The Summer 30 royal prank call: outcomes for Australian broadcasting regulation

Abstract

On a Tuesday afternoon in December three years ago, two young presenters on the Australian radio programme Summer 30 devised a prank call to impersonate Queen Elizabeth and Prince Charles.The events that followed were soon known around the world. The station's licensee, Today FM (Sydney) Pty Ltd, tried to stop Australia's broadcasting regulator, the Australian Communications and Media Authority (ACMA), from finding it in beach of statutory and regulatory rules. But a recent unanimous decision of the High Court of Australia, reversing a unanimous decision of the Federal Court, has freed the ACMA to publish its investigation report and take enforcement action.To the industry, the matter demonstrates severe regulatory overreach. To others, it exposes gaps in the industry codes of practice. Given the international interest in the subject, this note reports on the High Court's decision within the context of the ACMA's long-running investigation. INDUSTRY AND REGULATORY BACKGROUNDBroadcasting in Australia is regulated almost exclusively under federal law. Licences for commercial radio services are issued by the ACMA under the Broadcasting Services Act 1992 (Cth) (BSA). The Act imposes conditions on these licences and establishes the framework for the industry to develop, and the ACMA to register, a code of practice.1 Matters that may be addressed by a code -for example, accuracy and fairness in news and current affairs and avoidance of indecent and harmful material -are included in an indicative list in s 123(2) of the Act. 2 The ACMA can develop its own * Visiting Fellow, Faculty of Law, University of Technology Sydney. All websites accessed 2 May 2015 1 Commercial radio licences are allocated by the ACMA under Division 1 of Part 4 of the BSA. Standard licence conditions are imposed under Schedule 2. Codes of practice are registered under s 123. 2 The ACMA is required by s 123(4) to register a code of practice if it is satisfied of three preconditions: it is endorsed by a majority of broadcasters in that section of the industry; there has been an adequate opportunity for programme standards if it considers there is convincing evidence that an industry code of practice is not operating to provide appropriate community safeguards. In the commercial radio sector, for example, the ACMA's standards dealing with disclosure of commercial agreements in current affairs programmes supplement a code provision on distinguishing advertising and programme material.3As in other jurisdictions, the radio industry is multi-faceted. Commercial operators offer talk and music-based formats on generally high-powered services on the AM and FM bands. They are complemented by public service ('national') broadcasters and community-based services, as well as niche 'narrowcasting' services. 4 All except the last category have allocations on the DAB+ multiplexes that serve the capital cities, but not regional areas.Summer 30 was among the programmes offered by radio station 2Day FM, part of the Southern Cross Austereo group that controls radio ...

Reflections upon the Privacy in the Converged Commercial Radio: A Case Study of Royal Prank

“…2DayFM is a part of the SCA group that controls radio and television stations around Australia. At the time of the prank call in 2012, it was one of the most popular radio stations with 259,000 listeners (Wilding, 2015). The Royal Prank materials were recorded on the 4th of December and broadcast on-air on the 5th of December 2012.…”

“…The act of recording material by journalists and its post-production were separated. "The call was established by the station's PAPX system, linked to the studio via an answering device known as Phone Box, then recorded and played out through equipment known as Voxpro" (Wilding, 2015). Because the prank itself fit the call-joke genre, and its content was very attractive, it became part of the broadcast of Hot 30 Countdown, which was very popular among listeners.…”

“…As a result of an investigation of ACMA it turned out that 2DayFM broke the 'commercial radio code of practice' in Australia (Wilding, 2015). This rule also applies in the British broadcasting law, including in the Communications Act of 2003 and the Broadcasting Act of 1996 (Ofcom, 2017).…”

“…The station intentionally broke the commercial radio code: By broadcasting the words of identifiable persons in circumstances where those persons: were not in-formed in advance that their words may be broadcast, would not have been aware that their words may be broadcast, did not give their consent to the broadcast of the words. (Wilding, 2015) The station's decision to broadcast the Royal Prank without the consent was therefore a play with privacy policy. A media law specialist at Sydney University, Professor Barbara McDonald, said that "2DayFM knew they should be getting consent (to air the interview) and they failed to.…”

The case for reviewing broadcasting co-regulation

“…In approaching this topic, we note there is little scholarly research on the subject of communications co-regulation. In relation to broadcasting, there is some commentary on inadequacies of the co-regulatory code of practice relating to commercial radio (Turner, 2003;Hitchens, 2004;Wilding, 2015) and there is research on self-regulation, particularly in relation to food advertising codes (eg, Reeve, 2016Reeve, , 2013Handsley and Reeve, 2018;Mackay, 2009). There is also some commentary on the co-regulatory internet and telecommunications schemes (Corker, Nugent and Porter, 2000;Williams, 2003;Field, 2000;andWilding, 2005, 2006).…”