Updated: March 2023
This producers privacy document lays out the privacy code on conduct displayed by Broadcast 360 Ltd, its group of companies and partner companies (including freelancers) that are contracted to work alongside Broadcast 360 Ltd. The basis of this privacy document follows OFCOM rules and are subject to change in alight with OFCOM changes. Broadcast 360 Ltd, as a UK based company follow OFCOM rules, no matter where the production is worldwide, however will also alight to local laws for both production and broadcast.
- Any infringement of privacy in programmes, or in connection with obtaining material, must be warranted e.g. by consent, or that it’s in the public interest.
- Consent. Most filming (and broadcast) involves an infringement of privacy and, therefore, should normally be done with consent. Even when filming in public places, individuals may have a reasonable expectation of privacy.
- Suffering and distress. When reporting on emergencies, accidents or personal tragedy, the public interest in reporting and right to freedom of expression must be balanced with the need to be compassionate and the privacy of those involved.
- 'Doorstepping' or interviews without prior arrangement should not take place unless an interview has been refused, it has not been possible to request an interview or it's likely that contacting the subject will frustrate the purpose of the programme.
- Secret filming and recordings. All secret filming and recording (except for entertainment purposes) must comply with the Code and be justifiable by the public interest.
- Secret filming for entertainment purposes where there is no public interest should only be undertaken where it is editorially justified and does not amount to a significant infringement of privacy such as to cause annoyance, distress or embarrassment. Informed consent must be given by those filmed before material can be broadcast.
- Revealing private information without consent is likely to infringe privacy and is only likely to be justifiable if the public interest in revealing the information 'outweighs' the privacy infringement.
- Producers must pay particular regard to the privacy of people under 16. Those under 16 do not lose their right to privacy because of the fame or notoriety of their parents.
THE CODE CONTAINS THE FOLLOWING RULE:
"Any infringement of privacy in programmes, or in connection with obtaining material included in programmes, must be warranted"
Accordingly, the production must be able to demonstrate why any infringement of privacy is justified. In most cases, such justification will either be that the individual has consented or that the public interest outweighs the privacy infringement.
FAIRNESS AND PRIVACY COMPLAINTS
Any individual (or organisation) who considers him/herself to have been the subject of unjust or unfair treatment or an unwarranted infringement of privacy may make a written 'fairness' and/or ‘privacy' complaint to Ofcom after a programme's broadcast.
Defending these complaints is time-consuming and may involve disclosure to Ofcom of rushes, correspondence, emails and notes as well as preparation of a detailed response to all the points raised by a complainant. This will require cooperation between the broadcaster and programme-makers. Broadcast 360 Ltd will undertake to comply with this.
If Ofcom entertains a complaint of unfair treatment and/or an unwarranted invasion of privacy, the producer will be given the opportunity to make written submissions in relation to the complaint. Ofcom then comes to a "preliminary view" on which both the complainant and the broadcaster are given an opportunity to make further written submissions. At this stage, Ofcom may decide to hold a hearing (but rarely does), for example if there is a significant dispute of fact between the parties. Ofcom then makes its final decision. If there is a hearing then at least one of the programme-makers will be expected to attend with the broadcasters' representatives.
Ofcom will normally publish its final adjudication on its website and, especially where a fairness complaint is upheld, it is also likely to direct the broadcaster to transmit on air and/or publish a summary of its Adjudication. In the case of a serious breach, a statutory sanction may be considered and imposed. The imposition of a sanction and the adverse press that it creates damages the reputation of both the broadcaster and the programme-makers.
Most contributors take part in programmes on the basis of their informed consent. Often, as part of that consent, contributors agree to their privacy being infringed in some way, for example when they agree to have a camera pointed at them, allow cameras into their homes or, in the case of some reality shows, agree to be filmed 24 hours a day.
However, in many cases, individuals will not have consented to any infringement of their privacy and, in some cases, may vigorously oppose it, for example where individuals are secretly filmed or recorded [see 'Surreptitious or Secret Filming'] and are exposed doing some criminal or antisocial act; or, in relation to programmes that delve into individuals' private lives and reveal information of a private nature (see 'Revealing Private Information'). In such cases where there is an infringement of privacy but no consent, the filming and broadcasting of such material should be justified by the public interest. Similarly, any decision to withhold information from contributors or to act other than in a totally honest and upfront way should be justified by the public interest. See 'Deception and Set-Ups'.
