If New Zealand DJs pulled off the same kind of hoax call as 2Day FM DJs Mel Greig and Michael Christian, they could be looking at time in jail.
The Australian pair called the London Hospital where the Duchess of Cambridge was being treated for acute morning sickness, posing as the Queen and Prince Charles. They were told confidential medical information. The pre-recorded hoax call was then broadcast on 2Day FM. The nurse who put the call through, mother of two Jacintha Saldanha, subsequently took her own life.
“If it had happened here, the DJs could well be prosecuted under the Telecommunications Act 2001,” Chapman Tripp partner Matt Sumpter told NBR.
The charge would be “misuse of a telephone device.”
Section 112(2)(b) of the Telecommunications Act makes it a crime to use a phone to give a “fictitious order, instruction or message,” Mr Sumpter notes.
The penalties are up to three months in jail, or a $2000 fine.
Producer, managers, station culpable?
Southern Cross Austereo, which owns 2Day FM, has said the pre-recorded call had inhouse legal vetting.
Like Ms Greig and Mr Christianson, it has been vague about who exactly gave the green light to broadcast the hoax.
Radio Broadcasters Association boss Bill Francis told NBR ONLINE the pair’s producer must have been involved in the decision. It was also typical for a content or programme director to be brought into a discussion about a controversial call.
Regardless, it’s still the DJs who are in the legal crosshairs, not the producer, any management, or the station itself or its owner.
“The broadcasting itself probably isn’t a crime,” Chapman Tripp solicitor Simon Elliot explains.
(Beyond criminal charges, a broadcaster can be fined by the Broadcasting Standards Authority which, for example, fined TVNZ $3000 in June last year and ordered a apology over comments made by former Breakfast presenter Paul Henry).
Wellington barrister John Edwards agrees. “There’s no vicarious liability,” he told NBR.
“They [the producer or programme director] are making a decision about broadcast but not the ones misusing the telephone or misrepresenting themselves.”
Could the DJs raise the fact that they didn’t decide to broadcast the recording as a defence?
“No, the offence under the Telecommunications Act that the DJs would be on the hook,” Mr Elliot says. They were the ones who gave a fictitious order, instruction or message.
However, not being involved in the decision to broadcast would be a factor in sentencing, and could potentially lighten the penalty.
Legal to broadcast a secret recording?
Another dimension to the 2Day FM hoax call is that neither of the two nurses involved knew the call was being recorded (the station made at least five attempts to contact the hospital to discuss the circumstances of the call, but has not said if those calls involved seeking permission to broadcast).
In New Zealand, it is legal under the Crimes Act to record a call, as long as you are party to that call, Mr Edwards says (that is, one of the people involved in the conversation).
Under the Privacy Act, you can’t broadcast or otherwise use that audio.
A precedent was set in 2000 when the High Court fined lawyer Christopher Harder $2750 for using an audio recording of a call with a person who was taking legal action against one of his clients (in a nuance, the Court allowed a recording of an unsolicited call that Mr Harder answered, but not a follow-up call that he arranged).
The media is exempt from the Privacy Act restriction on broadcasting secretly-recorded audio.
But Mr Edwards says a key issue is whether this media exemption extends to “infotainment” such as DJs making hoax calls.
His feel is that it would not.
However, there has been no test case to establish the boundaries of the law.
Cross-border calls double the trouble - or maybe not
The situation is more serious if a hoax call crosses borders.
“The international dimension is a big deal,” Mr Sumpter says.
“By prank-calling the UK the DJs have probably committed a criminal offence like ‘misuse of a phone’ in the UK.
“But it’s hard to see the DJs being extradited over this tragedy as the “crime” (if it is one) isn’t serious enough to engage extradition arrangements with Britain. Here in New Zealand the offence has to be punishable by 12 months or more in jail before extradition is on the cards.”
MediaWorks says no issues with Edge replay
A station in the MediaWorks stable, The Edge, raised eyebrows by replaying the 2Day FM hoax hospital call.
Media spokeswoman Rachel Lorimer confirmed the replay, but said told NBR ONLINE there was no legal issue.
"I can confirm that The Edge was one of a number of radio stations, TV and online news outlets that replayed the 2DayFM prank call, which was a leading news story worldwide," Ms Lorimer said.
"The replay and reporting of the story has not raised any broadcasting standards issues for us."