2DayFM: ACMA least of SCA's worries as lawyers say DJs may have broken laws

2DayFM: ACMA least of SCA's worries as lawyers say DJs may have broken laws
SHARE
THIS



Southern Cross Austereo and its station 2Day FM may have committed a criminal offence by recording nurse Jacintha Saldanha without her consent and broadcasting the prank, media lawyers said.

Justine Munsie of law firm Addisons told B&T that the DJs behind the prank, Mel Greig and Michael Christian, may have breached the NSW Surveillance Devices Act and NSW Listening Devices Act.

“There seem to be two issues one is the potential breach of the NSW Surveillance Devices Act which makes it illegal to record telephone conversations without consent,” Munsie said.

“The criminal offence is whether they should have been recording a telephone conversation with a person without their consent in the first place.

“It’s an issue that if the other person is overseas it is not all in Australia but the relevant recording is being done in NSW so that could be problematic.”

This comes after Rhys Holleran, SCA’s chief executive, said the company was “confident” it had not done anything illegal and London’s Metropolitan police contacted NSW Police yesterday.

The issue under debate is the prank phone call 2DayFM’s DJs made to the King Edward VII hospital in London last week in which they impersonated the Queen and tricked a nurse into sharing details about the Duchess of Cambridge’s health.

Saldanha, who transferred the call through to the hospital ward, later apparently committed suicide.

Asked whether she thought it was likely criminal proceedings would be brought against the station or the DJs, Munsie said it was a “possibility” as media organizations have been prosecuted for similar acts in the past.

But she said the Director of Public Prosecutions (DPP) would take in to account the fact that SCA sought legal advice before broadcasting the pre-recorded call.

“Because the DPP would be thinking ‘well what is the point in securing the conviction if on sentencing no judge in the world is going to punish these people if they got legal advice and acted in according with that legal advice.

“The criminal justice system only has so many resources but it is a possibility.”

The second issue at play, according to Munsie, is whether the station breached the Australian Communications and Media Authority’s (ACMA) Commercial Radio Codes of Practice.

 The sticking point for Munsie and Hamish Fraser, a partner at Truman Hoyle Lawyers, is the media authority’s sixth code of practice.

Code 6.1 states: “A licensee must not broadcast the words of an identifiable person unless:

a)      That person has been informed in advance or a reasonable person would be aware that the words may be broadcast; or

b)      In the case of the words which have been recorded without the knowledge of the person, that person has subsequently, but prior to the broadcast, expressed consent to the broadcast of the words.”

Holleran, SCA’s CEO, reportedly said the station attempted to contact London’s King Edward VII Hospital which was treating the pregnant Duchess of Cambridge multiple times before broadcast.

Munsie highlighted the Code’s use of the word “identifiable” as “tricky” as at the time of original broadcast Saldanha may not have been able to be identified but was later identified through the subsequent coverage.

“I could see the ACMA saying ‘well you didn’t give her name, however, you did broadcast the fact that she was a nurse on duty at the Prince Edwards VII Hospital and you broadcast her voice’.

“Now those two facts made her identifiable at least to people who knew her and they might even say it was reasonably foreseeable in the age of the internet that this would be further circulated.”

However, Fraser told B&T that it is not automatically a breach of the code just because the station failed to comply.

There are four exclusions in 7.1 which mean it wouldn’t be a breach if SCA had either reasonable grounds to believe it wouldn’t be a breach, it was a reasonable mistake, reliance on information supplied by other people and an act or default of another person.

 “6.1B appears to have been breached but you have to read that in conjunction with 7.1 which says that a failure to comply with the code…is not a breach if it is due to, in this case, either reasonable grounds to believe it didn’t breach or a reasonable mistake,” Fraser said.

Either way, Fraser believes an investigation is “almost inevitable” given the furor surrounding the case.

“It will trigger an investigation by the ACMA. If the investigation finds there has been a breach then there will be consequences.”

A likely consequence could be the imposition of another licence condition. Earlier this year, SCA was slapped with a second licence condition following shock jock Kyle Sandilands’ on-air outburst about a female journalist.

“They are not going to lose their licence immediately over it but there are a whole lot of things that could be put in place as result,” Munsie added.

Meanwhile, ACMA is reportedly considering circumventing its complaints procedure, which allows broadcasters to respond to complaints first, and instead kick off its own investigation into the issue. 

For more on this story see:

-2DayFM: Scandal could make media more conservative.

-2DayFM: PR experts urge SCA to bring presenters out of hiding.

