8C Five : Rules of Practice and Procedure for Secret Filming and Recording for Programmes Commissioned by Five
Rules of Practice and Procedure for Secret Filming and Recording for Programmes Commissioned by Five
1. Introduction
Secret filming and recording are powerful journalistic tools. Material obtained covertly may be the only evidence of the wrongdoing it captures. Given the power of secret filming it must be undertaken responsibly.
The act of secretly filming has an impact on an individual's right of privacy which can only be overridden where there is a genuine public interest which outweighs that right.
Five has drawn up these guidelines to ensure that the secret filming and recording carried out on our programmes accords with the Ofcom Broadcasting Code (see Sections 8.13 and 8.14 of the Code) and in order to maintain the highest possible journalistic standards. The conduct of producers could be judged by the regulators and the courts and compliance with these guidelines is paramount; failure to do so could lead to sanction and potentially legal liability.
After transmission, footage obtained covertly could become evidence in a criminal prosecution or a libel trial. The way in which the footage is obtained must not, therefore, be open to criticism as to its authenticity or for the methods used to obtain it.
This document refers throughout to secret filming but the rules apply equally to secret audio recording. Secret filming covers not just the use of covert camera equipment but also situations where the subject does not realise they are being filmed although filming is being undertaken openly or when they may believe the camera is switched off. The Code defines "surreptitious filming or recording" (which is subject to these rules) as:
"Surreptitious filming or recording includes the use of long lenses or recording devices, as well as leaving an unattended camera or recording device on private property without the full and informed consent of the occupiers or their agent. It may also include recording telephone conversations without the knowledge of the other party, or deliberately continuing a recording when the other party thinks that it has come to an end."
Covert filming and recording should never be considered just another programme technique and must not be abused.
This document must be copied to all members of your production team and it is the responsibility of the executive producer and the producer to ensure that it is carefully read, understood and adhered to by all those working on a particular programme.
2. Procedure before undertaking secret filming
Secret filming must not be used as a ‘fishing expedition' in the hope that incriminating material may be captured. Some evidence of wrong doing must
be obtained BEFORE recording is undertaken which justifies secret filming. What constitutes sufficient evidence of wrong doing will vary according to the facts and circumstances of each case.
All secret filming must be approved by Five in advance. This requirement will only be waived in exceptional cases where prior approval is not possible due to the particular circumstances of filming. Please notify Five in good time of any plans to film secretly, preferably at least two full working days in advance, so that the approval process can be properly instituted. The notification should be sent to the Five programme lawyer and the commissioning editor. You must undertake the following when considering any secret filming:-
- Consider how your proposals will meet the requirements of Section 8.13 of the Ofcom Broadcasting Code which states that the material acquired through secret filming must be "necessary to the credibility and authenticity of the programme" and the story under consideration is in "public interest".
- Discuss your plans with the commissioning editor and the Five programme lawyer responsible for your programme.
- Make a detailed written request to the commissioning editor and the lawyer, setting out your proposals including:-
- Who will be operating the equipment and who will accompany them?
- What equipment will be used and where will the secret camera(s) be placed, eg in a jacket or in a bag?
- The subject(s) of the secret filming.
- The proposed circumstances of the secret filming - location, timing, whether it will take place on a specific date or when circumstances allow.
- The reason you think it complies with the test under Section 8.13 of the Broadcasting Code - what evidence is there of wrong doing, why can't the footage be obtained conventionally and why is there a public interest to the story?
- What is the proposed cover story of the secret camera person and their companion(s)?
- Where appropriate, what arrangements have been made for their safety and is there a clear plan to exit a situation?
An outline pro forma application which you should follow is attached.
You must notify Five in writing, beforehand if possible, of each new secretly filmed encounter even if it is already covered by an existing secret filming approval. Each new request should be numbered sequentially.
3. Procedure for obtaining approval at Five
Once Five has details of your proposals your commissioning editor will discuss these with the Five programme lawyer and with the Director of Programmes or the most senior programming executive who is available. You will be advised when approval has been granted or whether more information or evidence is required.
4. The responsibilities of the producer once secret filming has been approved by Five
- There must be set up an adequate logging system for secretly filmed rushes which shows:-
- The date and time of filming.
- The place.
- Who was filmed and who was present with the secret camera person
- When the rushes were received at the production company
- When they were viewed by the producer and any other production personnel
Five may wish to see rushes and/or accurate transcripts at any time during production, before transmission and after transmission, in the event of any legal or regulatory issue arising. Original secretly filmed rushes and the logging system must be preserved for at least four years from the date of the programme's transmission.
- Producers are directly responsible for logging and viewing all the secretly filmed rushes as soon as reasonably practicable, preferably no later than 24 hours after they are delivered to the production company.
- The Executive Producer or the most senior member of the production is responsible for ensuring that he/she has viewed all necessary secretly filmed rushes, depending on the nature of the project and production personnel.
- The producer (and executive producer where applicable) are responsible for telling the commissioning editor and/or the Five programme lawyer promptly of any matter of concern of which he/she becomes aware. This includes:-
- Any inappropriate behaviour by the secret cameraperson and/or their companions, for example, any attempt to provoke or improperly entrap the subject(s).
- Anything which suggests that the footage is not authentic.
- Any matters which could have a bearing on the direction of the story and the content of the film.
- No further secret filming should take place until the rushes of the previous secret filming have been checked by the producer, unless there is a compelling reason why this cannot be done.
5. Rules of conduct for secret camera operator
The producer (and executive producer, where applicable) are individually and directly responsible for the conduct of the secret camera person and anyone accompanying him/her undercover and for making them aware before filming commences that they:-
- Must remember that whatever they say once the camera is running may one day be heard by the subject being covertly filmed. They must, therefore, be sensible about what they say and how they behave before and after the filming of the subject.
