Proceedings being heard in the NSW Supreme Court against Channel Nine, A Current Affair reporter Ben Fordham and producer Andrew Byrne, who are charged with breaching the Listening Devices Act, could have serious implications for radio shows that use prank calls as a programming element.

The case involves a story on ACA in May 2008 for which Fordham and Byrne are accused of illegally making secret recordings of former Waverley mayor James Markham who was allegedly planning to order a ‘hit’ on a male prostitute.

Prosecutor John Pickering told the court, “The Crown case will be that Ben Fordham had no lawful interest in involving himself in this matter to record conversations with James Markham. The Crown case will be that the intention of Mr Fordham was to create a good story.”

The case, if proven, could sound the death knell for radio ‘prank’ or ‘gotcha’ calls where the ‘victim’ is recorded or put to air without their knowledge.

Even if they subsequently agree to have the recording broadcast, the mere act of making a recording without their knowledge in the first place could constitute an offence.