A word on impersonation

So it seems that a tweet I posted earlier tonight really hit a chord with the online zeitgeist.

My tweet specifically called for the sacking of 2DayFM Sydney presenters Mel Greig, Michael Christian & their producers in respect of their impersonating members of the British Royal Family when calling a hospital for the sole purpose of obtaining details about the medical condition of the Dutchess of Cambridge.

For those who don’t know, Jacintha Saldanha – the hospital nurse/receptionist who took this prank call and disclosed information she likely wasn’t supposed to has been found dead this morning UK time, suspected to have committed suicide at a location near her place of employment, King Edward VII’s Hospital.

As of writing, my tweet has reteeted by no less than 296 308 individuals in the space of two 16 hours, with a current estimated combined reach of over 20,000 100,000+ persons. It has been retweeted so many times that Twitter’s own email engine that notifies customers of retweets stopped sending me messages an hour ago. This is not withstanding that my iPad continues to chime every 30-60sec informing of a new retweet.

Anyway, background noise aside – my posting of my thoughts to Facebook lead to some friends raising a couple of interesting points and alternative views in respect of the story. These friends posited views including:

• “If the nurse followed the rules, it would have never got to this point.”
• “And she could have been planning to top herself for days or have a history of mental illness.”
• “Yes it is sad. Yes the prank was in bad taste but you cannot control a persons mental state or predict it. The correlation is very loose.”

Now I don’t disagree with those points one bit – they are perfectly valid views to express, and obviously none of us can even beging to understand if there are any other factors outside of this prank call which could have contibuted to this lady taking her own life.

However, one must look at the flipside of this. While these points of view may centre around the latin falacy of post hoc ergo propter hoc (after it, therefore because of it), one must shine a light directly at all those parties involved in the execution and broadcast of the prank.

The question therefore must be asked: Could a normal person reasonably forsee that the prank would obtain information to which those doing so were not entitled, and could the broadcast of this information have forseeably lead to sustained, significant public embarassment for the nurse in question should their identity be revealled.

My answer to those questions, as a normal person, would be yes – on both counts.

I am firmly of the view that any normal, reasonable person could have forseen this as an outcome. One need only look at the way the British press has operated in recent times – leading to the establishment of a major parlimentary enquiry lead by Lord Justice Leveson that will most likely lead to more stringent press regulation.

Using a carriage service to menace, harass or cause offence

Anyone with a background in any form of broadcasting knows full well that the prank as conducted was not only a gross invasion of privacy by attempting to impersonate someone – much less members of that countries royal family, but the sheer number of offences the two hosts plus others involved have committed under Australian, UK and EU law.

The first of these that comes to mind Criminal Code (Cwlth) 1995, Section 474.17:

474.17 Using a carriage service to menace, harass or cause offence

(1) A person is guilty of an offence if:
(a) the person uses a carriage service; and
(b) the person does so in a way (whether by the method of use or the content of a communication, or both) that reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive.

Penalty: Imprisonment for 3 years.

The call to the hospital in London would have originated from a telephone service operated by, from, or transiting a carriage service within Australia, therefore the placing of that telephone call would fall within the definitions of the act, but also 474.17 and other aspects of the Commonwealth and NSW criminal codes.

And this is before we even consider offences under UK or EU criminal statutes, as the call was terminated in those locales, and therefore such activity also gives rise to criminal liability there. We need not re-visit the outrage uncovered during the Levenson Enquiry of the large scale of ignorance, invasion of privacy and illegal activity conducted by the press solely for the purpose of a story.

The radio codes of practice

We also have to look at that the Commercial Radio Codes of Practice which exist for the industry because of statuatory legislation. These codes are ones which are legally binding tha all broadcasters legally have to follow, and can be enforced by the regulatory agency when breached.

Their existance and legal standing is empowered by Section 43 of the Broadcasting Services Act 1992.

The Commercial Radio Codes of Practice make a number of statements in respect of this kind of content:

9.1 Subject to Codes 9.2 to 9.3 below, a licensee must not broadcast a program which, in all of the circumstances:
(a) treats participants in live hosted entertainment programs in a highly demeaning or highly exploitative manner;

One could argue that the impersonation of members of the royal family for the sole purpose of gaining information on a member of the royal household would constitute treating a participant, unknowingly, in a “highly exploitative manner“.

Reasonable privacy, and an invalid argument of public interest

One area of the codes that has yet to be legally tested is if programs that would be considered as live entertainment could actually be reclassified as news and current affairs programs – on account that the presenters frequently engage in updating their audience with such information, and they usually broadcast news at frequent intervals.

If this was tested legally, and found that the radio show in question could be treated as news and current affairs programs under the codes of practice, Section 2.1 of same then comes into play. It states:

“2.1 News programs (including news flashes) broadcast by a licensee must:
(d) not use material relating to a person‟s personal or private affairs, or which invades an individual‟s privacy, unless there is a public interest in broadcasting such information.”

On this point, the argument of public interest fails. The official media channel for the party in question, being the Press Office of St James Palace did issue a media release containing reasonable detail in respect of the Dutchess’s hospitalisation. It can be reasonably argued that no more information other than what was contained in that release needed to be made available as there wasn’t a clear public interest reason for doing so.

Having dispensed with the public interest argument, we then must look at if the action was an invasion of an individuals privacy. On that case, the lay person must say yes. Any reasonable person would have known that calling up any such place for information on a patient and impersonating a member of their family to do so was both illegal and improper, and would unreasonably invade the privacy of both the Duke and Dutchess of Cambridge, as well as their extended family and of course the British Monarcy.

Station exhibited poor moral judgement

And then we have to look at the moral aspect of it. You’d have to be a pretty dumb person not to know the undue and unnecessary pressure this would put on the poor women taking the call.

While I grant that she may have not acted within relevant professional standards and requirements in respect of information disclosure, the publication of the prank and the obvious subsequent naming of the poor lady, would forseeably lead to undue emotional stresses which was likely to have either caused, or contributed to, the reasons behind her reported suicide.

2DayFM has not learned its lesson

2DayFM has been frequently critisised by the regulator for its breaches of the codes of practice. Some of the stations more notable breaches in recent times include:

1. 2006: Broadcasting inappropriate sexual material during Lowie’s Hot 30 Countdown
2. 2010: Failed to provide protection for children participating in live hosted entertainment programs broadcast by 2DAY-FM, resulting in a license condition being imposed.
3. May 2012: Comments by Kyle Sandilands breach decency standards, where the station had a second license condition imposed on it after the aforementioned presenter “broadcast[ed] indecent content and content that demeans women or girls“.

The imposing of the May 2012 license condition was also appealed by the station to the Administrative Appeals Tribunal, who ruled to uphold ACMA’s decision to impose the condition.

So, where do we go from here?

In the UK, the debate about who is fit and proper to hold licenses or positions that allow them to act as a media outlet is one that continues. It’s also a debate, that whilst not as intense, is being had in Australia.

Should the laws be changed so that repeat offenders can be dealt with more swiftly? Yes.

Should the laws be changed so that media outlets who repeatidly breach the expected standards lose their right to broadcast? Absolutely.

Would these two outcomes combined force media companies to be more cautious in how they do business to protect their assets, by not allowing presenters like those named above to conduct stupid pranks, if they knew the government could close them down and take everything they own and have built with the stroke of a few pens? I submit they would be more cautious, and put their presenters on much shorter leashes given the financial risk to them if they constantly make missteps – particually ones that lead such tragic circumstances.