When you make money by being infamous, as 2DAY FM does, the odds are that eventually your infamous behaviour will land you in serious trouble.
That has now happened with the hoax phone call to the King Edward VII Hospital in London about the condition of the Duchess of Cambridge, and the subsequent apparent suicide of the nurse who transferred the call.
The licensee’s CEO, Rhys Holleran, has said that the death of the nurse could not have reasonably been foreseen. Of course that is true. The specific sequence of events could not have been foreseen.
But it is entirely foreseeable that bad behaviour will have bad consequences, and it is here that 2DAY FM, its licence-holder Southern Cross Austereo, its management and its board of directors are culpable.
They have created a culture of reckless indifference to the welfare of others and contempt for norms of decency. This is now the third case to demonstrate the basis for that proposition.
In July 2009, the station broadcast on its Kyle and Jackie O show the contents of a lie detector test in which a 14-year-old girl was recorded discussing being raped.
In November 2011, Sandilands described a female journalist as “a piece of shit” and spoke in a derogatory manner about her figure.
The latter case led to the imposition of a licence condition by the broadcasting co-regulator, the Australian Communications and Media Authority (ACMA). The licence condition stated that “program content must not offend generally accepted standards of decency”. It applies to all content on the station and remains in force for five years.
In the present case, Mr Holleran claims that no law has been broken. That assertion is questionable.
The Broadcasting Services Act requires radio broadcasters to conform to a code of practice. Clause six states that before the words of an identifiable person are broadcast, that person’s consent must be obtained. The key issue here is whether the person is identifiable. This is likely to turn on the question: identifiable to whom? The clause does not say “identifiable to the listener”. It is broader than that. The question is, how broad?
The New South Wales Surveillance Devices Act prohibits publication of a private conversation obtained by listening devices without the consent of the parties to the conversation. And the UK Data Protection Act makes it an offence to knowingly or recklessly obtain personal data without the consent of the data controller, in this case the hospital. It is possible that in the event that the perpetrators of this hoax, Mel Greig and Michael Christian, travelled to the UK, they could be prosecuted.
Closer to home, however, there is exists a common law action for breach of confidence, which recent legal authorities in the UK and Australia have begun to construe as closely akin to breach of privacy. And it is here that the argument shades from law into ethics.
There is no general tort of privacy in Australia: that is, there is no general right to sue for breach of privacy. However, the High Court has foreshadowed that it is disposed to develop such a right, and it said so in a case involving Lenah Game Meats and the ABC. The County Court of Victoria went further and found a breach of privacy had occurred in a case where the victim of rape had been identified in a succession of ABC radio news bulletins. This precedent has not been followed, but the straws in the legal wind are unmistakable.
In the absence of a right to sue for breach of privacy, protection of private information becomes a matter of serious ethical obligation for the media, and it is here that the actions of 2Day FM are most egregious.
There is nothing more personal or private than information about a person’s health. It sits at the very core of what the concept of personal privacy means.
To obtain private information about a person’s health without that person’s consent is itself a serious breach of ethics. To obtain it by deception makes it worse, and to then broadcast it publicly over the radio makes it beyond all civilised standards of behaviour.
How these two broadcasters thought any of this was acceptable beggars belief. However, the real culprits here are their managers and employers. It is they who create the climate in which such conduct is even conceivable. It is they who, in the final analysis, are responsible for the material going to air.
It is they who should be held to account.
Whether they will be is far from clear. ACMA’s chairman, Chris Chapman, has said he will be “engaging with the licensee around the facts and issues”.
ACMA’s record of holding wrongdoers to account is not impressive. It has already imposed a licence condition on the station. It will be interesting to see whether on this occasion it goes beyond rhetorical hand-wringing and actually imposes a penalty which reflects the public outrage over this appalling case.
Jack Arnold
Director
Thank you Denis for an objective analysis of what has unfortunately become a very emotional issue due to the apparent suicide of the British nurse.
Surely it is time for ACMA to call the Austereo Chairman Max Moore-Wilton to account for the repeated breaches of the various legislation and permanently remove the offending programmes from the air. Sadly, this strategy is unlikely because too many people prefer banal bad taste programming.
In normal commercial situations the Chairman of a corporation would take responsibility for any actions of his staff approved by management by making an appropriate public apology and resigning his position. However, this seems an unlikely outcome as Max "the Axe" was the long serving Chief of Staff for John Howard who in turn found apologising impossible and saying sorry impossible.
Really it is time to axe Max.
Peter Hindrup
consultant
In one of the early stories the male idiot is reported as saying to the female something to the effect of; ‘somebody gave me a phone number, do you think we ought to try it.’
This suggests to me that they had somehow gotten hold of a number that took them directly to the private rooms, bypassing the switchboard. The fact that a nurse took the call reinforces that view.