Note: some contributors may consent to take part in programmes but place conditions on their contribution, for example they wish to remain anonymous. It is important that producers do not agree to conditions that they or the broadcaster may have difficulty in complying with. In addition, where conditions in relation to a contribution are agreed to, it is vitally important that all parties are clear about the exact nature of the condition.
For Branded content, brands may be given the opportunity to ‘fact check’ prior to broadcast, if agreed prior with the producers. However, the director and the producers have the ‘final say’ on the creative output, in accordance to OFCOM rules.
If the broadcast of a television programme is said to be "in the public interest" it means that it serves beneficially the well-being or interests of the public or society generally. There is no exhaustive definition of what constitutes the public interest, but it is generally accepted to include the following:
- Exposing or detecting crime, corruption, antisocial behaviour or injustice;
- Exposing lies, hypocrisy or misleading claims made by individuals or organisations;
- Protecting public health or safety;
- Disclosing incompetence, negligence or dereliction of duty, that affects others;
- Exposing dangerous or exploitative behaviour that could harm others.
Any act that relies for its justification on the public interest should be proportionate to the interest served - that is in relation to privacy, the more significant the infringement, the greater the public interest will need to be in order to justify it.
Privacy issues (as with issues of fairness) can roughly be divided into those relating to individuals or organisations actually taking part or featured in programmes - "contributors"; and those not taking part but who are otherwise referred to - "non-contributors".
PRIVACY & CONTRIBUTORS
The extent to which contributors waive their rights to privacy when consenting to take part in programmes clearly depends on the nature of the contribution. However, it should always be made clear to potential contributors before they agree to take part the extent to which filming will or is likely to infringe upon their privacy.
WHEN IS EXPLICIT CONSENT NECESSARY?
As noted above, contributors should normally take part in programmes on the basis of their informed consent and, in most cases, should sign a release form evidencing their consent. However, there will be situations, particularly when shooting on location, where individuals other than the main contributors will inadvertently be caught on camera. The question then arises whether or not there is an obligation to seek the explicit consent of those filmed, as an individual's privacy could be infringed by being filmed in certain circumstances and broadcasting that footage may be a further and separate infringement. This will generally depend on a number of factors including: the location where the filming takes place; the nature of what is caught on camera, that is the actions, behaviour or words that are recorded; and, sometimes, who the individual concerned is, for example whether they're a member of the public or someone in the public eye.
FILMING IN PUBLIC AND SEMI-PUBLIC PLACES
When filming in public places, for example on the streets, in parks, on public highways, and semi-public places, for example shops, bars, institutions, the producers are only likely to need to obtain the express consent of those that make a significant contribution - those that the camera is following or that speak to camera, or whose words are caught on camera, unless what they say is trivial and inconsequential. Generally, the producers will not need to obtain the express consent of random people that are merely passing by or who are caught on camera in the background, unless they are to be shown in a negative or pejorative context, thereby requiring consent or the concealing of identities, for example by pixilation.
However, there will be circumstances where individuals, even in public places, have a legitimate expectation of privacy, for example when they are in distress or receiving medical treatment, and to film and, further, to broadcast such footage would amount to an unwarranted infringement of their privacy. In such circumstances, in the absence of any public interest justification, it is unlikely that the footage could be broadcast without the express consent of those filmed or their identity being obscured.
If an individual's or organisation's privacy is being infringed by filming and they ask that filming or recording stop, the producers should normally comply, unless it is warranted to continue, for example it is in the public interest.
When filming on private property, even where it is open to the public, for example shops, bars, shopping malls, the producers should, wherever possible, first obtain the consent of the legal owner or person in charge of the location to film there, unless there is justification for not doing so. Often consent may be granted but subject to certain conditions, for example seeking the individual consent of staff or members of the public caught on camera, which if agreed to should be honoured.
When filming on private property, if the owner or person in charge requests that filming stop, this should normally be complied with unless there is good reason not to, for example the public interest justifies continuing. Where this occurs, the producers will contact the programme lawyers as soon as possible thereafter as a trespass may have been committed.
