The law, ethics and morality of prank calls: wrong, wrong and wrong

By MARK PEARSON

The royal prank call saga has been so disturbing an episode that a worthwhile policy outcome should result from this regrettable human tragedy: the total demise of the prank call.

This blog is not aimed at the 2Day FM disc jockeys who are attempting to deal with the emotional fallout from the prank call that preceded the suicide of a nurse at a London hospital.

They were indeed ‘just doing their job’. We now need to dispense with that job – the practice of making prank calls.

The law and ethics of the matter are quite clear.

The NSW Surveillance Devices Act prohibits the broadcast of recorded private conversations without the permission of the participants.

The Commercial Radio Code of Practice does likewise at section 6.

As with any legal or regulatory matter, the lawyers for the radio station might argue over interpretations of both – and whether the conversations were ‘private’ or the parties ‘identifiable’ – but the path is certainly open for both the police and the regulator to move against them.

My beef is with the genre of prank calls more generally – not merely those where the consent of the target has not been granted to broadcast them.

I’ve heard many arguments in their favour in recent days, including that they are a time-worn practice in commercial radio, that they are just a bit of fun, that good sports will laugh them off, that they are part of an Australian tradition of laconic humour.

Well, so were racist jokes and workplace bullying pranks last century, and neither are acceptable in the modern era.

The basic premise of the prank call is to exploit the naivety, trust, and vulnerability of the target for the entertainment of the listener.

A prank call typically involves a family member, friend or work colleague contacting the radio station to set the target up with some information about something they know has upset them and will likely trigger a reaction.

By definition, the individual is already vulnerable in some way – frustrated by bureaucracy, upset over a relationship, feeling guilty about some trivial misdemeanour, or just known to be gullible and an easy target.

Just a few decades ago all this might have been written off as good fun – just like the workplace tricks colleagues would play on their apprentices or the racist and misogynist jokes you could read in the newspaper or watch on television.

But society has moved on. Both of those practices are now illegal under harassment and anti-discrimination laws.

And we now have data that tells us that the prank call ‘victim’ might be much more vulnerable than we previously suspected.

According to Sane Australia, about 20 per cent of adults experience a mental disorder in any year – typically anxiety or depression.

When a radio station conducts a prank call, they are never absolutely sure about the mental and emotional state of the person they are calling. Sooner or later that call is going to reach a person at a particularly vulnerable moment of his or her life.

A moment when they are low on self esteem, high on anxiety or perhaps under the influence of a substance – prescribed or otherwise.

They might well feel the world is set against them.

The idea of the prank call is to lead them on and to encourage their level of anxiety or emotion – all as part of the theatre of the ruse – and to end by laughing at their expense.

We now have decades of psychological research proving that this may be detrimental. What vulnerable people need at that moment in their lives is not a prank call but expert counselling.

They need their friends to support them, not set them up to be the laughing stock of society.

And any ‘consent’ they may give to a DJ encouraging them to go along with the joke – in the moments after they have just been deceived – has to be questioned.

Peer or societal pressure to “be a good sport” might generate an “Oh … okay” kind of permission from such an individual still reeling from the experience, but is that true consent?

Then we all hear it and have a good laugh at them for being so naïve or gullible or anxious or angry and then leave them to pick up the emotional pieces.

This particular radio station has made emotional exploitation part of its commercial model. Just look at the long history of complaint and relative inaction over its leading disc jockey Kyle Sandilands in recent years, well documented on Media Watch.

It is good that the 2Day FM management has been moved to suspend its prank calls.

Now it’s time for the rest of the industry to do so as well – permanently. We are at a pivotal moment in media history and it is time for industry to build the public’s trust, not to exploit it for a cheap laugh at someone’s expense.

* This blog has dealt with mental health issues. If you are in Australia, please call Lifeline on 13 11 14  for 24 hour counselling, information and referrals or the beyondblue info line 1300 22 4636.

© Mark Pearson 2012

Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer. My only advice is that you consult a lawyer before taking any legal risks.

