Worldwide media coverage of the hoax call made last week by Syndey radio co-hosts to the London hospital continues. Pretending to be the Queen and Prince Charles, co-hosts Mel Greig and Michael Christian of the morning show on 2DayFM called London's King Edward VII Hospital and managed to get through to attending nurse to get confidential information about the former Kate Middleton's health. Following the publicity of the hoax call, the nurse who answered the phone was found dead.
The fallout continues: Southern Cross Media Group Ltd., which owns the 2Day FM station, has now canceled the show and announced that it will cooperate with authorities. Moreover, the parent company has now banned prank calls across the company and advertising has been suspended on the station
This incident has raised some interesting legal and regulatory issues. Communications lawyers in the U.S. have pointed out that a similar hoax carried out by a U.S. based commercial radio station would be a violation of FCC rules. It now also appears that the Australian radio station owner could face criminal charges under Australian law for airing the conversation.
How would a hoax call made on a commercial Canadian radio station be addressed under Canadian law? The answer is straight-forward: don’t try this at home!
First, a look at the general regulatory framework: Canadian commercial radio stations are prohibited from broadcasting without a licence issued by the CRTC pursuant to the Broadcasting Act. There are several guiding statutory broadcasting policy objectives governing the issuances of such licences by the CRTC under the Act. Among these objectives are the requirement that all licensed broadcasters “have a responsibility for programs they broadcast…”. The CRTC has found that a moderator or host of a radio program is an employee of the licensee and as such exercises the responsibility of the licensee under the Act. Producers and programmers also carry out the licensee's responsibilities. Even comments made on a radio show by guests or other non- employees of the licensee do not absolve the licensee of its responsibilities under the Act.
More specifically the Act also requires that “the programming provided by each broadcaster should be of high standard...". To help ensure that radio programming is of high standard, the CRTC Radio Regulations prohibit the broadcast of anything in contravention of the law; any abusive comment; any obscene or profane language; any false or misleading news. In particular, section 3 of the Radio Regulations expressly state that a radio station licensee “shall not broadcast any telephone interview or conversation, or any part thereof, with any person unless i) the person's oral or written consent to the interview or conversation being broadcast was obtained prior to the broadcast, or ii) the person telephoned the station for the purpose of participating in a broadcast". The CRTC has previously reminded all radio broadcasters “that those who initiate an interview must obtain the permission of the person called before broadcasting his or her remarks”. The CRTC has given this requirement a liberal interpretation: it rejected an argument made by a radio licensee that the requirement to obtain “written consent” before broadcasting an interview or conversation applies only where the broadcast is of a conversation with a person who is expressing an opinion or comment as opposed to a fact. Such a narrow interpretation was, in the CRTC’s view, “inconsistent with the wording of the [consent requirement in the regulation]”.
The fines for breaching the regulations are significant: under section 32 of the Broadcasting Act, every corporate licensee that contravenes or fails to comply with any regulation including one made under the Radio Regulations is potentially liable for a fine (punishable on summary conviction) of up to $250,000 for a first offence and up to $500,000 for each subsequent offence.
In summary, a prank or hoax similar to the one carried out by the Australian radio hosts would clearly be contrary to the Canadian broadcasting regulatory framework and could result in significant monetary penalties. Canadian radio stations should be mindful of these strictures in the ongoing battle for audience share in today’s competitive radio sector.