In some semi-public places, where there is a greater expectation of privacy and particularly where people may not wish to be caught on camera, for example doctors' waiting rooms, it may be appropriate (and it may be a condition of filming there) to alert members of the public to the fact that filming is taking place, for example by erecting a sign (or making an announcement) stating that filming is taking place, explaining briefly what the programme is about and advising anyone that does not wish to be filmed to avoid the camera or alert a member of the production team.
Filming in sensitive places, for example in hospital wards, ambulances, A&Es, schools, prisons, police stations etc., (unless undercover in which case see 'Deception and Set-Ups', and 'Surreptitious or Secret Filming') is only likely to be possible after negotiation with the person or organisation in charge of the location in question. However, even where consent is granted, careful consideration must be given to the individual fairness and privacy rights of those that may be filmed. The fact that general permission to film has been given does not mean that individuals have consented to being filmed and that footage can be broadcast. Depending on the circumstances, it may be that alerting individuals or members of the public through the use of signs or announcements will suffice but, in certain circumstances, where there is a greater expectation of privacy, it may be appropriate or even essential to seek the individual consent of each and every person shown (or if that is not possible conceal their identities on broadcast).
Wherever there is an intention to film in a sensitive place or there is doubt about whether or not individual consents are required, the producers will seek early advice from the programme lawyer.
If a programme is of a sensitive nature, clearly contributors will need to be made aware of the context in which they will appear.
THE INVOLVEMENT OF UNDER 18'S
IN PROGRAMMES GENERALLY
The Code states that due care must be taken over "the physical and emotional welfare and the dignity of people under 18" who take part in or are otherwise involved in programmes, irrespective of parental or other consent and that they must not be caused "unnecessary distress or anxiety by their involvement in programmes or by the broadcast of those programmes".
In other words, just because parents may be willing to allow their child to take part in a particular programme, in a particular way, does not absolve the programme-makers and broadcaster from their responsibility to ensure that those under 18 are not put at unnecessary risk and do not suffer harm as a result of taking part in programmes.
PRIVACY OF PEOPLE UNDER 16
The producers are required to pay particular regard to the privacy of people under 16, whether they are a contributor to a programme or not. They do not lose their rights to privacy because of who their parents are, in other words the child of a very famous celebrity should be accorded the same rights to privacy as the child of an ordinary member of the public, unless the child has courted publicity or is a celebrity in his/her own right.
Unless it is warranted to proceed otherwise, parental consent must be sought where an individual under 16 is featured in a programme in a way that infringes his/her privacy. The explicit consent of the individual concerned should also be obtained where possible.
Ideally, both parents' consents should be sought for the child's contribution. However, this will not always be possible or practicable. If a young person's parents are divorced or separated, parental consent should, in the first instance, be sought from the parent the child resides with and who has ‘parental responsibility'. As to whether or not consent should be sought from the other parent as well, seek advice from the programme lawyer. Child performance licences, issued by the local authority where the child resides, may also be required. See 'Child Performance Licences'.
The same principles apply to vulnerable people- consent to film and broadcast a vulnerable person should be sought from that person's primary adult carer.
Furthermore, people under 16 should not normally be asked questions about private matters without the consent of one of their parents or guardian; or, in the case of a vulnerable person, without the consent of their primary adult carer, unless it is warranted to proceed without such consent.
PRIVACY & NON-CONTRIBUTORS
REVEALING PRIVATE INFORMATION
An individual's privacy may be infringed by revealing to a wider audience private information about them, for example details of their sex life or family life, regardless of whether or not they are filmed. For example, a divorced spouse who is talking about intimate details of his/her former marriage may be infringing the privacy of his/her former spouse - any such infringement must be warranted. Once again, in the absence of consent, any infringement of privacy must be justifiable in the public interest. The right to freedom of expression coupled with the public interest should 'outweigh' the privacy right that is being infringed.
What amounts to "private information" and whether revealing it, or repeating it, would constitute an unwarranted infringement of privacy depends on a number of factors, which normally would include: the nature of the information; whether or to what extent the information is already in the public domain and, if it is, how it got there; and whether the individual concerned is an ordinary member of the public or is a celebrity or someone in the public eye.
The Code recognises that people under investigation and those in the public eye and their immediate family and friends retain the right to a private life although private behaviour can raise issues of legitimate public interest, for example there may be an overriding public interest in exposing and exploring publicly in a television programme the private life of a politician, if that conflicts with, adversely affects or raises serious questions about his/her public life.
