The Australian Communications and Media Authority will soon force 2Day FM to broadcast a three-hour special program on media ethics and mental health.

The rather novel punishment, agreed to by Southern Cross Austereo management and announced this morning, is the long-awaited slap-down to the 2012 prank-call incident that led to a British nurse Jacintha Saldanha committing suicide after being fooled into transferring a call made by two 2Day FM hosts to the royal family.

Southern Cross Austereo has been bitterly fighting ACMA’s right to rule on the affair, after the broadcast regulator’s draft report explored whether the station had breached the NSW Surveillance Devices Act (the High Court sided with ACMA in its decision, paving the way for the release of today’s report). In its report, ACMA found the station had committed an offence (though NSW Police have said they are not investigating). Today’s investigation report states:

“The ACMA formed the opinion that the licensee had recorded and subsequently broadcast a private conversation without the consent of the parties to that conversation, which are offences under sections 7 and 11 of the Surveillance Devices Act 2007 (NSW).”

Given the commercial radio code of practice does not allow the airways to be used in a criminal offence, many had expected 2Day FM to be taken off air for a few hours as punishment for the prank. But Crikey understands the station’s new senior management — after its longstanding chairman Max “The Axe” Moore-Wilton and CEO Rhys Holleran stepped down in recent months — has been far more amenable to working constructively with ACMA. As a result, both sides believe the three-hour special program to be a better solution than a big chunk of dead air.

The program will air before the end of September, and will take place in the same evening time-slot as the prank call first aired. Profits from advertising, if the station decides to advertise in the program, will be donated to charity.

As well as the educational program, 2Day FM will have a special license condition imposed on it for the next three years, which will ban the station from recording people without their consent. After the prank call was recorded, 2Day FM spent five hours trying to obtain the consent of all involved, but ultimately decided to air the call without this consent.

ACMA has also accepted an enforceable undertaking from 2DayFM that all its hosts, production and management personnel will “actively engage with their ethical and legal obligations through a targeted training program”.

In a statement, SCA chairman Peter Bush said 2Day FM and its presenters “intended no harm to anyone as a result of the prank call”.

“We accept the ACMA’s finding that 2DayFM was in breach when it failed to obtain consent from the nurses involved before broadcasting the recording of the prank call. While both NSW State and Commonwealth police decided the matter should not be prosecuted and the station did not identify the people on the call by name, we accept the ACMA’s view that consent of parties must be obtained before such calls are broadcast.

“2Day FM deeply regrets and apologises for its breaches and has agreed with the ACMA several actions that will betaken in response to the matter.”

ACMA was this morning portraying the punishment as the best outcome for all. “The combined approach of the special broadcast and targeted training program, together with the imposition of a new licence condition, presents a positive alternative to what would have otherwise been a brief suspension of 2DayFM’s licence,” said chairman Chris Chapman. “This is a much more constructive way of ensuing future compliance by 2DayFM with important community safeguards.”

Peter Fray

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Peter Fray
Editor-in-chief of Crikey