It is inconceivable that a hospital has a trained nurse working on the switchboard.
To me it seems that this was obtaining medical records by fraud or deceit. While this may not be criminal, combined with the publishing of such information, I suggest that a case for civil damages ought to be possible.
To suggest that there was no malice, no intention to cause harm would be a very difficult position to defend.
The presenters are making the plea ‘that they only made the phone call’. They are no less culpable than is the company that they work for.
Roy Niles
logged in via Facebook
Such public pranksters should be aware that one of the worst things you can do to a person is to cause them to feel a sense of public shame. There are arguments being made that this nurse should not have felt bad enough to be suicidal - in other words she should have been able to take what they called a joke. But this incident involved the public knowledge that this nurse had subjected her country's Royal Family to a serious invasion of their privacy, and there's no way that such a reportedly responsible person could not feel shame for having let herself be so easily duped. And I've found that more people commit suicide for reasons that involve undeserved yet seemingly un-reparable shame than for almost any other cause.
Effie Best
Retired educator
It occurs to me that the broadcast of the prank call by an Australian radio station is unlikely to have caused great distress to the nurse if it had not been reported by other media -in particular, the English media. I read it on the iPhone version of The (English) Independent the same morning as it was reported on the ABC. Don't the reporting media have any responsibility in this?
Sean Lamb
Science Denier
"Clause six states that before the words of an identifiable person are broadcast, that person’s consent must be obtained. The key issue here is whether the person is identifiable. This is likely to turn on the question: identifiable to whom? The clause does not say “identifiable to the listener”. It is broader than that. The question is, how broad?"
Read morePerhaps the word you are after is ambiguous rather than broad. According to the station they were unable to identify the person, the listener was unable…
Eric Ireland
logged in via Facebook
I wonder how many people who are calling for the DJs' resignations listen to that kind of puerile garbage for entertainment? How many of them would be crying "nanny state" if ACMA really put a stop to it? My gut feeling is, if you weren't willing to "push the boundaries" in that way, you probably wouldn't get a job on 2day fm or any commercial radio station of that ilk in the first place. 2day fm should take the blaim and ACMA should have the power to ensure it never, ever happens again.
Mark Amey
logged in via Facebook
You do realise that stations like 2dayfm only exist for mouth breathers and morons! If 2day are shut down, there'll be more shit to fill the void.
Richard Hockey
logged in via Facebook
telephone interceptions are covered by commonwealth legislation not state law.
What they did is covered in the telecommunications(interception) act.
Jack Arnold
Director
Then Richard, I am reminded of the "eggshell skull" prosecution where a fight between two parties resulted in one party knocking down the other, who gently hit his head and suffered a fatal skull fracture because unknown to the assailant, the victim had a congenitally weak skull structure. If I remember correctly, the assailant was found guilty of manslaughter.
So, the lawyers may be able to make a case for manslaughter even though the sad outcome of the nurse committing suicide was never the…
Read moreJason Bosland
Senior Lecturer
Richard - this scenario isn't covered by Cth telco legislation - that legislation only covers interception of a conversion as it travels over the telecommunications system. A court decision a few years back (I can't remember the name off the top of my head) decided that the recording of a telephone conversation by a radio station using studio equipment does not constitute interception within the meaning of the Act. This is why, as Denis correctly suggests, it is only covered by state law - in this case the NSW Surveillance Devices Act.
John Hersey
logged in via Facebook
A lot of people are regurgitating the word "suicide", which has not been concluded yet as far as I know. I've seen some comments from her family indicating she may well have died of shock, but that will only be know after the autopsy results are released.
My concern is the reckless statements being make by people like Rhys Holleran, CEO of Southern Cross Austereo, that they've broken no laws. Most convicted criminals believe they have broken no laws and are innocent. It's quite clear, even to…
Read moreSean Lamb
Science Denier
By all means lets use this as a teaching opportunity, but lets be sure we know all the facts so that we teach the correct lesson.
Read moreCommonsense says that under normal situations a person won't top themselves after being being broadcast saying "Putting you through now, ma'am." No, not even the notoriously delicate and sensitive Indians. If this was the case we would need to ban all Indians from the medical professions, because these professions have the risk that they may have to deal with the guilt…
Mike Mayfield
Avid Science Nut
The inquest was told yesterday that she was found hanged.
I think suicide is probably now a reasonable conclusion.
john robertson
director
1st The law is an ass,quite often is.It pulls people down to the lowest common denominator to often
2nd As a genuine Australian we poke fun at all those who society has up on a pedestel.If they get offended then it is an issue from them to look at why. We never used to stand beneath anyone, now all we do is SUCK UP to everyones` whim. Do they really think they are above the rest of society.Even Charlie did not take it to seriously at the time
3rd Has anyone asked " WHAT WAS THE RESPONSE OF THE HOSPITAL MANAGEMENT TO THE CALL "
I will bet the poor woman got reaming from them AND that was what tipped her over the edge.
