2DayFM 'Royal Prank' broadcast | ACMA

2DayFM 'Royal Prank' broadcast

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The Australian Communications and Media Authority and Today FM Sydney Pty Ltd (2DayFM) have agreed on a constructive set of actions in response to the breaches found in the ACMA’s investigation into the so-called ‘Royal Prank’ broadcast.

  • 2DayFM will broadcast a three-hour special program, produced to promote media ethics and raise public awareness of the signs and risks of bullying, depression and anxiety. All advertising within the program will be suspended or proceeds donated to charity.
  • The ACMA has accepted an enforceable undertaking from 2DayFM that will require all presenters, production and management personnel to actively engage with their ethical and legal obligations through a targeted training program.
  • The ACMA will impose an additional licence condition on 2DayFM that will apply for three years, which will not be contested by 2DayFM. The condition elevates clause 6.1 of the Commercial Radio Codes of Practice and Guidelines 2011 (the Code) and specifies that the station will not broadcast the words of an identifiable person unless that person has (a) been informed in advance that the words may be broadcast or (b) if recorded without the person’s knowledge, they have consented to the broadcast of the words.

‘The combined approach of the special broadcast and targeted training program, together with the imposition of a new licence condition, presents a positive alternative to what would have otherwise been a brief suspension of 2DayFM’s licence,’ said ACMA Chairman Chris Chapman. ‘This is a much more constructive way of ensuing future compliance by 2DayFM with important community safeguards.’

On 4 December 2012, 2DayFM presenters, imitating Her Majesty the Queen and His Royal Highness Prince Charles, made a hoax call to the London Hospital where the Duchess of Cambridge was being treated for morning sickness.

Following the investigation of a number of complex issues, the ACMA found the broadcast of the ‘Royal Prank’ call segment breached the following requirements of the Code:

  • clause 6.1 which prohibits the broadcast of statements by identifiable persons without their knowledge or consent
  • clause 9.1 which prohibits participants in live-hosted entertainment programs from being treated in a highly demeaning or highly exploitative manner.

The ACMA also found 2DayFM in breach of a standard condition of its licence by failing to obtain consent from the nurses involved before broadcasting the recording of the prank call.

The matter was subject to prolonged litigation, initiated by the licensee, with ultimately the High Court unanimously finding in the ACMA’s favour. The High Court’s judgment paved the way for the ACMA to, firstly, publish its investigation report and then to consider the best enforcement outcomes, given the range of powers available to it and the nature of the breaches.

‘The community has a right to expect that broadcasters will not record and broadcast private conversations where consent has not been given,’ said Mr Chapman. ‘It heralds a positive approach that the new board and management of 2DayFM have acknowledged and apologised for 2DayFM’s actions, accepted the ACMA’s breach findings, committed to ethical behaviour and regulatory compliance going forward and, through this special program, will seek to proactively address important societal issues including media ethics.

‘These really are matters of genuine, current public concern and debate, and this contribution to the ongoing conversation is, in the ACMA’s view, better than the silence that would have been the result if the ACMA had suspended the licence for a brief time.’

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

Media release 35/2015 - 17 July

Backgrounder

Investigation 2928

Investigation 2928 relates to a broadcast of the Summer 30 program on 4 December 2012 by 2DayFM which included a prank telephone call made by the program’s presenters involving nurses at King Edward VII Hospital in London.

The prank call was broadcast some four-and-a-half hours after it was recorded. During that period, 2DayFM made five unsuccessful attempts to contact the nurses involved with a view to obtaining their consent to the broadcast. Despite the fact that consent was not obtained, a decision was made by 2DayFM to go ahead with the broadcast.

The ACMA exercised its powers under section 170 of the Broadcasting Services Act 1992 (the Act) to commence an investigation into the incident.

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

The ACMA’s investigation considered (among other matters) whether, in broadcasting the prank telephone call, 2DayFM 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 (paragraph 8(1)(g) of Schedule 2 to the Act). In particular, the ACMA considered whether 2DayFM contravened subsections 7(1) and 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 ACMA’s investigation found that 2DayFM breached:

  • clause 6.1 of 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  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 2DayFM 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 2DayFM’s commercial radio broadcasting licence by the Administrative Appeals Tribunal on 8 October 2012 (which followed a finding by the ACMA that 2DayFM 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).

The investigation had been the subject of long-running legal challenge initiated by 2DayFM, 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 only 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

Subsequent to the High Court judgment, the ACMA moved to consider what enforcement response would best serve the public interest. To that end, it pursued productive exchanges with the new Chairman and management of the Southern Cross Austereo group, the holding company of the licensee.

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 and broadcaster conduct 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.

Other aspects of program content and broadcaster conduct are governed by licence conditions. The standard licence condition set out in paragraph 8(1)(g) of Schedule 2 to the  Act, which prohibits the use of a broadcasting service in the commission of an offence, supports the integrity of the broadcasting licence framework.

Broadcasting licences should not be used for activities contrary to the law and the existence of a licence condition reflecting that means that the ACMA can respond to licensee conduct using its civil and administrative powers.

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, to employ systems that deliver robust and reasonable editorial procedures and decisions, and to comply with its legal and regulatory obligations.

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:

  • the relevant provision(s) 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
  • accept a court-enforceable undertaking offered by the licensee for the purpose of securing future compliance with the rule(s). (These undertakings can include, for example, educating staff or changing procedures to improve 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
  • 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 does not breach that 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 not exceeding three months
  • cancel the licensee's licence
  • endeavour to obtain a civil penalty through 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
  • 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 not exceeding three months
  • cancel the licensee's licence.

Investigation concepts series

The ACMA has published an Investigation concepts series to share the insights developed through its investigations work. The series sheds light on key clauses of the broadcast industry codes of practice, which often employ a range of general terms, phrases and concepts about which there can be questions of interpretation.

The objective of the series is to identify how various important principles of broadcast content regulation have been clarified or applied in ACMA decisions.

The papers in this series, Decency, classification, and harm and offence; Fairness, impartiality and viewpoints; and Accuracy, are available here.

The ACMA has elaborated on its findings regarding decency in this matter at pages 34, 38 and 41 of its Investigation concepts—Decency, classification and harm and offence paper.

Last updated: 28 October 2015