Legal Checklist - Fairness and privacy

Truth and accuracy

Documentaries are so called because they document, on film, real life. As film-maker, you choose what to film and how to edit it together, so inevitably your film is your spin on life but it should always accurately reflect the reality. Your film must be truthful, accurate and fair. Your first duty is to the evidence and you must check all facts and any allegations contained in your film and be able to substantiate their accuracy as appropriate. This includes any claims by interviewees or contributors, which may sometimes need to be corroborated.

If you decide to film a dramatic reconstruction of a factual event as part of your film, you should label it as such so viewers are not misled. Similarly, if anything in your film is set up or faked, we'd like to know about it. It won't necessarily mean that your film is rejected but we would need to think carefully about whether the film was right for the FourDocs. You should note that this is a community for factual documentary-making as opposed to fictional dramatic works.

Fairness Generally

Your film should be fair, not only to the contributors that appear in your film but also to anyone that is referred to within it.

Fairness to Contributors

Contributors and interviewees should be made adequately aware of the format, subject matter and purpose of the film that they are being asked to appear in. Such contributors should also be informed of any significant changes to the film as it develops which might reasonably affect their original consent to participate and cause material unfairness.

Fairness, of course, applies equally to the editing of interviews as to their conduct. Editing to shorten recorded interviews must not distort or misrepresent the known views of the interviewee.

Where a film alleges wrongdoing or incompetence or contains a damaging critique of any individual or organisation, those concerned should normally be offered an opportunity to take part or otherwise comment on the allegations. This is, of course, important also for libel considerations (see above). If a statement is offered then this should be incorporated into the film. If the statement needs to be edited then it should be done so in such a way as to represent its original content as fairly as possible. If the person or organisation refuses to take part or offer a statement then you should still try to give as fair an account as possible of their position, if it is known.

Freedom of expression versus the right to privacy

Everyone has the right to freedom of expression and the right to respect for his/her private and family life and, indeed, these rights are now enshrined in British law within The Human Rights Act 1998. However, these rights can at times conflict and there will be occasions when an individual’s right to respect for private and family life, or a film-maker’s or contributor’s right to freedom of expression, may be restricted in the public interest.

Any act that relies on a defence of public interest must be proportional to the actual interest served. For example, for any significant intrusion into an individual’s private affairs where there is likely to be a significant risk of distress, there must be an important public interest served. Examples of a public interest, which may justify an intrusion into a person's privacy, include:

• detecting or exposing crime or a serious misdemeanour
• protecting public health or safety
• preventing the public from being misled by some statement or action of an individual or organisation
• exposing significant incompetence in public office.

Private information

So how might you commit an unwarranted invasion of someone's privacy? One of the most likely ways is through contributors revealing private information on film about others, possibly other contributors in your film but more likely those that don't appear. It could be anything from saying why someone's marriage broke down to revealing simply, in passing, that someone is suffering from a serious illness. That person may take great exception to their illness being made public knowledge. Comments that we regularly make about others in everyday life can amount to an unwarranted invasion of privacy if they are captured on film and broadcast to the viewing public.

It is also possible to commit an unwarranted invasion of someone’s privacy simply by filming them in certain circumstances. When you are filming in public places and people are captured on your film, you must satisfy yourself that any words spoken or action taken by them are sufficiently in the public domain to justify their being communicated to an audience, without the person’s express permission being sought. This applies in particular to footage from cameras of which the individual is unlikely to have been aware e.g. where the camera is out of view or hidden, or close circuit cameras.

In practice, this means that shots of people walking down a street or just going about their business are unlikely to be problematic but if, for example, you were filming on a street and you captured on film a couple having an argument, then it could well be an unwarranted invasion of their privacy to broadcast that to a wider audience, particularly if their argument contained comments of a private or sensitive nature.

In semi-public places, eg hospitals, department stores, restaurants, bars, clubs, even on public transport etc. people have a greater expectation of privacy than in totally public places such as on the streets or in parks. First of all you should obtain the consent of the legal owner of the place where you are filming to film there. Once permission is received, it is likely that the footage that you shoot will include shots of individuals who are incidental, rather than central figures in your film. So do you need their express consent to include them in your film? As a general rule, where they are incidental and are clearly random and anonymous members of the general public, the answer is “no”, you don’t need their express consent. However when their appearance is not incidental, where they are not random and anonymous or where though unnamed they are shown in particularly sensitive situations e.g. as patients in a hospital, individual consents to use this material should be sought.

