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Radio content regulation

ACMA publishes 'Royal Prank Call' investigation report

The Australian Communications and Media Authority has today published the report of its investigation into the broadcast of Summer 30 by Today FM (Sydney) Pty Ltd (Today FM) on 4 December 2012.

The ACMA’s investigation found that Today FM breached:

  • clause 6.1 of the Commercial Radio Australia Codes of Practice and Guidelines 2011 (the Code) which prohibits the broadcast of statements by identifiable persons without their consent;
  • clause 9.1 of the Code, which prohibits participants in live-hosted entertainment programs from being treated in a highly demeaning or highly exploitative manner; and
  • the condition of its licence set out in paragraph 8(1)(g) of Schedule 2 to the Broadcasting Services Act 1992 (the Act), which prohibits the use of a broadcasting service in the commission of an offence. (The ACMA formed the opinion that the licensee had recorded and subsequently broadcast a private conversation without the consent of the parties to that conversation, which are offences under sections 7 and 11 of the Surveillance Devices Act 2007 (NSW)).

The ACMA also found that Today FM did not breach:

  • clauses 1.3, 2.1(d) and 2.3(d) of the Code, which contain certain decency and privacy obligations; or
  • the additional licence condition imposed on Today FM’s commercial radio broadcasting licence by the Administrative Appeals Tribunal on 8 October 2012 (which followed a finding by the ACMA that Today FM had breached clause 1.3(a) of the Code concerning generally accepted standards of decency in a broadcast of the Kyle & Jackie O Breakfast Show that included comments about a female journalist).

‘This is a case where the licensee has breached an important community safeguard,’ said ACMA Chairman, Chris Chapman. ‘The community rightly expects that broadcasters will not record and broadcast these sorts of private conversations when consent has not been given.’

The ACMA has been dealing with this matter sequentially and, since the unanimous High Court decision in its favour, has sought representations on the publication of its report under section 180 of the Act.

The ACMA will now move formally to consider what sanctions should apply.

For more information please see the Backgrounder below or contact: Emma Rossi, Media Manager, (02) 9334 7719 and 0434 652 063 or media@acma.gov.au.

Media release 19/2015 - 22 April

Backgrounder

Investigation 2928

Investigation 2928 relates to a broadcast of the Summer 30 program on 4 December 2012 by Today FM which included a prank telephone call made by the program’s presenters involving nurses at King Edward VII Hospital in London.

Before the prank call was broadcast, some 4 ½ hours after it was recorded, Today FM made five unsuccessful attempts to contact the nurses involved with a view to obtaining their consent to the broadcast. When the nurses could not be contacted, a decision was made by Today FM to go ahead with the broadcast, notwithstanding the absence of consent.

The ACMA exercised its powers under section 170 of the Act to commence an investigation into the incident.

The investigation focused on the compliance of the licensee, Today FM, with the conditions of its licence and the Code.

The ACMA’s investigation considered (among other matters) whether, in broadcasting the prank telephone call, Today FM breached the condition of its licence which requires it not to use its broadcasting service in the commission of an offence against another Act or a law of a State or Territory (clause 8(1)(g) of Schedule 2 to the Act). In particular, the ACMA considered whether Today FM contravened subsection 7(1) and/or subsection 11(1) of the Surveillance Devices Act 2007 (NSW) and formed the opinion that it did. In forming this view, the ACMA relied upon its technical expertise as the communications regulator and a Summary of Facts prepared on the basis of the licensee’s submissions to the ACMA.

The investigation has been the subject of ongoing legal challenge by Today FM, as detailed below:

  • 18 June 2013: the licensee applied to the Federal Court for orders restraining the ACMA from making any findings in respect of the licence condition in paragraph 8(1)(g) of Schedule 2 to the Act.
  • 7 November 2013: the Federal Court found that, for the purposes of that licence condition, the ACMA has the power to form an opinion on whether a criminal offence has been committed, independently of any conviction for the offence.
  • 19 November 2013: the licensee appealed the Federal Court decision to the Full Federal Court.
  • 14 March 2014: the Full Federal Court found that the ACMA did not have the power to form an opinion as to whether a licensee has breached that licence condition, unless and until criminal guilt has first been determined by a court.
  • 11 April 2014: the ACMA filed an application for special leave to appeal the decision of the Full Federal Court to the High Court. Special leave to appeal was granted on 15 August 2014 and the matter was heard by the High Court on 11 November 2014.
  • 4 March 2015, the High Court handed down its unanimous decision, in favour of the ACMA. 

