4C Fairness : Fairness & Contributors
Generally
When individuals or organisations consent to take part in programmes, this does not mean that they waive their rights to being treated fairly and we should normally be fair and straightforward in our dealings with contributors, unless, exceptionally, it is justified to do otherwise, e.g. where it is in the public interest (see below).
Informed onsent
Contributors should normally take part in programmes on the basis of their informed consent. Informed consent is likely to involve providing contributors with all or some of the following information, at an appropriate stage:
- what the programme is about i.e. the nature, format and subject matter of the programme;
- why the contributor is being asked to contribute and the way in which the contribution is likely to be included;
- whether their contribution will be live, pre-recorded, edited or unedited;
- where and when (if known) the programme is likely to be shown for the first time;
- an outline of the areas of questioning and the nature of other likely contributions, if it would be unfair not to give this information;
- their contractual rights and obligations e.g. whether or not they will have the right to view the programme before transmission and suggest any changes to it; and those of the programme makers and broadcaster. Where appropriate this kind of information should normally be contained within the release form or in a letter or email.
Exactly what information will be necessary to provide to contributors will depend on the circumstances of each individual case and the nature of the programme and contribution. Clearly, a contributor whose appearance is trivial or minor e.g. a brief, spontaneous vox pop on a non-sensitive subject will not expect or require anywhere near as much information as, say, an individual who has agreed to be interviewed at length to answer serious, potentially damaging allegations made against him in the programme.
Note: sometimes programmes evolve and change during the production process. In these circumstances, contributors should be made aware of material changes if it might reasonably alter their decision to take part and cause unfairness. Such changes might include the title of the programme, if this is significant, changes to the timing and location of broadcast, or changes to others that are contributing to the programme. If this is the case, programme-makers should seek advice from the legal and compliance department before re-approaching contributors.
Release Forms
Although it is not a requirement of the Code that any of the above information be provided to contributors in writing, in most cases, particularly where there is a significant contribution, programme-makers should obtain evidence of the contributor's informed consent in writing. Normally this will be in the form of a signed release form which describes the contribution and sets out the contractual rights and obligations of the parties.
In some cases, it may not be practical to obtain a signed release form and in such circumstances, evidence of informed consent should be obtained on camera i.e. that the contributor understands the nature, format and subject matter of the programme, where it will be shown and that they agree to their contribution being used. If it has only been possible to obtain evidence of consent in this way or producers anticipate this will be the case, they should seek advice immediately from the programme lawyer.
In rare cases, producers may not be able to obtain either a signed release form or have time or the ability to record consent on camera. Wherever this is the case, you must alert as soon as possible the commissioning editor and/or programme lawyer. A decision will then be made as to whether that contribution can be included in the broadcast programme.
Generally, contributors consent to being filmed and their contributions broadcast when they agree to be filmed, on the basis of the information they have been given. Release forms do not constitute the consent itself but, rather, are merely evidence of consent having been given. To avoid confusion, it may be sensible to ask contributors to sign their release forms before filming takes place.
From time to time contributors may seek to place conditions on their contribution e.g. the interview can only be used within one specific programme; cannot be shown in a particular country, etc.. Programme-makers must be careful not to agree to any conditions they or the broadcaster may have difficulty honouring.
If a contributor places any condition on his/her contribution, which could have a material bearing on the content of the programme or its distribution or sale, this must be referred to the commissioning editor and/or programme lawyer for approval, before being agreed to.
Programme-makers must never offer or give any editorial control to a contributor or any third party.
Where a contribution is significant i.e. endures over a period of time or is likely to infringe the rights of the individual e.g. privacy rights in reality television show formats, it will normally be necessary to agree with the contributor, before filming begins, the nature of the programme and contribution, the parameters of filming and broadcast and the detail of all other contractual rights and obligations of the parties, in the form of a detailed contributor agreement letter.
Consent & Children and Young People
If a contributor is under 16 years of age, programme-makers should normally obtain not only the consent of the child or young person, but also the consent of their parents.
Where parents are estranged or divorced, it will normally suffice to obtain the consent of the natural parent with custody, depending on the circumstances of the individual case. However, in such circumstances, advice must always be sought from the programme lawyer.
If a child's or young person's parents are dead or are not involved in the upbringing of the child, consent should be sought from the adult with legal responsibility for the child's welfare.
Even where a young person has reached 16 but not yet reached adulthood i.e. 18,
it may still be appropriate to seek parental consent, depending on the particular circumstances of the young person in question and the nature of the programme and contribution. Depending on the circumstances, advice from your programme lawyer may be appropriate.
If a child/young person is a ward of court or there is any social services involvement, programme-makers should refer immediately to their programme lawyer for advice.
[See also 'The Involvement of People Under 18 In Programmes Generally' within Chapter 4D Privacy.]
