ACMA to investigate 2DayFM prank call broadcast | ACMA

ACMA to investigate 2DayFM prank call broadcast

13 December 2012

ACMA to investigate 2DayFM prank call broadcast

The Australian Communications and Media Authority (the ACMA) has opened a formal investigation into the broadcast by 2DayFM of a prank call to King Edward VII's Hospital in London.

The investigation will focus on the compliance of the licensee, Today FM Sydney Pty Ltd, with its licence conditions and the Commercial Radio Codes of Practice.

In opening the investigation, the ACMA has decided to exercise its discretionary powers under section 170 of the Broadcasting Services Act 1992 to commence an 'own motion' investigation.

A detailed Backgrounder, explaining the regulatory framework, is provided below.

Chris Chapman, Chairman of the ACMA, noted 'The ACMA's formal regulatory relationship is always with the relevant licensee (and not the presenters of any broadcast in question). The ACMA will be examining whether the licensee has complied with its broadcasting obligations.'

The ACMA will be seeking to expedite this investigation and does not propose making any further statement while its investigation is underway.

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


Backgrounder

The regulatory framework-broadcasting content regulation

Under the Broadcasting Services Act 1992 (BSA), 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 Australian Communications and Media Authority (the ACMA) registers codes (other than those of the national broadcasters, the ABC and SBS) once it is satisfied that broadcasters have undertaken public consultation and the codes contain appropriate community safeguards.

Some aspects of broadcasting are subject to licence conditions set out in the Broadcasting Services Act 1992. For example, commercial, community and other radio and television stations are subject to a licence condition prohibiting them from broadcasting tobacco advertisements. The ACMA monitors matters relating to standards and licence conditions and investigates complaints from the public about compliance with them.

Role of the ACMA

The ACMA:

  • must investigate complaints about compliance with licence conditions (sections 147 and 149 of the BSA)
  • must 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 BSA)
  • must investigate such matters as it is directed so to do by the Minister for Broadband, Communications and the Digital Economy (section 171 of the BSA)
  • may, as matter of discretion, commence an 'own motion' investigation into such matters as it sees fit (section 170 of the BSA).

Own motion investigations

The overarching consideration for the ACMA in deciding whether to exercise its discretion to open an 'own motion' investigation under section 170 of the BSA is whether it is in the public interest to do so. While the discretion is broad, matters potentially relevant to that question might include:

  • whether the matter is most efficiently and effectively dealt with by an 'own motion' investigation
  • whether the matter is serious or significant, or the conduct ongoing
  • whether the licensee involved has been the subject of prior action by the ACMA
  • whether the conduct suggests a poor compliance culture on the part of the licensee.

Even in circumstances where a matter is relatively low profile or routine, the ACMA might consider an 'own motion' investigation to be appropriate in the circumstances. However, it is the ACMA's experience that, in most circumstances, the public interest can be served by allowing the normal co-regulatory compliant processes to proceed.

Regulatory obligations potentially relevant to the investigation

The ACMA's regulatory relationship is with the regulated entity (that is, the licensee) and not with on-air presenters.

The licensee, Today FM Sydney Pty Ltd (Today FM) is, among other obligations, subject to:

  1. The Commercial Radio Australia Codes of Practice & Guidelines, 2011 (the Codes).
  2. Standard licence conditions as set out in Schedule 2 of the BSA.
  3. Two additional licence conditions, which attach specific obligations to Today FM's licence only. Both additional licence conditions were imposed following previous breaches by the Today FM of the obligations in Code 1 of the Codes.

The obligations of potential relevance in this investigation are discussed below.

A. The Commercial Radio Australia Codes of Practice & Guidelines 2011

Code 1 - Decency

  • Clause 1.3 provides that program content must not offend generally accepted standards of decency (for example, through the use of unjustified language) having regard to the demographic characteristics of the audience of the relevant program.

Code 2 - News and Current Affairs Programs

  • Clauses 2.1(d) and 2.3(d) provide that in news and current affairs programs, licensees must not use material relating to a person's personal or private affairs, or which invades an individual's privacy unless there is a public interest in broadcasting such information.

Code 6 - Interviews and Talkback Programs

  • Clause 6.1 provides that a licensee must not broadcast the words of an identifiable person unless:
  1. That person has been informed in advance or a reasonable person would be aware that the words may be broadcast; or
  2. In the case of 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.

Code 9 - Live Hosted Entertainment programs

  • Clause 9.1 provides (subject to limitations specified in clauses 9.2 and 9.3) that a licensee must not broadcast a program which, in all of the circumstances:
  1. treats participants in live hosted entertainment programs in a highly demeaning or highly exploitative manner; or
  2. treats children participating in live hosted entertainment programs in a demeaning or exploitative manner.
  • 'Demeaning' is defined as a depiction or description, sexual in nature, which is a serious debasement of the participant.
  • 'Exploitative' is defined as clearly appearing to purposefully debase or abuse a participant for the enjoyment of others, and lacking moral, artistic or other values.

B. Standard licence conditions

Clause 8(1)(g) of the Schedule 2 to the BSA

  • This clause provides that a commercial radio licensee will not use the broadcasting service or services in the commission of an offence against another Act or a law of a state or territory.
  • This includes offences under Australian legislation regulating interception and surveillance.

C. Additional licence condition applicable to the licensee

  • Today FM is subject to an additional licence condition requiring compliance with clauses 1.3(a) and 1.3(b) of the Codes (the decency provisions).
  • This additional licence condition applies only to specific programs, namely, the Hot 30 Countdown, the Kyle and Jackie O Show and/or any other radio program presented live to air by Mr Kyle Sandilands or by Mr Kyle Sandilands in combination with other presenters.

ACMA powers in response to a breach finding

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

The ACMA's enforcement approach is informed by section 5 of the BSA, 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 an 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 BSA 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 an 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 an 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.

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
  • any other relevant considerations.

 

Last updated: 02 May 2017