Media watchdog mulls taking 2DayFM off air as law experts say ruling gives ACMA teeth

2DayThe Australian Communications and Media Authority (ACMA) is believed to be considering suspending the licence of Sydney radio station 2Day Hit 104.1 for several hours as punishment for breaching its licence conditions in the royal prank call broadcast in 2012.

Following yesterday’s High Court ruling that the ACMA does have the power to make adjudications as to criminal guilt in determining a breach of law it is thought the watchdog is set to temporarily suspend the broadcaster’s licence, in a move which could cost Southern Cross Austereo tens of thousands of dollars in ad revenues.

Agency sources have estimated the station brings in around $100,000 per day in ad revenue, based on Standard Media Index booking data, which does not cover ad sales made directly to clients.

The long-running case centred around a report from the ACMA which found 2DayFM broke NSW surveilance laws by recording two nurses and broadcasting their conversations without seeking their permission.

Media law experts have said the decision gives the regulator “teeth”, but warned it could see more broadcasters breaching their licence conditions because of the variations in laws governing the media from state to state.



Dr Margaret Simons, director of the Centre for Advancing Journalism, at the University of Melbourne, said the High Court ruling was a landmark decision that helped given the broadcast regulator teeth.

She said: “I’m no a lawyer but I think this could be quite far reaching in its effects. ACMA has always been hobbled by the fact it is a creature of administrative law which is a slow moving creature, full of grounds for appeal and process.

“The fact that the criminal law is now relevant to a licence breach is likely to be highly relevant to ACMA powers and strengthen its negotiating position.”

Author of the Journalist’s Guide to Media Law, Professor Mark Pearson agreed.

“This is fascinating decision at a whole range of levels,” said Pearson, who is a professor of journalism and social media at Griffith University. “The High Court has essentially given the ACMA some teeth it has long needed.

“This means a body can find criminal behaviour in all sorts of different areas like trespass, theft of material which might be related to news gathering exercises, etc. We are yet to think through all of the implications.”

However, he also warned that broadcasters, especially those operating nationally, would struggle to ensure all staff were trained on all the various state and federal laws to ensure there were no further breaches.

“Even the simplest of crimes could potentially render a licence in doubt,” Pearson warned. “I think this does give them more power. Had the court ruled the other way it would have rendered the ACMA a toothless tiger.”

A spokesman for the Minister for Communications Malcolm Turnbull refused to be drawn on comments by Southern Cross Austereo yesterday that the court’s decision left the ACMA to “judge the criminal guilt of broadcasters”, describing it as a “serious defect in Australian broadcasting law” and vowing to get the law changed “as a matter of urgency.”

In a statement the spokesman would only say the “Minister is considering the decision of the High Court”. However Simons argued that the decision might be a “wake up call” to the industry on self regulation.

“I think this is another wake up to the industry to get serious about self regulation,” she said. “ACMA has been about co-regulation but we have seen repeated terrible things happen and (the royal prank call case) was obviously one. If the industry wishes to avoid the intervention of law, and criminal law in particular, then it has to get real about meaningful self regulation.”



Pearson argued that rather than trying to rein in ACMA’s powers the broadcasters and politicians should look to introduce uniform national media laws on issues like the recording of others without permission, what constitutes contempt of court or invasion of privacy, in the various states and territories.

“The broadcasters say they will now lobby for legislation that counters this decision,” said Pearson. “Personally I think rather than change that law government would be better to try and get more uniform media laws across the board so that there is consistency in media law.

“We need a system where all broadcasters and journalists are not expected to know all the diverse state and territory laws on listening devices, privacy laws, contempt of court etc. That is a good place to start.”

Asked about the precedent set were ACMA to order 2Day off-air Simon noted the powers to suspend or cancel a licence were nothing new.

“It has always been theoretically possible for ACMA to take a broadcasting licence off someone for a breach of the act,” she said. “It has never been done and you would hope it was not done frequently but the airwaves are a public asset, they are licenced to the broadcasters and there are conditions on the licence. The government has always has these potentially heavy handed powers.”

Pearson said he did not believe the penalty of a few hours off-air would impact the station significantly.

“If they were to take 2Day off-air it would clearly be a message that such behaviour won’t be tolerated,” he said.  One of the problems is that the penalties by ACMA are against the station not the individuals and we have seen in the past that high profile individuals just move stations without any penalty while the previous network struggle with the licence conditions imposed.

“I think that’s a fairly light penalty in the scheme of things. The Destroy the Joint campaign against Radio 2GB, a couple of years ago, was far more effective than any ACMA decision in living memory.”

The ACMA declined to specify the severity of the sanctions it is considering but is expected to hand down it preliminary report in the coming weeks as it announces it decision on penalties in the case.

Nic Christensen 


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