Getting Consent

So if a person's words or actions are not sufficiently in the public domain to warrant them being included in your film without their express consent, you must obtain their consent. Normally, in documentary-making, this is achieved by getting the subject of the filming to sign a standard paper release form that grants the necessary consent. However, an alternative and one, which is more practical for our purposes, is to obtain the consent of individuals on camera. With the camera pointing at the subject of the filming you should ask them whether they agree to be filmed, whilst stating what the film is about and how their contribution is likely to be used in the film and explaining that the film is likely to be broadcast on the internet and may possibly be shown on television. If they try to place conditions on their participation think carefully before agreeing. For example, if someone said they only agreed to being filmed if the film is to be shown in the UK, then you would not be able to film them as films on the Internet can be accessed and viewed around the world. If a person is not able to give or withhold agreement e.g. because they are too old or infirm, permission to use the material should be sought from the next of kin or from the person responsible for their care. DOWNLOAD A STANDARD LOCATIONS CONSENT FORM FROM THE SHOOTING PEOPLE WEBSITE

Permission to film in a location

Filming on private property must only be undertaken after you have the consent of the legal owner of that property. To do otherwise might be to commit a trespass. DOWNLOAD A STANDARD LOCATIONS CONSENT FORM FROM THE SHOOTING PEOPLE WEBSITE

Consents - a summary

• When filming in public places eg the streets, parks, public highways, you are only likely to need to obtain express consent on camera from the main contributors that you are filming with ie those that the camera is following or that speak to camera or whose words are caught on camera (unless what they say is very inconsequential e.g. a passer-by looking into camera and shouting "hello mum", as the general public are want to do from time to time). Generally, you will not need to obtain the express on-camera consent of people that are merely passing by or are caught on camera in the background or in the distance.
• When filming in semi-public places e.g. shops, bars, restaurants, clubs, the entrance of a hospital etc: 1) you must obtain the consent of the legal owner or person in charge of the location to film there; 2) once obtained, you should be fine to film but, where possible, and particularly in places where people may not wish to be filmed e.g. in a hospital or doctors waiting room, it may be a good idea to put signs up stating that you are filming, explaining a little about what the film is about and advising anyone that does not wish to be filmed to avoid the camera (or alternatively perhaps, if you were filming somewhere like a bar or night club, you could ask the DJ to make an announcement); 3) obtain the on-camera consent of all main contributors ie those the camera follows or deliberately lingers on for more than just a few seconds or those who speak to camera or whose words are caught on camera. Generally, you will not need the on-camera express consent of people that are merely passing by or are caught on camera in the background or distance.
• When filming in private places or places where people expect a greater degree of privacy eg someone's home, on a hospital ward, then you must obtain the consent of the legal owner of the property or person in charge and since there are only likely to be a few main contributors all of whom are filmed extensively, it is likely that you will need the express consent on camera of all those present. [An exception might be if you were filming at a large house party, in which case the situation would be more akin to a semi-public place i.e. you would have consent from the legal owner to film there; you would make it known to everyone present you were filming either with signs or by making an announcement and asking people who did not want to appear to avoid the camera; and, you would get express on camera consent for all main contributors i.e. those the camera followed or deliberately lingered on for more than just a few seconds or those who speak to camera or whose words are caught on camera].
• Children and young people. Special care is required when filming with children and young people. When you are filming with anyone under 16, you must obtain the express on-camera consent not only of the child or young person, but also of at least one of their parents (that parent having custody or joint custody of the child). Preferably you should have parental consent before any filming is undertaken but in the event that some filming takes place first, you should obtain parental consent as soon as practically possible afterwards and definitely before you film with the young person again.
• Schools: you must also be careful when filming in or around schools. Before you undertake any filming on school property, you must have the full consent of the Head Teacher of the school (this consent being recorded on camera). Also, be careful when filming near to or outside schools. You should not hang around outside schools hoping to film or interview or obtain vox pops from children or young people or do anything that might be considered to be intimidating.
• If you yourself are under 16 years of age, and want to upload your film to FourDocs, please contact us first at fourdocs@channel4.com

