Did the Australian radio hosts breach their industry code?

Will the Australian Communications and Media Authority (ACMA) take tough action not only in respect of the broadcast without permission of the secretly recorded telephone call, but also for breaching the Duchess of Cambridge’s privacy?

Notwithstanding the appalling and utterly shocking consequences of the prank which so tragically cost the life of the nurse, Jacintha Saldanha, it seems that the blame for this disaster has been rather conveniently unloaded on to the youthful Australian broadcasters Mel Greig and Michael Christian rather than focusing on the essential question of how on earth the radio station 2DayFM and its owners Southern Cross Austereo could possibly justify not only heaping worldwide humiliation on the nurse by means of a secretly recorded telephone interview, but also broadcasting without any possible justification the private medical details of the condition of the Duchess of Cambridge.

More people than would now care to admit it were – before they knew the full details and, of course, the tragic consequences – amused by the idea of presenters on a radio station posing as members of the Royal Family in a mildly mocking fashion.  Initially, even the Prince of Wales treated the matter with a degree of levity- but presumably before he had heard the actual broadcast. Mel and Michael in their chastened broadcast apology made the point that their role was just to “get the audio and wait to be told whether it was ok or not ok”.

Absent a cynical desire for ratings – which initially trumpeted the so-called worldwide exclusive and which was evident in the initial attempts at justification seemingly put forward by an out of touch spokesperson to the effect that this was a harmless prank which did not require an apology, that the nurse had killed herself as a result of a depressive condition and that the hospital itself was in some measure to blame – it is difficult to see how those in charge of the decision to broadcast could possibly have thought that the broadcast was permissible.

Much of the attention hitherto has focused on the fact that the words of the nurse when she gives details of the condition of the Duchess were recorded without her knowledge, still less her consent. It is abundantly clear that this was a flagrant breach of Article 6 of the Commercial Radio Australia Code of Practice and Guidelines. The Code of Practice helpfully says in language that is couched in terms which should be moderately unambiguous for editors and owners of a commercial radio station:

“the purpose of this Code is to prevent the unauthorised broadcast statements by individual persons“.

The Code then goes on to state in paragraph 6.1:

“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 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.”

The attempt by the owners of the radio station to try to justify their conduct on the basis that five attempts were made to contact the nurse, which one trusts will be suitably documented, simply does not wash. The interview appears to have taken place in the early hours of the morning and it is certainly open to question what attempts would have been made to track down the nurse who may by then have gone off duty and to break the news to her that she had been secretly recorded and ask her consent. It might be thought that the more straightforward way for the radio station to behave would have been to ask the nurse at the end of the interview whether she would consent to what she had said being broadcast. The question was not asked, presumably because it was blindingly obvious that she would have refused to give any such consent. In any event, the words of the Code do not say that the radio station simply has to try its best to find someone to give the consent on her behalf.  The words could not be more clear. Such words must not be broadcast unless prior to the broadcast the person in question has given consent to the broadcast of words. No one, of course, could have foreseen the appalling tragic consequences of the prank, but if the Code had been complied with, it is difficult to imagine that there could have been this outcome.

There is a further obligation under Article 9.1 of the Code of Practice which requires that a commercial radio licensee “must not broadcast a program which, in all of the circumstances:

(a) treats participants in live hosted entertainment programs in a highly demeaning or highly exploitative manner; “

A live hosted entertainment programme is defined as “a program …. a substantial part of which includes the following components:

(a) a live host and

(b) one or more of the following:… pranks”

What has also been overlooked hitherto – and one hopes will be properly investigated by the ACMA – is the privacy of the Duchess. She was not at all well and in the early stages of her pregnancy. Information had, however, been given on her behalf to the media about her condition.  There were recognised channels of communication for the media to make enquiries about her ongoing condition, in so far as it was felt appropriate to give out any such details.

ACMA has laid down privacy guidelines for broadcasters which recognise the need to balance respect for individual privacy with the media’s role of informing the public. The first question which arises in relation to complaints about intrusions into privacy is

Did the material related to a person’s private affairs?

The answer to that question is unquestionably yes, as the material in question related to material dealing with the health of the Duchess. The further tests required under the guidelines that its broadcast was “likely to cause harm or distress to a reasonable person in the position of the individual concerned” (the Duchess of Cambridge) and the further criteria that the individual was “identifiable from the material broadcast” were clearly met.

The second and counterbalancing question is whether “the broadcast of the material relating to a person’s private affairs was warranted in the public interest“. This, ACMA has indicated, cannot merely be that the public are interested in a story which intrudes into the privacy of an individual, but rather that the broadcast of such material must “contribute to the public’s knowledge and understanding of the issues involved in the overall subject“. There can be no question that a wind-up telephone call with spoof Sydney-based yapping corgis in the background could not meet that test.

While we may, in other circumstances, be very happy to laugh at such wind-ups, the regulations and Code are there for a reason. While there is no general right to privacy under Australian law, there are a number of laws which protect an individual’s right to privacy. These include in New South Wales where the radio station is based, the Privacy and Personal Information Protection Act 1998, the Health Records and Information Privacy Act 2002 and the Surveillance Devices Act 2007.

The management of Southern Cross Austereo need to produce a convincing explanation of how they considered it lawful not only to broadcast the nurse’s secretly recorded words without her consent, but how they felt it right to infringe so flagrantly the privacy rights of the Duchess. Until they do so, it may be difficult to escape the conclusion that they paid little or any regard to the Privacy Code. In any event, it is much to be hoped that the ACMA fully investigates what happened and takes this opportunity to lay down clear guidelines which will require proper observance of the Code and respect for the privacy rights of innocent third parties, while permitting – with appropriate safeguards – legitimate entertainment.