- Are required to keep a detailed diary of their secret filming and all other meetings/conversations with the subject(s). This will form a contemporaneous record of their dealings with the subject(s) and/or a valuable evidential record if the camera fails.
- Must agree their cover story with the producer beforehand. The level of any deception must be commensurate with the story.
A secret cameraperson and anyone who accompanies them undercover will usually be playing a role which goes well beyond simple observation. In the process of interacting with the secretly filmed subject(s) care must be taken to ensure that wherever possible the secret camera operator avoids encouraging conduct which might not have occurred at all but for their intervention. A careful line must be trodden to avoid a subsequent accusation of improper entrapment.
- If any payment is made by the secret cameraperson or their companions to someone secretly filmed this payment should be referred to Five, and, if possible, approved in advance. Such a payment may affect the credibility of that person and we may decide it is necessary to inform viewers about it.
If a subject becomes aware they have been secretly filmed Five must be notified as soon as reasonably practicable.
On no account must a secret cameraperson or anyone undercover construct, reconstruct or otherwise fabricate scenes and pass them off as if they really happened.
No filming which could have taken place openly should be passed off as secret.
Any scenes which reconstruct or re-enact real events, even with the real people involved, must be clearly labelled in the programme to avoid confusion on the part of the viewer.
6. Supervision of secret filming by the producer
The producer must ensure that:-
- All members of the production team have received a copy of this document and have read and understood its terms.
- The person secretly filming is able to take on the tasks and responsibilities required of them. He/she must be familiar with the operation of the equipment and the risks involved. The safety of those undercover is paramount.
- He/she adequately supervises the secret cameraperson throughout their research as well as throughout the undercover operation.
If the secret cameraperson is not an experienced television journalist, Five requires, before secret filming commences to see:-
- A police check on whether he or she has any previous convictions, if considered appropriate
- A detailed CV
- References, as appropriate
- A written report on any existing relationship between the secret cameraperson and the proposed subjects of the secret filming.
These must be sent to the commissioning editor and the Five programme lawyer.
If it is thought appropriate, even if the secret cameraperson is an experienced television journalist, Five may well require him or her to undergo a police check on their previous convictions if the undercover operation is likely to involve him/her in the technical commission of a criminal offence, for example buying drugs or handling stolen goods.
In the event that the journalistic activity involves the technical commission of a criminal offence, albeit without criminal intent, early advice should be obtained from the Five Legal and Compliance Department on the specific procedures which should be followed as a strong public interest case will have to be made out. The physical evidence obtained may well form the basis of a subsequent prosecution of the individuals whose criminality has been exposed.
7. Undercover in an organisation or company
If the secret camera operator or other person going undercover is to be obtaining a position as a employee or similar position in a company or organisation, specific advice must be sought from the Legal and Compliance Department beforehand. In particular, the following rules must be followed:-
- Any remuneration received from the company/organisation must be paid into an account set up for that purpose.
- The secret cameraperson must not purport to have qualifications or experience which he/she does not have where this might put them or others at risk or lead to legal problems.
- Five's Legal and Compliance Department must be consulted before application forms for such positions are filled in.
8. Procedure for obtaining permission to broadcast the secretly filmed material before transmission
Your commissioning editor is required to seek prior approval in writing from the Director of Programmes to broadcast material obtained by secret filming. The material which we propose to broadcast must also satisfy the requirements of Section 8.13 of the Broadcasting Code, that is, it must be necessary to the credibility and authenticity of the programme and that the story being followed is in the public interest.
9. After transmission
- If the secret filming has revealed the commission of a criminal offence, Five may consider, in consultation with the producer, disclosing the secretly filmed footage and other material to the prosecuting authorities unless they contain a confidential source or other confidential material.
- In these circumstances, it will usually be necessary for the police or other prosecuting authority to interview the secret camera operator about the methods they used. In addition to the diary he/she is required to keep, the secret camera operator should be made aware that their notes and other records may be considered relevant and that they will be a pivotal witness in any subsequent prosecution.
- In the event of legal proceedings or regulatory issues arising after transmission all rushes and other material will be central to our defence and so may be disclosed to the Claimant, in the case of legal proceedings, or to the complainant, in the case of a regulatory issue, and the regulator itself.
If you are in any doubt about anything in this document or require advice please contact the appropriate Five programme lawyer.
If you need urgent legal advice out of office hours a member of the Legal and Compliance Department is always available on mobile.
Five
August 2007
To be typed on production company notepaper
To: [Commissioning Editor]
Five
22 Long Acre
London
WC2E 9LY
and: [Programme Lawyer], Legal and Compliance Department, Five
[Programme Title]
Application for permission to secretly film and/or record under Section 8.13 OF THE Ofcom Broadcasting Code
Date of application: [Insert date]
Number of application: [Insert sequential number for your project]
Subject(s): [Insert name of individual(s) or organisation(s) to be secretly filmed or recorded including their address, if known]
Background: [Details of the investigation]
Evidence which gives rise to concern and which justifies secret filming:
Your plans: [include details of how the filming will be conducted and any cover story]
Why covert filming/recording is essential to establish the credibility and authority of the story: [Explain why evidence could not be gathered by conventional methods]
Why story is of itself of important public interest: [Set out reasons including details of any alleged breaches of the law]
Proposed date(s) of filming/recording: [Insert date(s) or period over which approval for filming is required]
Proposed likely venue(s) for secret filming/recording:
Signed ______________________
Print your name ______________________
Title (e.g. Producer) ______________________
Date _______