Consent & Vulnerable Adults
In the case of people over 16 who are unable themselves to give informed consent e.g. because of disability, consent should be given on their behalf by the adult who has primary care and responsibility for that person. In particular, such individuals should not be asked about matters likely to be beyond their capacity or likely to put them at risk without such consent. It may be necessary to consult with the vulnerable adult's professional adviser, e.g. GP or psychotherapist.
Fair Editing
Where a programme is edited, contributions should be edited fairly i.e. they should not be edited in such a way that misrepresents what the contributor actually said or did, including by omission.
Requests for Anonymity
A contributor may agree to take part in a programme on the condition that his/her identity is not revealed. It is important for the producers to have a clear agreement with the contributor(s) about how they will appear and the level of disguise required. For example, one contributor may be happy simply for his name not to be given and his face not to be shown, whilst another may require her image and voice to be changed to such an extent that she would be totally unidentifiable, even to close family members.
Some contributors may not be clear about what level of disguise is necessary to ensure their identity is protected. Where this is the case and to avoid any misunderstanding, producers should assess the particular circumstances of the case before deciding what level of disguise is appropriate to protect the identity of the contributor. This should then be carefully explained to the individual so they fully understand and agree how they will appear in the programme and the level to which their identity will be protected. If possible discuss this on camera with the contributor and even show them how they will appear.
A person's identity may be revealed just as easily by what they (or others) say, as by how they look or sound, so it is vitally important that the final programme as a whole achieves the required level of anonymity that has been agreed with the contributor. It may be necessary to edit out certain bits of information i.e. things said by the contributor or others, that inadvertently identify the contributor either on their own or when different bits of information are pieced together (jigsaw identification).
Honouring Guarantees
Guarantees that are given to contributors e.g. relating to programme content, confidentiality or anonymity should normally be honoured. Any deviation should be justified by the public interest or otherwise. Where conditions or guarantees have been stipulated, programme-makers should be clear about exactly what the contributor expects e.g. if a contributor asks for anonymity, do they expect total anonymity i.e. so they are not even recognisable by those that know them well, or simply a disguise that would prevent the wider viewing public from recognising them? Are they concerned about their real voice being heard, for example? It should not be assumed that contributors understand such techniques or how the television production process works. Best practice is to discuss and agree the specifics of this with the contributor on camera and show them an example of how they would appear, if possible.
Deception & Set-Ups
Factual Programmes
There may be rare occasions in factual programme-making where there is justification for being less than totally honest and upfront with contributors. However, this is only likely to be acceptable where it is in the public interest (see 'Public Interest' within Chapter 4D ) and the material could not reasonably have been obtained through other means.
As a general rule, the minimum amount of deception should be employed in order to achieve the programme's goals i.e. the deception should be proportionate in all the circumstances. Programme-makers must seek advice and approval from their commissioning editor and programme lawyer before undertaking any such activity. See also ‘Surreptitious or Secret Filming' within Chapter 4D, Privacy .
Entertainment Programmes
Many entertainment programmes involve some sort of deceit or 'set-up' situation, where members of the public or celebrities are filmed without their knowledge e.g. ‘candid camera' type stunts, or are filmed for a purpose different to that which they agreed to. In many cases, there will not be any public interest in broadcasting the footage. For this reason, full consent should generally be obtained from the individual or organisation deceived, before the material is broadcast i.e. the material may be filmed but cannot be broadcast without the informed consent of the subject.
Consider the effect of the stunt in advance to determine if the individual's family, partner or friend should be consulted beforehand in order to consider any unforeseen circumstances or to assess the risks associated with filming. [For celebrities/people in the public eye, see below].
Note: in both factual and entertainment programmes, if the person or organisation deceived is not identifiable, it will not normally be necessary to obtain their consent before broadcast.
Ordinary Members of the Public -v- Celebrities
The Code sensibly makes a distinction between ordinary members of the public and celebrities/people in the public eye. In relation to members of the public, broadcasters must obtain the full, informed consent of the person filmed before the footage can be broadcast (unless, of course, there is some public interest justification in broadcasting the material). However, with celebrities and people in the public eye, footage of them can be broadcast without consent and without any public interest justification provided they have not been secretly filmed and as long as the filming is unlikely to result in "unjustified public ridicule" or "personal distress".
Example. There may be no significant public interest in broadcasting an entertaining sequence showing a particular celebrity who has consented to being filmed but is unaware that they are being duped into endorsing some patently absurd, fictional, charitable cause. The sequence may make the celebrity look naïve, even stupid but so long as broadcasting the footage is unlikely to result in "unjustified public ridicule" or "personal distress" for the celebrity concerned, the footage can be shown. Any "public ridicule" might be justified on the basis that the celebrity in question should have known better. As to what might constitute "personal distress", this means something over and above mere annoyance or upset.
If the person duped was an ordinary member of the public, however, the footage could not be shown without full consent or a public interest justification, regardless of whether the subject of filming should have known better or the likely effect on the subject of broadcasting the material in question.