractions. It was shouted down by virtually all the mainstream media.

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