IN FACTUAL PROGRAMMES
'Doorstepping' means filming or recording an interview or attempted interview with someone, or announcing that a call is being filmed or recorded for broadcast, without any prior warning. Inevitably, it will involve an infringement of the privacy of the person being approached and should only be undertaken after careful thought and in the following circumstances, where:
an interview has been refused; or
it hasn't been possible to request an interview; or
there's good reason to believe that contacting the subject will frustrate the purpose of the programme; and,
in all the circumstances door stepping is justified, that is the public interest outweighs the infringement of privacy.
The producers will always seek advice from their programme lawyer before attempting to 'doorstep' anyone. Careful consideration needs to be given to exactly how the 'doorstep' should be carried out. For example, the security of the crew must be considered, as should the risk of infringing the privacy of innocent third parties, for example family members. For this reason, it will generally be preferable not to 'doorstep' people at their homes.
The above rules do not generally apply to attempts to interview or interviews with people in the news in public places, for example approaching a politician on camera outside Parliament, situations involving media scrums.
Everyone has the right not to comment. If the producers are asked to leave property by the owner or to stop questioning or telephoning, the producers should normally do so.
IN ENTERTAINMENT PROGRAMMES
In entertainment programmes, the above rules do not need to be followed. However, safeguards should be put in place in order to avoid offence and any unwarranted infringement of privacy. In addition, the material will not be able to be broadcast without the full informed consent of the individual 'door stepped' or filmed.
IDENTIFYING WHERE PEOPLE LIVE
Information which discloses the precise location of where people live, including celebrities, should not normally be revealed unless it is warranted to do so, for example they have consented, the information is already widely known, or it is in the public interest to do so.
Note: it may be possible to show the house where a particular individual lives without actually identifying where it is, that is not giving the house number or naming the street.
Similarly, care must be taken not to disclose personal e-mail addresses or telephone numbers without consent.
IDENTIFYING THIRD PARTIES
The identity of the family members or friends of those under investigation should not be revealed unless it is warranted to do so.
RE-USE OF MATERIAL
When incorporating into a programme archive footage or material which has been filmed or recorded for another programme or purpose, programme-makers must ensure that this does not result in an unwarranted infringement of privacy, or cause any unfairness.
RECORDING TELEPHONE CALLS
It is generally accepted that programme-makers may record telephone calls, without telling the person they are speaking to that the call is being recorded, for research or evidential purposes. However, if the call is being recorded with a view to it being broadcast, the following rules apply:
Recorded telephone calls may be broadcast as long as, at the start of the call, the programme-maker has identified who they are (for example given the name of the person calling, the programme and broadcaster), explained the purpose of the call and stated that the call is being recorded for possible broadcast. At this point, the person has the choice to terminate the call, so if they continue to talk, it may be assumed they have consented to the call being broadcast.
Some or all of the above information may be withheld and the recorded call still broadcast if, in all the circumstances, it is warranted, for example it's justified by the public interest (see 'Surreptitious or Secret Filming' below).
If a call has been recorded and the other party was not told because, at the time, it was not intended for broadcast but it later transpires the programme-makers do wish to broadcast it, consent should be sought from the other party unless it is warranted to broadcast the call without consent, for example it is justified by the public interest or the person is not reasonably identifiable.
SURREPTITIOUS OR SECRET FILMING
The following rules must be followed. In addition, seek advice from the programme lawyer from the earliest stage secret filming is contemplated.
All secret filming and recording (including recording telephone conversations and also where a subject does not realise that a visible camera is actually recording) must comply with section 8 of the Code and be warranted, unless it is for entertainment purposes, in which case see 'Secret Filming for Entertainment Purposes' below.
The term "secret filming" will be used for ease of reference but it is intended to cover all covert or surreptitious filming or recording.
WHAT CONSTITUTES SECRET FILMING?
Secret filming includes the following:
filming or recording material through the use of hidden cameras and microphones;
filming or recording material through cameras and/or microphones of which the subject is unaware for example using long lenses, small cameras, radio microphones, filming from across the street.
continuing to film or record when the subject of filming believes the camera/microphone is switched off or not going to be used for broadcast.
recording telephone conversations for broadcast without consent.