Example

You are filming with a group of 18-year-olds who are enjoying a night out on the town and you are following them as they go around the bars on a Friday night. All of the group are filmed and interact with a number of people whilst out and about. They are filmed both on the street and in pubs and bars. The filming is unplanned and you don’t know where they are going next. What consents are you likely to need? You will need the on-camera express consent of all the members of your main group. If they meet up with any other friends who tag along, then it’s likely you will need to obtain their on-camera express consent too as they are likely to be filmed extensively. Say, for example, they interact with some passing girls on the street, perhaps chatting them up. If the exchange is fleeting then you probably won’t need the girls' express consent on-camera. If the exchange is more prolonged or is of a sensitive nature e.g. sexual etc. then express consent on camera is likely to be advisable. In addition, people seeing the camera may just come up to the camera and shout something e.g. an obscenity or to say hello to someone or they may make a rude gesture. In the vast majority of such cases, you would not need express on-camera consent from that person. Perhaps the group or some of them enter a bar or a fast food takeaway restaurant. Can you film inside? If the owner of the bar or takeaway refuses to let you film, then you cannot but you could continue to film outside. If they agree, i.e. you have the owner or manager’s consent, then you can go ahead and film. Whilst filming inside, try to obtain the on-camera consent from anyone you film speaking to camera or of those whose words are caught on camera. As above, you are unlikely to need to get express on-camera consent from those in the background. Note: if the filming had been planned in advance, then it would be advisable to contact locations in advance to clear all filming.

Secret recording

This includes all filming where the subject is unaware that he/she is being filmed or recorded and includes secretly recording telephone conversations. The rules relating to secret filming for inclusion in films broadcast on television state that it is only acceptable to secretly film... "when it is clear that the material so acquired is essential to establish the credibility and authority of a story and this cannot or is unlikely to be achieved using open filming or recording techniques, and where the story itself is equally clearly of important public interest". In relation to secret filming commissioned and intended for broadcast on television there are also further safeguards such as getting permission from the broadcaster’s most senior editorial executive both before any secret filming is undertaken and again before it is broadcast.

Secret filming by its very nature involves an invasion of privacy of the subject of the filming and as per the above rules this can only be justified when it is in the public interest, when the public interest in undertaking and broadcasting the secretly shot footage outweighs the invasion of privacy to the individual filmed.

Because secret filming does almost in all cases involve this invasion of privacy, it should not be attempted by inexperienced film-makers. It needs very careful thought and handling. It can also in some cases involve danger to the film-maker e.g. there’s always a risk that your secret filming will be discovered and your equipment may be damaged or taken or, even worse, you may be attacked (see section regarding Health and Safety). For these reasons, we strongly advise against making films that involve secret filming. In addition, such material is unlikely to be suitable for inclusion on FourDocs. We simply don't have the resources to be able to make the sorts of detailed checks we would need to, to ensure that the secret filming was justified and did not constitute an unwarranted invasion of privacy.

It may be that, like many entertainment programmes, you do undertake some secret filming but then reveal what you have done and obtain the permission of the person recorded to include the material in your film. This type of secret filming would be acceptable but if you do this, you must obtain the person’s full and clear consent on camera, in accordance with the above. If there is any doubt as to whether the person fully understands what was filmed, how they were filmed, how the footage is likely to be included or what the film is about etc. then your film will be rejected.

Summary

• In every aspect of your filmmaking, try to act fairly to crew, contributors and people/companies/organisations that are referred to.
• Ensure that contributors are all made adequately aware of the nature, format and subject matter of the film in which they are appearing and the way in which their contribution is likely to be used. Make sure that contributors know where the film is likely to be shown and let them know if the film evolves into something substantially different from the film they originally agreed to take part in. If it does, you might have to re-seek their consent.
• When editing footage, edit fairly. Don't misrepresent what people have said.
• If any criticism or potentially damaging allegations are made about a person or company, then they should normally be given the opportunity to respond. Where such a response is given, it should be included fairly.
• Any invasion of privacy must be defensible in the public interest. Where the invasion of privacy outweighs the corresponding public interest, then lose the relevant comments etc.
• Secret filming by its very nature involves a serious invasion of privacy and is unlikely to be suitable for FourDocs, unless it is of the traditional entertainment type where the subject of the filming has, since the secret filming took place, given their consent to it being broadcast.