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In this image from a Dec. 10 video of the “A Current Affair” program in Australia, radio DJs Michael Christian, left, and Mel Greig talk about their prank call to get information about the Duchess of Cambridge’s medical condition. (THE ASSOCIATED PRESS)
The Court of Public Opinion, modern society’s answer to the “ducking stool,” has roundly condemned an Australian radio team’s prank call to Duchess of Cambridge Kate Middleton’s hospital earlier this month which, that particular court concludes, led to the suicide of the nurse who took the call.
The radio show has been taken off the air, and there have been calls for everything from laws to prohibit prank calls in general to criminal prosecution of the two disc jockeys involved.
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“Embarrassment is an emotional state of intense discomfort with oneself …” - Wikipedia, “Embarrassment” entry |
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During my private practice as a lawyer, I had the pleasure of representing several on-air broadcast personalities, including now-retired TJ Trout who owned the morning airwaves in New Mexico for a years. His prank calls were both a local institution and often much more embarrassing for recipients than getting phone access to the duchess’ hospital room. Nothing remotely approaching the recent tragedy in England occurred, but let’s explore how New Mexico law might treat a prank call gone wrong.
There is much speculation and little evidence of a causal relationship between the call and the suicide, but no one seems to assert there was any actual intent to cause harm. Accordingly, it seems that the crime of manslaughter or a civil action for damages from infliction of emotional distress are the most likely legal theories. The Criminal Code defines involuntary manslaughter as “the unlawful killing of a human being without malice” while involved in the commission of a lawful act which might produce death, without due caution or circumspection. No matter how strongly one might condemn prank calls, it is unlikely they can be honestly characterized as ordinarily having any potential to cause death.
Further, in context of modern entertainment, misleading a nurse into divulging patient information by pretending to be the queen of England would probably not qualify as lacking “due caution or circumspection.” It was intended as a joke and initially even the royal family took it as such.
There are often parallels between criminal and civil law. On the civil law side of the courthouse, New Mexico does not recognize a cause of action for negligent infliction of emotional distress but does allow recovery of damages for intentional infliction of emotional distress. To recover damages on such a claim, the plaintiff must prove the defendant’s conduct was extreme and outrageous and was committed with intent to cause damage or, at least, a reckless disregard of the potential to cause damage. Extreme and outrageous conduct is, in turn, defined as “that which goes beyond bounds of common decency and is atrocious and intolerable to the ordinary person.” One quick spin through the radio dial or TV remote should convince even the most adamant opponent that most people consider prank calls as entertainment, rather than atrocious and intolerable and beyond bounds of common decency.
Both criminal and civil law require there be a causal connection between the alleged wrongful act and the consequences complained of. This is called proximate cause. Issues of causation can present thorny legal problems in some cases but, in simple terms, present the question of whether there was any reasonably foreseeable connection between the wrongful conduct and the unfortunate result.
There can be no debate that the nurse’s suicide is a tragedy. But can a society that thrives on reality TV, YouTube and Facebook honestly complain about what actual transcripts show was a pretty mild prank call? Would a jury likely determine that the Australian broadcasters were extreme, outrageous and beyond all bounds of decency, or that they should have anticipated their call would provoke a woman’s suicide under the circumstances? Are the broadcasters to blame for giving the people what we indisputably want? It’s unlikely that a case like this will be coming to a courthouse near you anytime soon, but you can still “Judge for Yourself.”
Alan M. Malott is a judge of the 2nd Judicial District Court. Before joining the court, he practiced law throughout New Mexico for 30 years and was a nationally certified civil trial specialist. If you have questions, send them to Judge Malott, P.O. Box 8305, Albuquerque, NM 87198 or email to: alan@malottlaw.com. Opinions expressed here are solely those of Judge Malott individually and not those of the court.