HOW SECRET FILMING IS USED
Secret filming is generally used in one of two ways:
in factual programmes, as a journalistic, investigative tool, exposing and evidencing issues which are in the public interest; or,
in entertainment programmes, where the secret filming is an integral part of the programme providing the comedy/entertainment for example a 'candid camera' style programme.
The act of secret filming itself is an infringement of the privacy of the individual or organisation recorded. There will be an infringement of privacy both when the filming takes place and a separate, additional infringement if and when the material is broadcast.
In the case of factual, investigative programmes, such infringements must be warranted, which generally means in the public interest. In entertainment programmes, where no public interest exists, broadcast can only go ahead with the informed consent of the individual secretly recorded.
SECRET FILMING FOR NON-ENTERTAINMENT PURPOSES
Broadcasting secretly recorded material for non-entertainment purposes is a two-stage process:
1. Before filming or recording takes place.
The programme-makers must identify who is to be secretly filmed and why.
The purpose of the secret filming should not be a 'fishing expedition', that is there should already be some evidence which suggests behaviour or actions of the proposed subject that it is in the public interest to expose or uncover by secretly filming.
There should be reasonable grounds to suspect that secretly filming will reveal further material evidence.
Secret filming should be necessary - that is the material could not reasonably be obtained through other means, for example by filming openly.
All secret filming must be approved in advance by the Broadcast 360 Ltd, unless there are exceptional circumstances. Requests should be made in reasonable time.
2. After filming or recording has taken place.
Material obtained through secret filming must be carefully evaluated. It can only be broadcast if there is an overriding public interest. Often it will be in the public interest and the material will be able to be broadcast. However, there will be occasions where, although originally carrying out the secret filming was justified, it did not reveal what was anticipated and there will be no public interest in broadcasting what was recorded. In such cases the material must be stored securely or destroyed and in accordance with the Data Protection Act 1998. See 'Legal Protection of Personal Information'.
Before any secretly filmed footage can be broadcast, this must be approved in writing in accordance with the Broadcasters internal compliance procedures. Again, requests should be made in plenty of time. The request to broadcast secretly filmed material should comply with Broadcasters 'Secret Filming Guidelines'. If the commissioning editor and programme lawyer consider that there is justification for including the secretly recorded material in the broadcast programme, the commissioning editor will submit the request to the relevant senior programming executive for approval. Programme-makers will then be informed whether or not their request has been approved and the footage can be included in the broadcast programme.
Note: the same procedures will be followed where secretly recorded material has been undertaken by others (including CCTV footage).
SECRET FILMING FOR ENTERTAINMENT PURPOSES
Secret filming for entertainment purposes, where there is no public interest, can be undertaken where it is editorially justified and it is unlikely to cause "significant annoyance, distress or embarrassment". However, it cannot be broadcast without the informed consent of the subject. If they refuse consent, the material will not be able to be broadcast.
Where a person filmed is unidentifiable, consent will not normally be required.
Care must be taken where individuals are to be secretly recorded for entertainment programmes within a live programme and safeguards must be put in place in order to avoid offence and prevent unwarranted infringements of privacy.
Where a subject who is being secretly filmed for entertainment purposes realises he/she is being secretly filmed and asks for filming to cease, this should be complied with.
SUFFERING & DISTRESS
EMERGENCIES, ACCIDENTS & PERSONAL TRAGEDY
When reporting on emergencies, accidents and/or personal tragedy or making references to such events within programmes, the public interest in full, open and accurate reporting and the right to freedom of expression must be carefully balanced with the need to be compassionate and the privacy rights of those involved, so as to avoid any unwarranted infringement of privacy or unjustified offence.
People caught up in such events, for example victims, should only be shown where there is strong editorial justification and broadcast is in the public interest, or those filmed have consented to be filmed for broadcast.
People in distress, for example victims or the grieving relatives of victims, should not be placed under any pressure to be interviewed or to be filmed. It may be appropriate to make any requests for interviews through an intermediary, for example a relative, friend or advisor.
Showing people dying, being killed or murdered, particularly the point of death, will require exceptional justification and must be justified editorially, by the public interest and, in relation to the potential effect on viewers, by the context.
