Australia: ACMA's Ruling on Kyle Sandilands – Toothless Tiger or the Kitten Who Roared?

Last Updated: 25 April 2012
Article by Justine Munsie

Last week, the Chairman of the Australian Communications and Media Authority (ACMA), Chris Chapman, took the unusual step of holding a press conference to announce the findings of the ACMA's investigation into complaints made about on air comments broadcast by Kyle Sandilands on 2DayFM in November 2011. The ACMA found that the licensee of 2DayFM had breached clause 1.3(c) of the Commercial Radio Codes of Conduct which requires the licensee not to broadcast content which would offend generally accepted standards of decency. The ACMA found that Sandilands' comments about a female journalist, including calling her a "fat slag" and saying "watch your mouth or I'll hunt you down" were deeply derogatory, offensive and out of line with community standards. However, the ACMA investigation found that the comments did not breach other provisions of the code relating to inciting contempt or serious ridicule on the grounds of gender, or inciting violence.

The ACMA has now commenced formal steps to impose an additional licence condition on 2DayFM which will require the licensee not to broadcast content that demeans women or girls and not to 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. These obligations are proposed to remain in effect for five years. 2DayFM must also develop and implement a training program in relation to the obligations, to be delivered to all relevant employees within 45 days.

The ACMA's proposed remedial action is in addition to apologies already made by 2DayFM and Sandilands for his conduct and changes made at the radio station in response to the fall out from his remarks. These include the station broadcasting on a 30 second delay (unheard of for FM radio networks in Australia), education programs and the introduction of a "warning light" system to alert staff to problematic content.

There has been both criticism and concern that the ACMA has not gone far enough in punishing Sandilands and 2DayFM over this incident and that the ACMA has shown itself to be no more than a "toothless tiger" in controlling Australia's commercial broadcasters. Such criticism risks overlooking both the extent of the ACMA's powers and the practical effect of the conditions it now proposes.

All commercial radio stations operate under licences issued by the ACMA which include obligations to comply with the Codes of Conduct which have been developed by the stations and reviewed and approved by the ACMA. Amongst other things, the Codes deal with programs unsuitable for broadcast, taste and decency, accuracy and fairness in news and current affairs, advertising, Australian music, interviews and talkback programs, live hosted entertainment programs, compliance with the Codes, broadcasts of emergency information and a formal complaints handling process.

Any listener who believes that a commercial radio program has breached the Codes is able to complain to the relevant station. The complaint can then be referred to the ACMA if the complainant does not receive a response from the station or if they believe that the response is inadequate. The ACMA must then investigate the complaint and if it finds that there has been a breach of the Codes, it can determine appropriate remedial action, including by imposing an additional licence conditions on the licensee. If the licensee breaches a licence condition, the ACMA may then give a remedial direction, accept an enforceable undertaking or suspend or cancel the licence. The ACMA has no power to impose fines and deals only with licensees (in this case, Southern Cross Austereo) not individual announcers such as Sandilands.

The additional licence condition and the other remedial action proposed against 2DayFM constitute far reaching obligations on the licensee, which the station has described as onerous, disproportionate with the breach finding, and something warranting review or appeal. The effect of the condition is that for five years the station will need continually to monitor, train and control, not only Kyle Sandilands, but any person who broadcasts matter over its radio station (including any guests and other callers to the radio station) or else risk ultimately losing its broadcasting licence altogether. The significant implementation and ongoing compliance costs to be incurred with observing the proposed condition, combined with a ratings decline for the Kyle and Jackie program and the reported loss of $10million in advertising sponsorship following the making of the original comments by Sandilands last year, suggest that the commercial consequences of Sandilands' remarks will be felt more keenly than any fine or any other remedy which might be imposed by a regulator said to have more or sharper "teeth". While some people will be dissatisfied that Sandilands remains on air at all, the cost of his peculiar style of entertainment may soon start to challenge the value which he is said to bring to the station. In that case, the ACMA may have in fact just made a very significant contribution to improving commercial radio standards in Australia.

The assistance of Mary Huang, graduate, of Addisons in the preparation of this article is noted and greatly appreciated

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Justine Munsie
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