EXPLAINER
On December 4th, 2012, Today FM recorded a prank call between two presenters; Mel Grieg and Michael Christian, who pretended to be Queen Elizabeth II and Prince Charles as well as two staff members of the King Edward VII Hospital in London. This was the hospital where the Duchess of Cambridge was being treated for her morning sickness, during the pregnancy of Prince George of Cambridge. The staff member didn’t realise she was being recorded, or that she hadn’t speaking to the real Queen Elizabeth II and Prince Charles, providing certain details about the Duchess’ condition while being admitted in the hospital.
PRIVACY ISSUES
In Australia there are 13 Australian Privacy Principles and they govern standards, rights and obligations around:
- the collection, use and disclosure of personal information
- an organisation or agency’s governance and accountability integrity and correction of personal information
- the rights of individuals to access their personal information
An organisation or agency can’t use or disclose your personal information for another reason (a secondary purpose) unless an exception applies.
On the 13th of December 2012 the Australian Communications and Media Authority (ACMA) formally notified Today FM that an investigation was going to commence the offence in question under section 11(1) of the Surveillance Devices Act 2007 (NSW).
1) A person must not possess a record of a private conversation or the carrying on of an activity knowing that it has been obtained, directly or indirectly, by the use of a listening device, optical surveillance device or tracking device in contravention of this Part.
The ACMA were allowed to conduct said investigation “for the purposes of the performance or exercise of any of its broadcasting, content and datacasting functions”, stated in Australian Communications and Media Authority Act (2005) and related powers.
LEGAL ISSUES AT HAND
There are thirteen main Australian Privacy Principles , and they govern standards, rights and obligations around:
- the collection, use and disclosure of personal information
- an organisation or agency’s governance and accountability
- integrity and correction of personal information
- and the rights of individuals to access their personal information
As mentioned Today FM was investigated under the Surveillance Devices Act as they were clearly in breach of:
- Possession of record of private conversation or activity
- (1) A person must not possess a record of a private conversation or the carrying on of an activity knowing that it has been obtained, directly or indirectly, by the use of a listening device, optical surveillance device or tracking device in contravention of this Part.
Not only was it an issue for Today FM to record the nurse, but in deceiving the nurse on the other line – she became in breach of privacy, under her contract as a nurse when she disclosed the information to the presenters. NSW Nurses and Midwife Association General Secretary Brett Holmes stated:
“Such a call, with similar outcomes at an Australian health facility, irrespective of who the patient was, could have serious legal and professional implications for the nurses, midwives or any other health worker involved.”
When do Pranks Break the Law?
Prank calls that are considered a criminal offence are those that threatened to kill or cause injury, making a bomb hoax, calling 000 faking an emergency is open to three years in jail. Even if the caller doesn’t threaten repeated calls can be considered harassment, stalking or bullying with criminal repercussions for the pranker. Today FM had been notoriously known for doing crude and insensitive pranks on their radio station for years, prior to the prank call that pushed them over the line. And due to this big incident, the continuous recording of certain calls had been put under a magnifying glass
SIDES OF THE CASE
4 June 2013, the ACMA provided Today FM with a confidential copy of Preliminary Investigation Report No. 2928.
“The ACMA, as an administrative body, has the power to form an opinion as to whether a licensee has committed a Commonwealth, State or Territory criminal offence, for the purposes of deciding whether a licensee has breached the licence condition… The ACMA is not limited to forming such an opinion after an adjudication of criminal guilt by a criminal court. The formation of such an opinion by the ACMA may occur independently of any trial or conviction for a criminal offence.”
Today FM responded to the report by filing a court application on Tuesday the 18th of June 2013. The radio station truly believed the ACMA had no case against them and were confident in their decision to take the Association to court. They based their side on three points:
- Claiming the ACMA didn’t have authority to make their findings that Today FM had committed a crime
- The ACMA Act does authorise the Authority to make such findings, the provisions are invalid. And the provisions don’t fall under the judicial power of the court.
- And lastly, and independently, the findings will interfere with the administration of justice in a criminal proceeding and the Court would accordingly restrain it.
The AMCA just wanted what was in breach (or wasn’t) to show through. They based their case on that the holder of a commercial radio broadcasting licence has breached the licence condition and to take any action in relation to the alleged breach.
IMPACT
The following events after the case went beyond any predictions. The nurse, Jacintha Saldanha, who was 46 when she took the prank phone call as a serious inquiry, took her own life on December 7th 2012 (three days after the call) from the shame and the backlash and work related repercussions. Her regret was seen in many emails and messaged she left for her co-workers.
Not only was it serious for her to give patient information on the Duchess, but it would be serious under any circumstance with any patient. In the NSW Health Agreement Policies for staff it states:
“Staff are bound by the NSW Health Code of Conduct and privacy legislation to maintain confidentiality of information accessed in the course of their duties. This includes not disclosing personal information about patients or staff on social media… Maximum penalty: $11,000 fine or imprisonment for 2 years or both.”
“Such a call, with similar outcomes at an Australian health facility, irrespective of who the patient was, could have serious legal and professional implications for the nurses, midwives or any other health worker involved.”
As for the backlash on the other end when news broke of the suicide, Today FM big name advertisers pulled away from the radio station. Which led to all advertising on the station to be suspended until further notice.
WHY IT’S IMPORTANT FOR THE MEDIA INDUSTRY
For future broadcasting this effect the way Broadcasting Stations (specifically Today FM) are allowed to and permitted to operate. Prank calls are not uncommon for entertainment broadcasting shows, for a platform that is exclusively audio the means on entertaining has its boundaries. For Today FM the “punishment” of the call included the two presenters losing their jobs, for host Mel Greig she believes it also led to the end of her marriage. As well as a set of actions constructed by the ACMA:
- The broadcast of a three-hour program to “promote media ethics and raise public awareness of the signs and risks of bullying, depression and anxiety”, with advertising proceeds to be given to charity
- An additional licence condition for three years to ensure the station does not broadcast a person speaking without either informing the person before recording them, or requesting permission after recording them
- Further training for presenters, producers and management.
Although the station did breach the regulations held by ACMA and eventually lost the case, Today FM were allowed to keep their licence to remain on the air. Chairman of the ACMA, Chris Chapman, said as a whole the case was “a win for the industry”.
“”I think the matter of debating media ethics and some of these other matters that are percolating around very seriously in society about bullying and harassment is a great start… If it provides encouragement for other broadcasters to seize on this, then I think for citizens, for the broadcaster, for the regulator that is a win win win.”
The case when taken to the Full Federal Court unanimously deciding that the Act that Today FM was investigated under the ACMA could not accuse the radio station of committing a criminal act. The case was then appealed and taken to The High Court which ruled in favour of the ACMA entitling them to make these findings and investigations. It also found seeking to enforce the matter did not amount to a judicial decision and, therefore, the constitutional challenge raised by Today FM failed. For future broadcasting offences this means an administrative decision-maker can make findings that an offence has been committed is likely to apply to a larger administrative enforcement of activities for radio broadcasting.
swoon 