Legal advice will cost you, but the moral compass is free

Since 2DayFM broadcast that infamous prank call, I’ve been asked and been asking myself why the lawyers and internal compliance teams would have allowed that call to air.

In 1999 Sydney talk radio station 2GB asked me if I would be the panel operator for the controversial presenter Ron Casey whom they had recently hired. Not too long before this, Ron Casey had been censured by the Australian Broadcasting Tribunal (ABT) for making incredibly racist comments on his prior radio station 2KY about Chinese and Japanese people.

The panel operator’s job is to press all the buttons for the live talk radio show to work, leaving the presenter free to broadcast and take calls from the public. It was then a mechanical job and not one that required editorial judgement. In itself, once you learnt the buttons and understood the dynamics of the program it was an intensive but not too taxing job.

2GB’s program manager had in front of mind a suggestion from the ABT that if comments as vile as Ron Casey had made at 2KY were aired on 2GB then the station’s management, as well as Ron Casey, would be investigated. It made sense to hire a panel operator with some legal skills and who could make snap decisions to dump content inappropriate to broadcast.

I was interested,  but given the editorial judgement required, I asked if I’d be included on the station’s insurance – just in case. Instead, 2GB gave the role to someone else already working at the station. Mr Casey was taken off air in May 2000 by 2GB management for making racist comments against indigenous Australians. He retired soon after this.

Had I the job, I could have made the wrong decision and put offensive comments to air that I should have dumped, but I always found it odd that management went with an untrained person when knowing the risks with that particular program.

With that personal background, I was struck by Mr Rhys Holleran’s statement to the press about the nurse prank call, as CEO of 2DayFM’s corporate parent he said “[it’s] a tragic event that could not have reasonably been foreseen … we are confident we haven’t done anything illegal.” I’ll leave it to the ACMA investigations to determine whether or not that is true. The statement surely was written by a lawyer, for who else speaks like that in real life?

Yet as the law tries to remain dispassionate, the call may have been legal, it ignores the role of the ideas of decency, invasion of privacy and respect. These are things which are incredibly difficult to legislate for though perhaps possible to write in codes of conduct with broad brush strokes, but in the absence of any corporate culture to embrace decency it’s all a pointless exercise to try to do anything beyond chase ratings.

Pragmatically, encouraging people to buy the product is what the commercial media must do to survive – it’s all about the ratings. If we expect that as the starting point (or even the finishing point) then the lawyer’s role can be two fold.

First the lawyer can advise and let program producers know what the boundaries are, what the consequences are for breaching the boundaries and leave it to the producers to work out the risk calculation of broadcasting any material which may overstep the mark. Lawyers are not the best judge of content suitability, in terms of what an audience wants to see, hear and watch so it’s best that the system works like this – lawyers should not start to become censors. This will certainly explain why no lawyer ever gets fired for major editorial screw ups.

The alternative, and I argue necessary additional course, is for the lawyer to persuade producers, in the rare borderline cases involving taste, moral and decency issues that what the producers are doing is wrong, even though legal. The lawyer could be a company’s ethical and moral compass. The lawyer should be sufficiently removed from the agenda to objectively and fearlessly comment on these issues even if only as the ‘devil’s advocate’ to sense check these situations and cause everybody to pause for thought before proceeding.

This idea needs to be taken with a pinch of salt, and a lawyer by no means should be the sole arbiter of taste and censorship in these circumstances any more than the business should simply defer to legal as a boxed ticked for approval. A lawyer’s training involves looking at moral and ethical issues in a societal context. A lawyer with a broad perspective on the industry, society and the law can really bring something to the table to discuss.

Ultimately a lawyer may lose the debate and the program proceed and if that happens, it’s a cynical producer who offers “it was cleared by the lawyers” as a defence to public outrage and offence. I get why Mr Holleran said what he did, it preserves the company’s legal position, but the undertone is that because it was legally cleared, then all of it – including invading a young woman’s privacy for medical details, was acceptable. It may have been legal, but it was not acceptable and conflating the two concepts of legal and decency is unhelpful.

Cases of poor editorial judgement might be avoided by listening to all the voices around the table at a media company, including the lawyers, who should offer wider input than strict legal advice and sometimes simply suggest that everyone takes a breath.

Published by Brett

Brett is an experienced lawyer and business executive who focuses on commercial outcomes. He has worked across three sectors in England & Australia advising and leading initiatives in digital, media and technology

One thought on “Legal advice will cost you, but the moral compass is free

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s