4D Privacy : Privacy & Non-Contributors
Revealing Private Information
An individual's privacy may be infringed by revealing to a wider audience private information about them e.g. 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 and any infringement must be warranted. Once again, 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 e.g. 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.
'Doorstepping'
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 repeatedly; 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 doorstepping is justified i.e. the public interest outweighs the infringement of privacy.
Programme-makers should 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 e.g. 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 e.g. approaching a politician on camera outside Parliament, situations involving media scrums.
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 'doorstepped' 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 e.g. 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 i.e. not giving the house number or naming the street.
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 (e.g. 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 if they wish, 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 e.g. 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 e.g. it is justified by the public interest or the person is not reasonably identifiable.
Surreptitious or Secret Filming
The following detailed rules must be followed. In addition, seek advice from your 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 8.13 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 e.g. 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 e.g. a ‘candid camera' style programme.
Secret filming of 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 and broadcast with the informed consent of the individual secretly recorded.
Secret filming for non-entertainment purposes
Programme-makers making programmes for Channel 4 should refer to and follow Channel 4's Secret Filming Rules at Appendix 7C . Programme- makers making programmes for Five should refer to and follow Five's Secret Filming Rules, at Appendix 8 C .
Broadcasting secretly recorded material for non-entertainment purposes is a two-stage process:
1. Before filming 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' i.e. 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 i.e. the material could not reasonably be obtained through other means e.g. by filming openly.
- All secret filming must be approved in advance in writing by the broadcaster unless there are exceptional circumstances. Requests should be made in reasonable time with each broadcaster's rules on secret filming - see Appendices. If the commissioning editor and programme lawyer consider the request to be acceptable, the commissioning editor will submit it for approval to the relevant senior programming executive. Programme-makers will then be informed whether or not their request has been approved and they can go ahead and secretly record and whether there are any conditions attached.
2. After filming has taken place.
- Material obtained through secret filming must be carefully considered and 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. - Before any secretly filmed footage can be broadcast, this must be approved in writing in accordance with Channel 4's and Five's internal compliance procedures. Again, requests should be made in plenty of time. The request to broadcast secretly filmed material should comply with each broadcaster's rules on secret filming - See Appendices 7C and 8C . 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). Where there are privacy issues, broadcast must still be justified by the public interest.
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 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 so 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.
Any proposal to secretly record someone for entertainment purposes must be approved in advance by the commissioning editor and programme lawyer. In the case of live programmes, any proposal to secretly record will be referred up in accordance with Channel 4's and Five's internal compliance procedures.
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.