Did 2Day FM prank break the law?
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"We're confident that we haven't done anything illegal," declared Rhys Holleran, the chief of the company that owns 2Day FM.
But Mr Holleran might revise his confidence. When the radio presenters Mel Greig and Michael Christian made a prank call to a British hospital and broadcast conversations that nurses would reasonably have assumed were private, they skirted right to the edge of the law, and possibly beyond.
Under the Surveillance Devices Act in NSW - the prank was broadcast nationally so any state law applies - a person must not publish a private conversation that has been obtained using a ''listening device''. A listening device means any device that can ''overhear, record, monitor or listen'' to a conversation. It does not matter that the nurse was overseas when she received the call.
In short, it is possible the 2Day FM presenters broke the law, but highly unlikely the station will be prosecuted given commercial radio's long, mostly unprosecuted history of pranks, according to media law experts who spoke off the record.
There has also been speculation on social media that the broadcaster could lose its licence over the incident; but the communications regulator, which is investigating the prank call, has never revoked a licence and would need to be convinced of a clear and extreme breach to do so now.
The Australian Communications and Media Authority could, however, apply license conditions relating to prank calls or on-air behaviour.
Another question is whether the 2Day FM presenters breached the Commercial Radio Codes of Practice - a rulebook developed by the radio industry together with the ACMA.
The radio presenters did not breach the privacy provisions in the codes because they only apply to news and current affairs programs, the ACMA said last week. But they may have breached other sections because the nurse did not agree to be recorded and because of the ''potentially exploitative nature of the broadcast,'' according to Dr Timothy Dwyer, a senior lecturer in the department of media and communications at the University of Sydney.
2DayFM has ploughed ahead profitably in the past despite arguably more serious breaches of the broadcasting code.
In 2009, breakfast presenter Kyle Sandilands sparked public outrage with a lie-detector stunt where he questioned a 14-year-old girl about her sex life and she admitted to being raped. The ACMA made it a condition of the station's broadcasting licence that it provide ''increased protection for children participating in live hosted entertainment programs broadcast by 2DAY-FM''.
In May this year, the ACMA found that 2DayFM had breached the ''decency provision'' of the broadcasting code when breakfast presented Kyle Sandilands called a female journalist a ''fat slag'' and a ''piece of shit'' on air.
The ACMA imposed a new license condition that for the next five years Mr Sandilands' programs must not ''offend generally accepted standard of decency'' or condone or incite violence against women.
Poll: Has your opinion of the 2DayFM prank phone call changed since Jacintha Saldanha's death?
- No, I always found it in bad taste
- No, it was a joke. The consequences weren't intended
- Yes, I no longer find it funny
Total votes: 93567.
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