5 Comments

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5 responses to “The law, ethics and morality of prank calls: wrong, wrong and wrong

  1. Matthew Laing

    Mark I just read the reprint on this at the ABC, and I have to say I think the media frenzy and then the endless opinions of the commentariat have tried to make this into a teaching moment when there is not much to learn. The chain of events is upsetting, but it’s also highly unusual and suicide resulting from a prank phone call is not something anyone would expect. Nurse Saldanha’s death is tragic, but her suicide was entirely out of proportion with what she experienced. You’ve gone to pains to dissect prank phone calls as a most sinister and psychologically tormenting torture, but every day I read satire, opinion columns and cartoons in the dailies that are far more venomous, personal and vulnerability-exploiting than anything done in prank calls. Exploitation of trust and naivety is more or less the basis of all pranks. Everyone feels silly when they are fooled. But I can find no evidence that there are more suicides on April Fool’s Day than any other in the year. And that is because nearly everyone are able to process and understand pranks for what they are, childish amusements that mean nothing. Sure they are not most laudatory aspects of human civilization, but they do very little harm and I think you would be hard-pressed to back up your dramatic claims of permanent psychological harm being inflicted by the occasional prank. Your call for the banning of prank calls is just a symptom of the contemporary obsession of thinking that for every tragedy there must be someone to blame and some public policy outcome to make sure it never happens again.

    Conversely, if self-harm were to come to anyone currently under fire for their role in this scandal, would you be getting on your soapbox and blaming yourself for being part of the pontificating elites tut-tutting 2Day FM and (directly or indirectly) putting these two under enormous pressure for an outcome they couldn’t possibly have predicted? Would you be calling for a ban of media criticism in this case, citing the same scarcely relevant statistics on rates of mental health disorder?

    Although I understand and appreciate the great outpouring of sympathy for the victim in this case, and perspective’s like yours are well-meaning and ardently argued, it seems to me that too many people are looking for a grand meaning that just isn’t there.

  2. Mark, I agree with you in relation to the type of prank calls at issue in this case. There is nothing anyone can say that will alter the fact that being duped into believing that two Australian radio DJs were the Queen and Prince Phillip was always going to cause the victim huge embarrassment and shame, with potential disciplinary consequences from her employer. All of this – if not the further tragic result – was reasonably foreseeable.

    However, to say that all prank calls should be banned is, in my view, an extreme and unjustified reaction.

    When Melbourne comedian Dave O’Neill was on breakfast radio a few years back, he was a fine proponent of what I would describe as a ‘kinder, gentler’ form of prank call. In one series, listeners would nominate a band, and O’Neill would call a business and enquire about their products and services, while slipping as many of the band’s song titles into the conversation as possible before the other party twigged and/or hung up.

    The results were usually surreal, and often hilarious (and this is coming from someone who normally finds on-air prank calls painfully cringe-worthy). On one memorable occasion, the nominated band was Coldplay. Claiming that the only Coldplay song he knew was ‘Yellow’, O’Neill rang a local greengrocer to enquire (as it happened) about the colour of various fruits and vegetables available for sale!

    Partly due to O’Neill’s manner (he comes across as not having a malicious bone in his body) these were genuinely victimless pranks. Without the element of escalation that accompanies so many prank calls, the recipients were, at worst, bemused by the bizarre enquiries. Far from being victims, the local businesses who received these calls were rewarded with a free plug on the radio.

    To advocate a complete halt to any form of prank call simply ignores the fact that the genre is not completely devoid of merit. Indeed, there may be examples of prank calls that rise almost to the level of art, and their potential as genuine political satire is proven by examples such as the impersonators of Canadian Prime Minister Jean Chretien, who got through to Queen Elizabeth.

    A prank call does not have to escalate the recipient’s levels of anxiety or agitation, and the laugh does not have to be at their expense. Public figures, in particular, may well be fair game for certain types of prank call. When done well, and with appropriate respect for those involved, prank calls are a perfectly legitmate form of humour, satire and entertainment.

    • Hi Mark. Thanks for the insight and the example of more moderate – or even positive – prank calls. I am certainly not calling for a legislative ban on the practice. There are surely too many laws impacting on free expression. Instead, I would prefer it handled at a self-regulatory level, with networks deciding the possible rewards from the practice are not worth the potential risks. I also feel that in the wake of this episode it would not be surprising to see “Destroy the Joint”-style campaigns against FM stations that choose to continue it. A “Prank the Prankster” campaign might even emerge, although that could have dire repercussions. After all, one person’s prankster is another’s stalker or troll, surely? Cheers, Mark

  3. Mike Hardy

    Well stated Mark. Defenders of prank calls may regard them as part of a ‘craft’ and ‘tradition’, but yes, it’s time the practice was consigned to the bin where freak shows, the stocks, the pillory and everything else related to public humiliation wallows. Hopefully, the industry will finally see prank calls for what they are – cheap, dumb and cringeworthy – and move to rub them out. Prank calls will not be missed.
    Cheers
    Mike.

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