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.
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