Can the ACMA shut down 2DayFM?

2day fm sydneyThe courts will soon decide whether the ACMA has the power to determine if Sydney radio station 2DayFM broke the law over its disastrous Royal prank. With the station’s licence in the balance, Megan Reynolds investigates in a piece that first appeared in Encore.

This month when the Federal Court reviews 2DayFM’s application to block the Australian Communications and Media Authority from investigating a radio prank gone horribly wrong, it will be a landmark case. It will determine whether the regulator has the power to investigate and make findings about a criminal matter, even where the police have not.

Professor Mark Pearson, an academic specialising in media law, says: “The investigation is in the public interest, and the fact ACMA is proceeding with this matter shows it has the intent to act in the public interest and the station, by taking these proceedings, will show what the limits of that are.”

It’s the latest twist in a tragedy which has divided the industry for the last six months. The same goes for ACMA’s involvement. While the likes of Pearson argue that such an investigation is in the public interest, this week, the ABC’s Media Watch presenter Jonathan Holmes suggested ACMA is attempting to act as “prosecutor, judge and jury” on a criminal matter.

In order to understand the case, it’s worth revisiting the course of events that led to the action. In early December last year, new Today Network Hot 30 presenters Mel Greig and Michael ‘MC’ Christian called the King Edward VII Hospital in London where Prince William’s pregnant wife Kate was being treated for an acute bout of morning sickness, in what they thought would be a harmless prank.

Greig (badly) impersonated the Queen, and Christian did an even worse Prince Charles impersonation.

While the duo were ostensibly seeking information about the condition of the Duchess, they never expected to get anywhere. But tragically for all concerned, nurse Jacintha Saldanha, 46, fell for their hoax. She transferred the call, private information on the Duchess’s condition was shared by another nurse, and a media storm ensued when the recording was broadcast.

Initially, Sydney’s 2DayFM, where the presenters were based – and the wider national Today Network, which also broadcast the stunt – promoted it for all it was worth. Three days later, the nurse killed herself.

The backlash was instant. Within hours, Southern Cross Austereo (SCA) CEO Rhys Holleran told a press conference that no laws had been broken. As an advertising boycott began to get underway, 2DayFM made the decision to cancel all ads on the station.

Two days later, in a claim that may yet be tested in court, Holleran claimed to 3AW’s Neil Mitchell that the station had made five phone calls to the UK to get permission to air the call.

The same day, SCA axed the two-decade-old radio show.

Five days after the death, in what was a relatively unusual but not unprecedented move, ACMA launched an ‘own motion’ investigation to find out whether the SCA station had breached the conditions of its licence to broadcast or the Commercial Radio Codes of Practice.

When ACMA revealed its preliminary findings to the broadcaster last week, before the results were to be made public, the station lodged proceedings in the Federal Court to prevent the organisation from drawing its anticipated conclusion. According to court documents, ACMA’s preliminary findings state that 2DayFM contravened clause 11.1 of the Surveillance Devices Act 2007 (NSW), whereby a person cannot publish or communicate a private conversation recorded with a listening device without the permission of those involved. Breaching this law can result in a fine payable by the corporation or up to five years’ imprisonment if convicted by a court. However, for 2DayFM it could mean the loss of their licence, as ACMA states that by breaking the law, 2DayFM used its broadcasting service in the commission of an offence, and therefore breached its licence conditions.

Unlike a straightforward breach of the code of practice, breaching a licence condition gives ACMA far greater sanctions it can apply.

In its legal action, SCA argues the purported preliminary findings “are beyond power or invalid because [they are] inconsistent with the separation of executive and judicial power mandated by the Commonwealth Constitution”.

And 2DayFM has called for the ACMA to be restrained from making any determination that it committed a criminal offence or breached its licence conditions. So far, police authorities in Australia have taken no formal action on the question of a potential breach of the Surveillance Devices Act.

One experienced radio presenter told Encore he does not believe the station broke the law.

“My gut feeling is the ACMA is fishing around to find something they could pin on the radio station but there is no case to answer. I don’t believe there is,” the broadcaster told Encore.

“ACMA doesn’t have any capacity to investigate any criminality and police haven’t investigated a listening and devices allegation. ACMA are jumping up and down trying to make as much noise as possible to pin something on the radio station, it’s a lot of smoke and fury.”

The broadcaster believes that because the call was made internationally, the NSW law may not apply – a belief shared by others in the industry. However, Stephen von Muenster, a media and communications lawyer based in Sydney who specialises in the creative industries, says he believes only one person would have to be in the jurisdiction for the law to be applied, particularly if the call was made from NSW where the law is enforced.

And Professor Pearson believes NSW Police should investigate. “I think it’s a responsibility here for the police to investigate it and the prosecutor has to decide whether it amounts to a sufficiently likely case for them to bring charges or not,” he says.

But regardless of whether or not ACMA has the jurisdiction, the regulator has the power to pull 2DayFM’s licence to broadcast if it is found to have breached its licence conditions of decency. Although it is without precedent, in this case von Muenster believes ACMA will pull the licence if the Federal Court finds it has the power to do so. Furthermore, by taking court action, 2DayFM is making a tactical move to prevent or delay such a ruling, von Muenster suggests.

“They are protecting their position and protecting their interests by moving preemptively, getting the matter determined by an impartial judge, and hoping to get a better hearing,” he says. “But the problem they face is that breaking a criminal law is not the only grounds on which they could seek to suspend their licence. ACMA wouldn’t terminate their licence on just one ground, they would do it on a number of grounds, and that’s what they are so afraid of.”

This is not the first time 2DayFM has been under investigation by ACMA, and additional licence conditions were imposed on the shows presented by Kyle Sandilands following his conduct on the Kyle and Jackie O show.

In 2009 Sandilands was infamously involved in an on-air segment which featured a 14-year-old girl, a lie detector and the confession of sexual abuse. Then in 2012 the presenter referred to a female News Limited journalists as a ‘fat slag’ after she had reported poor social media response to Kyle and Jackie O’s television special A Night with the Stars.

Additional conditions to comply with the common standards of decency were imposed on any show presented by Sandilands.

“It’s almost like they have done it again,” says von Muenster. “They have had a warning, they’ve had additional licence conditions, and ACMA is probably on pretty strong grounds here. I think 2DayFM has got problems.”

The Federal Court will hear the application on July 17.

Encore issue 20This story first appeared in the weekly edition of Encore available for iPad and Android tablets. Visit encore.com.au for a preview of the app or click below to download.


Get the latest media and marketing industry news (and views) direct to your inbox.

Sign up to the free Mumbrella newsletter now.



Sign up to our free daily update to get the latest in media and marketing.