Where people have died or are the victims of accident or violent crime, producers should be careful not to reveal their identity, unless and until it is clear that their next of kin have been informed. Any exception to this rule must be justified by the public interest or otherwise for example if immediate publication of the deceased's identity might help in the apprehension of a criminal.
REVISITING PAST EVENTS
When making and broadcasting programmes, including dramatizations, that concern real past events that have involved trauma to individuals, for example natural disaster, accident, human violence, crime, programme-makers and broadcasters should always carefully consider the likely impact on those involved, for example any victims or their close relatives.
Where reasonably practicable, those whose experience is to feature, or their close family, should normally be informed of the plans to make such a programme, including when it will be broadcast, even where the events or material to be broadcast are in the public domain and are widely known and where victims are not named but would be recognisable from the events.
EDITORIAL INDEPENDENCE & COMMERCIAL REFERENCES
As a commercial production company, Broadcast 360 Ltd is involved in created funded programming. Through its programme-making and broadcasting activities, producers should not, in any way, encroach upon its editorial independence and integrity. The following rules apply.
- In most circumstances, brands are able to fact check content prior to broadcast.
- The producers must retain complete editorial control over their programme content. In order to achieve this:
o Programmes must always be and appear to be editorially independent.
o Programmes should not promote or endorse a commercial product and service of others or appear to do so unless editorial relevant – See Undue Prominence and Product Placement.
PRODUCTS & SERVICES WITHIN PROGRAMMES
In today’s society, commercial brands, products and services are everywhere. Inevitably, therefore, this will be reflected within programmes and whilst there is no prohibition on including verbal and visual references to commercial products and services within programmes, in order to maintain the editorial integrity of programming, the following rules apply.
Commercial products and services can be referred to in programmes both visually and orally, but their inclusion and manner of inclusion should always be editorially justified.
A useful practical yardstick is that no impression be created of external commercial influence on the editorial process i.e. if viewers are left feeling a deal has been struct between the producers of a programme and an advertiser to promote a product or service by stealth or otherwise. It is up to the director and producers to work with brands prior to filming on what they would like to achieve and to ensure that within both filming and editing, the brand is seen as part of justified editorial content.
Generally, studio-sets should not contain ‘permanent’ items that are branded e.g. branded items of furniture or props.
Guests who are being interviewed in studio-based programmes and contributors in factual programmes should, wherever possible, be told in advance of filming not to wear prominently branded clothing.
Agreements between programme-makers and broadcasters and external companies or agencies to include or to refer to commercial products or services within programme time in return for payment or something else of value are termed “production placement” are permitted as part of the OFCOM rules as long as they are also editorially justified.
ADVERTISEMENTS WITHIN PROGRAMS
Generally, advertisements must be clearly separated from programmes. However, all types of programming including news, current affairs, factual and entertainment programmes, may contain advertisements or clips from advertisements, if there is sufficient editorial justification.
A sponsored programme (which includes advertiser supplied/funded programs) is one which has had some or all of its costs met by a ‘sponsor’ with a view to promoting itself or its products or services, or those of another. A sponsor may be any public or private undertaking, including charities (but see below for prohibited and restricted sponsors).
Sponsorship deals are now commonplace and are a legitimate way for commercial producers and broadcasters to meet the production costs and revenue for programme-making. However, to ensure that programmes remain editorially independent and that sponsors do not encroach upon the editorial integrity of the programmes they are sponsoring, the following rules apply.
CONTENT WHICH CANNOT BE SPONSORED
Only news and current affairs programming may not be sponsored. The code defines “current affairs programming” as programming which “…contains explanation and analysis of current events and issues, including material dealing with political or industrial controversy or with current public policy”.
PROBATED AND RESTRICTED SPONSORS
Programmes cannot be sponsored at all by organisations that are prohibited from advertising on television e.g. the tobacco and pornography industries as set up in the UK code of Broadcast Advertising. Alcohol is allowed as long as it is aimed at over 18 year olds.
Broadcasters and the producers must retain editorial control of all their programmes including sponsored programmes.
Sponsored programmes must be identified as such, with credits broadcast at the beginning and/or around centre breaks during the programme and/or at the end of the programme. This can be done visually, verbally or both.
Sponsorship credits must not contain advertising messages, claims about the product or service, price messages or calls to action. In particular, credits must not encourage the purchase or rental of the products or services of the sponsor or a third party.
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