Crank calls and causation: the Australian DJ debacle

Headlines continue to be generated about the death of the nurse at the hospital where the Duchess of Cambridge stayed recently.  Inevitably, some have suggested legal sanctions should be imposed upon  the radio station responsible and some have even gone as far as to call for criminal proceedings.  As regrettable and in poor taste as the whole episode might have been, calls for the law to be involved are misplaced.

To recap the facts shortly, the two DJs phoned the hospital and posed as members of the Royal family.  They asked for information on the Duchess and were put through by the nurse on switchboard to the ward, where they were given a short rundown on her progress.  They broadcast the details on their show which was quickly replayed around the world and advertised on their twitter account. 

The DJs were stunned that they managed to get as far as they did, mostly because by their own admission their accents were a hopeless imitation.  Perhaps this was because the woman who answered the call initially was not actually British or Australian, but rather had been raised in India. She would therefore have been less able to spot imitation accents and perhaps was also not so well versed on a rather lame form of Anglo-Saxon humour.  

Pausing there, my first observation is that the hospital was at fault for not having some protocol in place to protect their high profile patients. 

Secondly, and contrary to some Australian media reaction I read soon after the event, no objection to the call was based on anyone being precious about the Royal family as such.  Anyone who has lived in Britain for any length of time would know that ribbing Royals is a long tradition in this country.  They are sent up, scorned and sometimes outright abused in any number of newspapers and other publications here on a regular basis. 

Rather, the objection was that a patient's private medical information was broadcast without the patient's consent.  The objection would have been identical whomever it concerned.  The fact that the information was fairly bland is not the point.  For that reason, the DJs' actions were unethical.  In Britain the Duchess might have had an actionable case based on the tort of breach of privacy, had she been bothered to sue (which I suspect is unlikely).  As I have written on many occasions, however, in the internet age the right to privacy is at the mercy of any international audience which obtains the information - Australia is, needless to say, not within the jurisdiction of the British courts, though information broadcast there can easily be obtained here. 

The whole event would have swiftly disappeared from the headlines but for the tragic outcome of the nurse committing suicide in the aftermath.  Here the concept of causation comes into play.  It may be true that the suicide followed the actions of the DJs and would not have happened without them.  But that does not make them responsible.  It would have to be a reasonably foreseeable consequence of their actions - and the simple fact is that it was not reasonably foreseeable.  It was a wholly exceptional result.  There is always a natural urge to blame someone when a tragic event occurs.  But sometimes blame cannot be found - or certainly not found in sufficient measure from criminal liability to follow. And that is indisputably the case here.