4th Anyone with 1/2 a brain would know that for someone to take their own life there would have to be a lot of past sh#t going on within that woman to push her over to the point of suicide Like BULLYING and Repremands from management
Peter Hindrup
consultant
Update:
Southern Cross said on Tuesday it would make a minimum $500,000 donation to a fund that will help the family of Jacintha Saldanha, a nurse that transferred the call to another nurse who divulged the details about the pregnant Duchess of Cambridge.
"All profits from advertising on 2DayFM until the end of the year will be donated to an appropriate fund that will directly benefit the family of Jacintha Saldanha," Southern Cross Media said in a statement.
http://www.smh.com.au/business/2day-to-resume-ads-but-donate-the-profits-20121211-2b7pn.html#ixzz2EjvFgOuY
My guess is that they have had ‘advice’, and that the ‘advice’ wasn’t what they wanted to hear!
Sean Lamb
Science Denier
Or a move of almost Machiavellian cunning.
See how easy it is for Coles and everyone else to justifying recommencing advertising - after all it goes to benefit the victim's family! If you start a facebook campaign telling potential advertisers you will boycott their products, you are depriving the children of financial assistance!
You kind of wonder if might be so clever it might end up backfiring. But I am a charitable person, I expect there is a genuine desire at Austereo to do something and where is the harm in introducing a little strategy into the mix?
John Hersey
logged in via Facebook
It's absolutely disgraceful, despicable and depraved.
1.) This has nothing to do with remorse or dealing with the consequences of their actions. This is purely a ploy to entrap advertisers into not cancelling their advertising.
2.) True charity is done anonymously – you don’t taken credit otherwise you are simply looking for attention and stroking your ego, it which case it’s advertising, not charity.
3.) The Advertisers, should pull their advertising, and donate it directly if they so wish. I don't see why SCA should decide which portion they decide to pass on, or claim credit for their "benevolence".
Jack Arnold
Director
@Peter & Sean: A good commonsense analysis of the 2DAY response. Now let us analyse the generosity of the 2DAY blood/conscience money.
$A500,000 is equivalent to about 310,000 pounds sterling on today's exchange rate. So, this arbitrary amount probably works out to about six (6) year's gross salary for the family.
Not much compared to a working life of some expected 20 years, indeed, it is an insulting discount of about 1.5 million pounds sterling.
Sean makes the point ... but will the English Police bring criminal charges against the 2DAY management, especially the Chairman Max Moore Wilton who has been in charge of the on-going 2DAY farrago?
Or, like the parents of Stephen Lawrence after his 1992 racist street murder, will the grieving family have to spend decades chasing through the civil courts for justice & a suitable quantum of compensation?
Tom Docherty
logged in via email @hotmail.com
The legal aspects of this non malicious act will soon absorb 2DayFM for no consent, taking personal data when there is a 24 hour telephone service for Media not manned by a nurse but a media person. And the coroner has this open to march and I assume he has information whereby he needs clarification of what happened at 2DayFM , therefore the police will now contact th hidden management that leaves their DJs out to dry. But it is clear people are hiding what they know in management but this will soon be transparent which will show us why this management have the worst crisis PR startegy that walks the planet, protecting brand value but themselves.
Peter Hindrup
consultant
Tom, I question only the 'non malicious act'.
Definition seems to be: unkind and showing a strong feeling of wanting to hurt someone: motivated by wrongful, vicious, or mischievous purposes: Malicious means showing spite or intentionally wanting to cause harm to someone.
That to me is pretty much what was intended by this phone call.
Neal Fix
Pilot
Anyone who defends any of the actions 2Day FM regarding the suicide of Jacintha Saldanha or thinks suicide was over the top for the nurse, I hope you face a similar mistake that the nurse made. And then the world sees the mistake illuminate by two people making fun of you who have the power of media. Enjoy going to the pub to see your friends and the drive home to your family that includes two teen age children. Loss of face to Asian people is more important than loss of face is to pasty white people. To err is human. To make fun of other people's errors is done by bullies and brutes. To prank people into making errors and then laugh at them in the media has no place in decent society.
Mike Mayfield
Avid Science Nut
It was always going to be a dumb idea. Driven by ratings and the fact that your average DJ is not necessarily the sharpest tool in the shed, good management practices are required to ensure things like this are nipped in the bud before they become disasters.
For example, a manager or program supervisor with half a brain who says "You did what? You tried to lie your way into a hospital ward where a very ill, but highly admired by the public, famous pregnant woman was under 24 hour care? Err…
Read more