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TV & Radio

Dec 10, 2012

Resisting the witch hunt on the royal prank call

The royal phone prank may have been poorly executed, but the witch hunt ensuing from the death of one of the parties shouldn't be the basis for further media regulation. Hard cases make for bad law.

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According to 2010 figures, on average around 11 people take their own lives in the UK every day, but the apparent suicide of nurse Jacintha Saldanha, unsurprisingly, garnered far more attention than most. The sickening feeling of reading about it on (for most of us) Saturday morning, of course, doesn’t begin to encompass what her family and loved ones must feel, made worse — if that’s humanly possible — by the time of year.

In response, the social media equivalent of an angry, torch-bearing mob formed quickly on Saturday. Information is transmitted at the speed of light online, but on social media outrage is carried at warp speed. Ill-informed outrage, in particular, barely needs to travel at all, and instead can blossom simultaneously in multiple minds.

A thousand weeds, and more, thus bloomed on the weekend, with media regulator ACMA fielding complaints from people around the world, people presumably unaware that, while ACMA can initiate an investigation itself, normally the broadcaster about whom people are complaining gets first crack at responding before the regulator intervenes.

Some in the local media were quick to defend radio hosts Mel Greig and Michael Christian. Others suggested there’d been a breach of the industry’s code of practice (it isn’t clear that there was). A few were damning.

The last thing the Australian mainstream media currently needs is anything suggesting greater media regulation is needed, given the government is still mulling its reaction to the Finkelstein report. But that didn’t seem to inform the responses; the Herald Sun, for example, ran two damning op-eds, including a vicious one from its opinion editor calling for the two hosts to be permanently unemployed and sympathetically reporting a call that they be “strung up”.

The lynch mob, as it turned out, wasn’t confined to new media.

Most of the reactions, hostile and not, assumed, often after a pro forma admission that it was unclear as to what might have motivated Saldanha to take her life, that it was the prank that had caused her death, even though Saldanha wasn’t the one who had passed on any confidential information, but merely transferred the call.

By Saturday afternoon, Fairfax had a live blog up and running, with breathless reports of the latest (over)reaction. In due course, we were informed that British tabloids had dispatched journalists to Australia to hunt down the offending “DJs”, and that British police wished to speak with them.

That, at least, provided whatever black humour could be obtained from all this: the discredited British police, so recently revealed to be part of an industrial-scale bribery operation run by the owners of Britain’s tabloids, who in effect operated as an arm of News International, want to give full voice to the reflexive, Empire-on-which-the-sun-never-sets extraterritoriality of the British criminal justice system by interviewing two Australians about a UK suicide. Then again, given that being prosecuted for joke tweets and offensive but harmless political statements is now normal in the UK, it’s not surprising.

Better yet, the newspaper industry that gave us phone hacking, computer hacking, industrial-scale bribery, and which is demonstrably responsible for at least one suicide and one attempted suicide in recent years, has mounted its high horse against the hated colonials. Noted journal of record The Sun — which engaged in phone hacking and mass bribery of British public officials — suggested Greig and Christian be tried for treason, and exhumed a royal scholar to explain how it could be done. The Guardian reported that some in India were calling for the Indian government to somehow intervene.

Before Saldanha’s death, it was a very different story from some UK outlets. “It simply beggars belief that a member of the public could call up and obtain details of the Duchess’s medical condition in this way,” the Daily Mail quoted a former royal press secretary as saying, before the suicide.

In fact, the Mail seemed to be a little in awe of the Australian hosts and was rather taken with Greig. “Blonde Mel Greig, 30, is said to be a ‘bundle of laughs’ who enjoys being mischievous,” the Mail enthused, before going on to discuss her private life..

By Saturday, the Mail had stopped its long-distance leering at Greig, replacing it with “sick jokers” who had provoked “global outrage”.

For those of us mystified by the public interest in the antics of a family of in-bred European billionaires, the original prank had little relevance or interest. Many were quick to conflate Greig and Christian’s actions with some of the more depraved behaviour of colleague Kyle Sandilands, but in fact there was a signal difference.

A prank or stunt that is aimed simply at humiliation of those without power or authority serves no purpose beyond vilification. But regardless of the intent of the perpetrators, this prank actually had some public interest, by revealing how strongly the culture of class-based deference lives on in the United Kingdom and how a young woman — it’s irrelevant how privileged or wealthy she is — could have her privacy so grotesquely breached by an institution with a duty of care towards her.

That the hospital — as if to confirm the role of class in this, overseen by one “Lord Glenarthur” — has subsequently sought to deflect attention from its own significant failings onto the pranksters is shoot-the-messenger stuff.

Still, it’s hard to escape the sickening stench of Sandilands in this instance because Southern Cross Austereo failed to take appropriate action on him. Sandilands should have been sacked for his repeated offences of personal vilification and misogyny, but continues to pollute the airwaves.

Community reaction to Greig and Christian is partly driven by displaced anger at the unwillingness of the broadcaster and the inability of the broadcasting regulator to deal appropriately with a far worse offender, who has flouted basic expectations of decency with apparent impunity because of his capacity to generate revenue.

