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Australian court rules that media regulator has the power to deem royal prank call a criminal offence
By Chris Cooke | Published on Wednesday 4 March 2015
An Australian court earlier today ruled that the country’s media regulator, the Australian Communications And Media Authority, has the power to sanction 2Day FM, the radio station behind the tragic royal prank call, based on its conclusion the stunt breached Australia’s Surveillance Devices Act.
As previously reported, a simple prank call on Southern Cross Austereo’s 2Day FM station became global news in late 2012 when presenters Mel Greig and Michael Christian, pretending to be the Queen and Prince Charles respectively, called the hospital caring for a then pregnant Kate Middleton and tricked one nurse into putting them through to her ward, and another into discussing her condition. The prank took a tragic turn when one of the nurses, Jacintha Saldanha, took her own life shortly afterwards.
2Day FM admitted that it had not gained permission from the two nurses before airing the call, and as a result the ACMA concluded the following year that the station had committed a crime under the Surveillance Devices Act, which would give the watchdog the power to suspend or cancel 2Day FM’s licence.
But Southern Cross Austereo argued that the ACMA was not empowered to rule that it had committed a criminal act, and that it was for a court of law to decide whether the prank call constituted an offence under the Act. At the time the incident was still being investigated by the New South Wales Police and Australian Federal Police, though the radio firm says it has been recently advised that neither police authority will pursue a prosecution in relation to the call.
The matter has been lumbering through the Australian courts ever since, with the ACMA winning on first instance and Southern Cross Austereo on first appeal. But earlier today a six-judge panel reconsidering the case ruled in favour of the media regulator, giving it the power to assess whether conduct can be defined as criminal as part of its regulation of Australian broadcasters. It remains to be seen what sanctions the ACMA now proposes against 2Day FM.
But for its part, Southern Cross Austereo said the decision reflected a “serious defect” in Australian broadcasting law. Speaking for the media firm, Nikki Clarkson said: “It is wrong for the broadcasting regulator to be able to itself decide whether a commercial television or radio broadcaster is guilty of committing an offence against any Australian state, territory or Commonwealth law including laws where the ACMA has no expertise, experience or jurisdiction”.
Adding that neither NSW or federal police were planning on proceeding with a case against the media group, Clarkson added: “These findings by the police forces who have the jurisdiction, experience and expertise to investigate the lawfulness of the recording of telephone calls is consistent with [our] position that the making, recording and broadcast of the call did not breach any law, code or regulation”.
Southern Cross Austereo’s position is backed by trade bodies for Australia’s radio and TV industries, though needless to say, the ACMA itself welcomed the ruling, with its Chairman Chris Chapman saying: “It provides clarity regarding the operation of the licence condition that prohibits broadcasters from using their broadcasting service in the commission of an offence”.
