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Did 2Day FM break the law? And does it matter?

There has been an outpouring of grief over the death of British nurse Jacintha Saldanha. EPA/Andy Rain

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.

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