Comment from Peter Saxon

Shortly, if not already, Southern Cross Austereo, owners of 2Day FM should receive notification of the penalty that the ACMA will impose on them for having breached a condition of their Broadcasting Licence. The breach, according to the ACMA, is that they have used their licence in the commission of a criminal offence by contravening section 11.1 of the NSW Surveillance Devices act of 2007 in relation to what has now become known as The Royal Prank. SCA have 15 days to consider it before it is made public. 

As has been well documented, 2Day FM has not actually been charged by Police but the ACMA can decide that the law has been broken for the purposes of a broadcast licence breach and has exercised its powers in that regard. It contends that, charged or not, 2Day used its licence in committing an offence by not getting the nurses’ permission to record and broadcast them on 2Day-FM.

I realise that many people would like to see “the book thrown” at 2Day-FM and its owner SCA but I fear it has less to do with the facts of the case than the desire to cut down a tall poppy.

Whatever the ACMA decide will not just affect SCA, it will affect the whole broadcast industry. If they do “throw the book” at 2Day no one in charge of FM stations targeting youth should be cheering. Every one of the Content Directors I spoke to admitted that faced with the same kind of predicament they would look for ways of putting the content to air rather than scrapping it.

In this case, even though the radio codes “prohibit the broadcast of statements by identifiable persons without their consent” it would be difficult for an energetic CD, imbued the task of delivering compelling content, to believe that anyone listening to a radio station in Sydney would be able to identify the voices of two nurses who live and work in London.

Should they have done it? No. Of course not. Stations should not allow anything to go to air without the proper permissions or licensing of copyright.

But the punishment should fit the crime. Here are the three reasons I’d go easy on 2Day-FM if it were me…

1. Time served, penalties paid

Unless the ACMA is planning to set a precedent and suspend or cancel 2Day FM’s broadcast licence altogether, any penalty it brings down would be nothing compared to the penalties the station has already paid. 

Firstly, due to a social media backlash it lost well over $6 million in cancelled advertising. It also voluntarily paid nurse Saldanha’s family a reported $US725,000 as a good will gesture even though none of the authorities, including the ACMA, laid any blame on the station for her tragic death.

It could also be argued that the ill-fated decision not to meet Kyle and Jackie O’s demands and to let them go was in some part due to the onerous licence conditions previously imposed by the ACMA for the now infamous “lie detector” affair and Kyle’s “fat slag” comments. They clearly couldn’t afford for Kyle to disturb the watchdog again. Of course, that decision to let him go has resulted in the total collapse of the station from which it is unlikely to emerge anytime soon.

If this were another kind of trial, the judge would likely take into account “time served” and may let the accused free if it was deemed that he had already paid an appropriate penalty, or sometimes if it were deemed that the accused had already suffered enough in terms of loss of esteem and dignity in the court of public opinion.

In this case the accused, 2Day-FM has already paid a heavy penalty both financially and through social media. 

Or put another way, the question is: Are they likely to reoffend unless the ACMA slaps a heavy penalty on them? Given everything it has cost them, probably not.

2. 2Day cannot be held responsible for the nurse’s death

Although the prank resulted in grave and unexpected consequences, all the authorities agree that nobody could have reasonably foreseen them. 

The ACMA has stated that nurse Saldanha’s death has not been factored into their deliberations. Yet, there’s a nagging suspicion that it would have been unlikely for any investigation to have taken place if no tragedy had’ve occurred and no formal complaint laid.

Indeed, the unidentified nurse who actually spoke to the two pranksters for some minutes (nurse Saldanha merely put the call through to her and barely spoke a few words) has not made a complaint.  

Police both in NSW and Scotland Yard have, evidently, separated the prank from the tragedy and have decided that the prank was too trivial to pursue as a criminal offence.

The ACMA sees it differently, however, and has the power, recently confirmed by both the High and the Federal Courts, to pursue the matter as if a criminal offence has occurred regardless of whether law enforcement authorities choose to charge 2Day FM or not.

3. Priors have been neutralised

The expectation for a harsh penalty partly stems from the fact that 2Day FM had a couple of prior licence conditions placed on it for transgressions by their former Breakfast co-host Kyle Sandilands.

During an interview in earlier this year with ACMA Chairman Chris Chapman, I asked him how Kyle and Jackie O’s departure from 2Day FM affects the licence conditions imposed on the station.

radioinfo: In 2013, the ACMA imposed an additional licence condition on 2Day FM in regards to the “decency codes” because of events known as “the fat slag” affair that occurred on the Kyle and Jackie O Breakfast Show. Now that they’ve gone to KIIS FM, does this mean that 2Day FM is off the hook as far as that licence condition is concerned?

Chapman: Yes.

In the case of the Royal Prank, not for one minute am I advocating that what 2Day FM did was right. It wasn’t. But it should be put in its proper context. 

If you take the tragic death and the prior licence conditions out of the equation, the Royal Prank becomes relatively trivial – a prank that even Prince Charles was laughing off before nurse Saldanha’s suicide became apparent.

Certainly, the two priors associated with Sandilands are, on their own, far more serious and offensive.

Yes, 2Day FM did not get permission from the nurses in London to record and broadcast their voices in Sydney. But if the police have deemed the offence so trivial that it was not worth laying charges then perhaps, given the enormous cost already paid by SCA and 2Day FM, the ACMA might show some clemency.

But I wouldn’t hold my breath.

If this article has raised issues for you or someone you know, you can contact Beyond Blue for help here or phone 1300 22 46 36.

Peter Saxon