Please login with linkedin to comment

Latest News

Shell & HSBC Launch Global Agency Reviews
  • Advertising
  • Media

Shell & HSBC Launch Global Agency Reviews

Going with ‘new year, new me’ theme, Shell and HSBC are looking to freshen up their respective media businesses.

by B&T Magazine

B&T Magazine
Comexposium Takes Over NZ Partner MTS To Become Largest Trans-Tasman Events Group
  • Marketing

Comexposium Takes Over NZ Partner MTS To Become Largest Trans-Tasman Events Group

Marketing events group Comexposium has absorbed its New Zealand joint venture partner MTS to deliver an expanded event solutions business across the Trans-Tasman. The deal will see Ryf Quail (pictured above) return to Sydney to lead Comexposium Australian and Kiwi team, while his current MTS team remains in place as Comexposium employees. While the business […]

Eyeota Kick-Starts 2018 With $15.6 Million In Additional Funding
  • Marketing

Eyeota Kick-Starts 2018 With $15.6 Million In Additional Funding

Audience data provider Eyeota has announced a $15.6 million Series B capital raise to spearhead additional growth in 2018. The company was founded simultaneously in Singapore, Australia and Europe in 2010, and has remained independent and enjoyed strong growth locally, as well as launching into the US. Peter Hunter (pictured above), Eyeota’s general manager for […]

Poem Wins Four New Clients
  • Marketing

Poem Wins Four New Clients

Sydney-based PR and social agency Poem has announced it has won four new clients following another strong year of growth. The four clients are Property NSW (The Rocks and Darling Harbour), Fantastic Furniture, Ovolo Hotels and Purpose (a conference on purpose-driven business). Poem co-founder Matt Holmes said: “We’ve hit a nerve with clients who are […]

Facebook Makes Another News Feed Change
  • Media

Facebook Makes Another News Feed Change

Social media behemoth Facebook has announced its second major update for News Feed to make sure the news people see, while less overall, is high quality. This week, Facebook announced that the platform will launch a small test in the US focused on prioritising news from publishers that users find trustworthy. Facebook is also exploring ways […]

Attention! B&T’s Inaugural Bootcamp Launches!
  • Advertising
  • Marketing
  • Media
  • Technology

Attention! B&T’s Inaugural Bootcamp Launches!

B&T announces its new industry bootcamp! And, if you're like us & didn't know anything about it, all's revealed here.

by B&T Magazine

B&T Magazine
Domain Boss Antony Catalano Exits
  • Media

Domain Boss Antony Catalano Exits

Mystery surrounds Domain boss's surprise exit, although the Mystery Machine nor a talking dog not spotted at Fairfax.

PHOTOPLAY Offers A Ghost Train Ride Like No Other At Sydney Festival
  • Media

PHOTOPLAY Offers A Ghost Train Ride Like No Other At Sydney Festival

Jasmin Tarasin, director at boutique production company PHOTOPLAY, is inviting invites audiences to take a trip through the inner-workings of the mind in ‘Ghost Train’, her latest multi-sensory VR project set to feature at this year’s Sydney Festival. Working in collaboration with musician and co-creative director Jonnine Standish, Tarasin’s uniquely immersive ‘Ghost Train’ is a […]

March One To Rebrand Fundraising Institute Australia
  • Marketing

March One To Rebrand Fundraising Institute Australia

Independent advertising and branding agency March One has been appointed to oversee the rebrand and repositioning of Fundraising Institute Australia (FIA). FIA is the national peak body representing professional fundraising in Australia. It was established to advance advocacy and professional standards, and has identified the need to better promote its role as the industry self-regulator, […]

Victorian Government Launches VR Bushfire Experience Via The Fuel Agency
  • Advertising
  • Campaigns
  • Technology

Victorian Government Launches VR Bushfire Experience Via The Fuel Agency

As part of its summer fire campaign, the Victorian government has launched a virtual reality (VR) bushfire experience and content series via The Fuel Agency. The VR experience places the user in the midst of a large bushfire, and is designed to encourage people to leave early on high-risk days before it’s too late. The […]

Local Ad Tech Company VeNA Partners With RugbyPass
  • Advertising
  • Media
  • Technology

Local Ad Tech Company VeNA Partners With RugbyPass

ad tech company VeNA has signed an exclusive reseller partnership covering Australia and New Zealand with digital rugby network RugbyPass. Across Asia and parts of Europe, RugbyPass is the exclusive digital rights holder and over-the-top broadcaster for live rugby, including the Super Rugby, the Rugby Championship and autumn internationals, the Six Nations, the Aviva Premiership, […]