By Alli Peacock.
Kyle Sandilands’ blunt and egotistical attitude has, once again, got him into trouble and it seems the final straw has been drawn. Whilst conducting a recent ‘2DAY FM’s Kyle & Jackie O Show’, his comments about a female journalist were deeply derogatory and offensive, and amounted to a breach of the Commercial Radio Codes of Practice 2011 (the Code), based on the Australian Communication and Media Authority (ACMA) rulings. The ACMA has begun formal steps to impose a second licence condition on broadcaster 2DAY FM Sydney which purports to prohibit any demeaning content about women or girls. ACMA seeks to rely on specific content found in a segment broadcast on the Kyle & Jackie O Show on 22 November 2011.
Although 2DAY FM have taken some precautionary action through implementation of specific preventative measures placed on Sandilands, ACMA contends the imposition of a licence condition is necessary in the circumstances. This will ensure continuous compliance with the relevant provisions from the parent company and ACMA licence holder Today FM Sydney Pty Ltd.
Who is ACMA?
The Australian Communication and Media Authority (ACMA) is a government agency responsible for the regulation of broadcasting, the internet, radio communications and telecommunications. In relation to broadcasting, their duties include:
• planning the radiofrequency spectrum that radio and television services use
• issuing and renewing licences to broadcasters
• administering commercial ownership and control rules to maintain media diversity regulating broadcasting content, developing program standards or licence conditions on specific issues
• supporting the development of codes of practice for the industry to ensure community safeguards
In this role, they created and prescribed the Commercial Radio Codes of Practice 2011 so that broadcasting licensees and public are aware of what standards of content are required when broadcasting.
More information can be found on ACMA on their website by clicking here.
Breach of Contract – Commercial Radio Codes of Practice 2011
Firstly, 2DAY FM was found to breach provisions enacted by the legislative body; Since 2DAY FM radio station is vicariously liable for Mr. Sandilands, they ultimately face the consequences for any breach by him of the Code enforced by ACMA.
Prior to conducting the radio show, Sandilands would have entered into a contractual agreement (employment of otherwise) with 2DAY FM radio outlining any necessary legislative regulations relating to broadcasting. This should include compliance with the Commercial Radio Codes of Practice 2011 or spell out what those obligations are specifically in his contract. As a precautionary action, 2DAY FM should force all employees to read this code and understand all necessary requirements needed, especially those broadcasting to the public as a radio-show host. Assuming Sandilands had some prior knowledge regarding derogatory comments, especially since this is not the first time, it may be presumed that he was aware they would spark controversy and potentially breach the code. However, since Sandilands has a reputation for controversial conduct, 2DAY FM should have placed more stringent restrictions regarding content he broadcast on the show. Furthermore, 2DAY FM would be aware of the legal consequences surrounding the broadcast of demeaning content.
As a disciplinary action for contravention of the code, ACMA intends to impose an additional broadcasting condition, under licence number 3032, held by Today FM Sydney Pty Ltd (the licensee). Effectively this condition purports to expressly prohibit 2DAY FM from broadcasting content provided by radio show hosts regarding derogatory comments about women and girls. “Under subsection 43(1) of the Broadcasting Services Act 1992, the Australian Communications and Media Authority hereby give notice proposing the following conditions;
1. The Licensee must comply with clause 1.3(a) of the Commercial Radio Australia Codes of Practice and Guidelines 2011, or any provision dealing with the same subject matter in any replacement code.
2. Without limiting paragraph 1, the Licensee must not broadcast material that demeans or is reasonably likely to demean:
a. women or girls generally; and/or
b. any woman or girl in particular.
3. Without limiting paragraphs 1 and 2 above, when referring to women or girls generally or any woman or girl in particular in broadcast material, the Licensee must not place undue emphasis on gender, use overt sexual references in relation to a woman’s physical characteristics and/or condone or incite violence against women.
4. The Licensee must:
a. develop and implement a program to train staff in relation to the obligations contained in this condition which must be provided to all employees and contractors who are involved in the presentation or preparation of programs.
b. deliver the training to all relevant employees and contractors no later than 45 days after this licence condition comes into effect.
c. provide written evidence on the delivery of the training to the Australian Communications and Media Authority no later than 60 days after this condition comes into effect.
5. The Licensee’s obligations in paragraphs 1, 2 and 3 cease to have effect five years after the day when this licence condition comes into effect.”
Whilst contravention of the licence does not itself give ACMA the right to ‘fine’ 2DAY FM, they may take other disciplinary actions under the Code, including;
• Give a remedial direction;
• Impose a further additional condition;
• Accept an enforceable undertaking; or
• Suspend or cancel the licence.
Therefore, if 2DAY FM wish to continue business they should implement internal controls to ensure that content broadcasted complies with all necessary licence conditions. Failure to comply may result in suspension or cancellation of their licence to broadcast, not to mention harm to reputation and listeners.
This is very healthy and encouraging use of ACMA’s authority. In a time when broadcasting to the public is as easy as sending a text message, ACMA’s role should be more active and it’s authority stronger than ever before.
This blog is for discussion purposes only. This must not be considered legal advice.
For legal advice on this topic and references to any information in this article, please contact
Matt Burgess, Director:
Phone: +61 405 722 739
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