Money, free speech and community reactions are all pulling the issue in different directions. The reaction of both the UK and local media is driven by the need to monetise the story, and if exploiting it means the likes of the Daily Mail turning on a penny, that’s fine: reverse all the ferrets.

But the tragedy also touched that deep-seated Australian instinct to regulate away unpopular things. The ultimate logic of much of the anger directed toward the broadcaster is that nothing that causes offence to anyone anywhere should be broadcast, because there’s always a possibility that someone will react in a tragic way, even if that couldn’t have been reasonably foreseen by a broadcaster.

That’s our growing offence culture, our growing insistence that nothing we see should conflict with our views or somehow offend us, taken to its logical end-point, and it’s a shabby basis on which to extend broadcasting regulation. Moreover, a tragedy like this — assuming there’s any connection between the prank and Saldanha’s death, which has yet to be demonstrated — is such an unusual occurrence that any regulatory reflex prompted by it is bound to make for poor outcomes. Hard cases, after all, make for bad law.

So here I am, defending the right of a broadcasting licensee I loathe to make a poorly-executed prank call that seems to have caused a heart-breaking outcome. Still, none of the alternatives — the baying for blood of the hypocrites of the British tabloids, the imperial mentality of a discredited police force, or the impulse to further restrict speech based on unforeseeable consequences — strike me as preferable.

* If you are in need of help or information visit beyondblue.org.au, call Lifeline on 131 114 or visit this page for a detailed list of support services.

Bernard Keane — Politics Editor

Bernard Keane

Politics Editor

Bernard Keane is Crikey’s political editor. Before that he was Crikey’s Canberra press gallery correspondent, covering politics, national security and economics.

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62 thoughts on “Resisting the witch hunt on the royal prank call

  1. ulysses butterfly

    And to add a little more legalese to the analsis, it’s the emotional violence version of connecting with the proverbial eggshell thin skull victime in an accident in a civil claim for negligence as taught in torts in first year law degrees.

    Such as this http://en.wikipedia.org/wiki/Eggshell_skull

    You didn’t know the victim was extra vulnerable, but you could reasonably foresee some degree of injury if only to reputation and emotional well being. The extreme consequence is but an extension of the same qualitative wrongful action. A question of degree not type.

    Better get a lawyer, better get a real good one.

  2. ulysses butterfly

    Legal practitioners with more experience than I in NSW in relation to the tort of deceit may have a view about this by the NSW Court of Appeal:

    “Held: By Sheller JA, Mason P and Handley JA agreeing: ….(3) In an action for deceit the victim of the undefined fraud is entitled to compensation for all the actual loss directly flowing from the transaction induced by the wrongdoer including consequential loss whether or not the loss was foreseeable. Smith New Court Securities Limited v Citibank NA [1996] UKHL 3; [1997] AC 254 referred to.”

    in AUYEUNG & ANOR v CHAN [1999] NSWCA 417Auyeung & v Chan [1999] NSWCA 417 (26 November 1999)

    and then there is this discussion of the tort of deceit in the High Court of Australia beyond commercial relations to personal injury for deceit, in Magill v Magill
    [2006] HCA 51, per Chief Judge Gleeson:

    “37 The elements of the tort of deceit were stated by Viscount Maugham, in Bradford Third Equitable Benefit Building Society v Borders[22], as follows (omitting his Lordship’s citation of authority):

    “First, there must be a representation of fact made by words, or, it may be, by conduct. ….. Secondly, the representation must be made with a knowledge that it is false. It must be wilfully false, or at least made in the absence of any genuine belief that it is true. Thirdly, it must be made with the intention that it should be acted upon by the plaintiff, or by a class of persons which will include the plaintiff, in the manner which resulted in damage to him. If, however, fraud be established, it is immaterial that there was no intention to cheat or injure the person to whom the false statement was made. Fourthly, it must be proved that the plaintiff has acted upon the false statement and has sustained damage by so doing.”

  3. ulysses butterfly

    It gets worse, with Gleeson CJ of the HCA here on the tort of deceit:

    “41 Harm may result from a course of action induced by a fraudulent misrepresentation, even though it has nothing to do with questions of contract or with inducement to undertake financial obligations. An example is Mafo v Adams[26] where the plaintiff was fraudulently induced to undertake an unpleasant journey, and was awarded compensation for the inconvenience and discomfort. (The case of Richardson v Silvester[27], earlier mentioned, was a case where a plaintiff was compensated for the expense of a fraudulently induced journey.) There is no reason in principle why the harm for which the tort may provide compensation should not include personal injury , or why personal injury should not include psychiatric injury, but the harm for which damages are awarded is the “actual damage directly flowing from the fraudulent inducement”, that is to say, the damage directly flowing from the alteration of the plaintiff’s position which occurred as a result of the inducement. Distress, disappointment, frustration and anger may all be natural responses to discovery of deception, but the tort of deceit does not set out to compensate people for wounded pride or dignity, or for the pain that results from broken illusions.” [end quote of the HCA]

    Sure no damages for superficial hurt feelings, but how about liability for loss from psychiatic injury and suicide when faced with destruction of a nursing career in a class conscious white bread upper class Establishment, combined with a life of media notoriety for unintentionally bringing shame onto the future King and Queen??

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