The High Court found that:

  • The ACMA, as an administrative body, has the power to form an opinion that a licensee has committed a Commonwealth, State or Territory offence, for the purpose of deciding whether the licensee has breached the licence condition in paragraph 8(1)(g) of Schedule 2 to the Act.
  • The ACMA is not limited to forming such an opinion, after an adjudication of criminal guilt by a criminal court.
  • Such an opinion may be formed by the ACMA independently of any trial or conviction for a criminal offence.
  • Where such an opinion is formed by the ACMA, or relied on for the purpose of taking further action, that does not and could not amount to a finding of criminal guilt akin to a court’s decision.

Timing of publication

The Investigation Report has not been published before now due both to court orders and the ACMA’s obligation under section 180 of the Act to provide persons who might be adversely affected by publication with an opportunity to comment.

There are no longer court orders as to confidentiality in place and the ACMA’s obligations under s180 have been met, including the opportunity to be heard being made available to the two on-air presenters.

The regulatory framework for broadcasting content regulation

Under the Act, Australian radio and television licensees have primary responsibility for ensuring that the material they broadcast reflects community standards. Many aspects of program content are governed by codes of practice developed by industry groups representing the various Australian broadcasting sectors. The ACMA registers a code (other than the codes developed by the national broadcasters, the ABC and SBS) once it is satisfied that broadcasters have undertaken public consultation and the code contains appropriate community safeguards.

The ACMA's regulatory relationship is with the regulated entity (that is, the licensee) and not with its on-air presenters. As such, its overriding interest is in the ability and willingness of the licensee’s management to manage its on air presenters, employ systems that deliver robust and reasonable editorial procedures and decisions and engage constructively with the regulator on the many touch points between them.

ACMA investigations

The ACMA:

  • may investigate complaints about compliance with licence conditions (sections 147 and 149 of the Act)
  • may investigate complaints about compliance with code obligations, where the complainant has complained to the licensee and is dissatisfied with its response (sections 148 and 149 of the Act)
  • must investigate such matters as it is directed so to do by the Minister for Communications (section 171 of the Act
  • may commence an 'own motion' investigation into any matters relating to its broadcasting, content and datacasting functions and related powers, including compliance with licence conditions or code obligations (section 170 of the Act).

ACMA considerations in conducting an investigation

In conducting investigations into compliance with codes or licence conditions, the ACMA considers the broadcast against:

  • each relevant provision of the code or licence condition
  • information received from the complainant, licensee and/or third parties
  • the context and circumstances existing at the time of the broadcast.

In making its determination, the ACMA will also have regard to:

  • any relevant guidelines
  • other relevant decisions made by the ACMA
  • any relevant court or tribunal decisions.

Responding to breaches

Parliament has conferred on the ACMA a range of powers intended to enable it to deal with breaches of the rules established by the Act and the various broadcasting codes.

The ACMA's enforcement approach is informed by section 5 of the Act, which requires the ACMA to:

  • produce regulatory arrangements that are stable and predictable
  • deal effectively with breaches of the legislation
  • use its powers in a manner that is commensurate with the seriousness of the breach concerned.

If the ACMA finds a breach of a code of practice it can:

  • agree to accept measures offered by the licensee to improve compliance.
    (These measures can include educating staff or changing procedures to improve compliance with the rule(s))
     accept a court-enforceable undertaking offered by the licensee for the purpose of securing future compliance with the rule(s)
  • impose an additional licence condition.

If the ACMA finds a breach of a licence condition set out in the Act it can:

  • agree to accept measures offered by the licensee to improve compliance (which measures can include educating staff or changing procedures to improve compliance with the rule(s))
  • accept a court-enforceable undertaking offered by the licensee for the purpose of securing future compliance with the rule(s)
  • issue a remedial direction directing a licensee to take action to ensure that the licensee complies with the licence condition or is unlikely to breach that licence condition in the future
  • impose an additional licence condition
  • suspend the licensee's licence for a specified period
  • cancel the licensee's licence
  • pursue a civil penalty in the Federal Court
  • refer the matter to the Director of Public Prosecutions (DPP).

If the ACMA finds a breach of an additional licence condition it can:

  • agree to accept measures offered by the licensee to improve compliance. (These measures can include educating staff or changing procedures to improve compliance with the rule(s))
  • accept a court-enforceable undertaking offered by the licensee for the purpose of securing future compliance with the rule(s)
  • issue a remedial direction directing a licensee to take action to ensure that the licensee complies with the licence condition or is unlikely to breach that licence condition in the future
  • impose an additional licence condition
  • suspend the licensee's licence for a specified period
  • cancel the licensee's licence.


Last updated: 28 September 2016

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