Recent News

30 October 2017

Unwarranted use of “body cam” footage Channel 5’s “Can’t Pay? We’ll Take it Away!”

Ofcom has upheld complaints of unwarranted infringement of privacy in relation to both the obtaining and broadcast of footage included in an episode of “Can’t Pay? We’ll Take it Away!” broadcast in April 2016. The decision provides important clarification by Ofcom on the use of body cam footage, whether it constitutes secret filming and, if so, whether the filming is in the public interest.

The programme showed High Court Enforcement Agents (HCEAs) trying to execute a High Court writ against Miss F at her home, where she lives with her parents. Miss F was a student nurse, she owed £750.90 and had defaulted on some of the agreed monthly payments. Miss F’s father ultimately settled the debt for her, as shown in the programme. During the course of the programme there were interactions shown (in person and/or on the phone) with Miss F, her uncle and father relating to the enforcement of the debt and its payment. Miss F, her parents and uncle did not consent to the filming or its broadcast. Ofcom considered that Channel 5 had infringed the privacy of all of Miss F, her uncle, father and mother.

Channel 5 said that most of the footage in the broadcast was recorded by body cams worn by the HCEAs and was carried out lawfully. They said that the cameras were not hidden or concealed. They also said that the HCEAs wear those cameras to record their interactions with members of the public while carrying out their official Court duties, for the safety of the HCEAs as well as providing a record of their activities in case of complaint or inquiry. Channel 5 subsequently provided Ofcom with further information about the body cams, including an agreement between the producers and the HCEAs. It made clear that the body cams were provided to the HCEA by the producers and that the copyright in the footage belonged to the programme makers for the purposes of the programme. They also had control of access to the footage by the HCEAs. Ofcom considered that this agreement altered the purposes of the body cams which it felt was to enable the producers to obtain material from inside Miss F’s home as she interacted with the HCEAs and her family. They said:

“…the provision of the cameras by the programme makers and their ownership of the footage unequivocally showed that a fundamental purpose of the cameras was for the programme makers to obtain and retain footage for potential broadcast. The ownership and operation of the cameras guaranteed them exclusivity to the material recorded and enabled free, uninhibited access to Miss F’s home as she interacted with the HCEAs and her family. This afforded the programme makers a level of access that exceeded substantially any exposure which anyone in Miss F’s position, or that of her family members, could possibly have expected at the time. As a consequence, the programme makers acquired access to unguarded interactions and disclosures within the confines of the domestic family home and were able to observe and record sensitive and intimate exchanges between Miss F and her family (as well as with the HCEAs themselves) during a stressful and emotional event…”

Ofcom considered that the individuals in question were not made aware that the body cameras belonged to the producers and concluded that the filming that had taken place was surreptitious, notwithstanding the fact that the body cameras were worn openly. Ofcom said that whilst there were matters of public interest in play, none of the arguments submitted by Channel 5 showed a “prima facie” story in the public interest that would ordinarily warrant the use of surreptitious filming (as per Practice 8.13). They considered the location of the filming (Miss F’s home) and the unguarded conversations that took place about personal and financial matters were particularly relevant to the case. Having weighed the individuals’ privacy they concluded that that the privacy infringement in this case was not proportionate or warranted.

The decision is an important clarification on the use of body cam filming, the agreements in place with their wearers and the balancing of privacy and public interest in such circumstances. Ofcom does not say that you cannot use body cams and their use may be warranted if in the public interest, for example where you use body cam footage filmed by the police in relation to a convicted criminal. If you do want to use body cam filming whether provided by yourselves or by third parties, please contact your Commissioning Editor and Programme Lawyer beforehand so that advice can be given on the implications. If you do not get informed consent in relation to such footage then Channel 4’s surreptitious filming procedures (Stage 1 and Stage 2) may be required in certain circumstances. Please see Channel 4’s Secret Filming Guidelines for further information click here.

Ofcom finds against Fox News for Due Impartiality Breaches

Ofcom has upheld complaints against Fox News in relation to some of its coverage of the Manchester Arena bombing in May and Donald Trump’s Executive Order in January that restricted travel to the US from some majority-Muslim countries. Ofcom provided its decisions on the programmes even though Fox News is no longer broadcast in the UK and said: “Ofcom has decided that publication of this short form decision is appropriate to ensure there is a complete compliance record and to facilitate public understanding of the Code.”

Ofcom concluded that an episode of Hannity (in January 2017) was not duly impartial because the views of those who were critical of the travel ban were only “briefly represented in pre-recorded videos and repeatedly dismissed or ridiculed by the presenter without sufficient opportunity for the contributors to challenge or otherwise respond to the criticism directed at them.” The prominent guests also provided a supportive view of the travel ban and the presenter himself clearly supported the President and the travel ban.

Ofcom also considered that an episode of Tucker Carlson Tonight (in May 2017) was not duly impartial (and breached Rules 5.9, 5.11 and 5.12 of the Ofcom Code) in its coverage of the reaction of the UK authorities to the Manchester terrorist attack on 22 May 2017. It considered that there were highly critical statements about the authorities in question and “no reflection of the views of the UK government or any of the authorities or people criticised” and “the presenter did not challenge the views of his contributors; instead, he reinforced their views.”

14 February 2017

Mind your language!

Five has been found in breach of rule 1.6 of the Ofcom Broadcasting Code for multiple uses of strong language (the f and c words) early in an episode of ‘Can’t Pay? We’ll Take It Away!’, scheduled at 9pm. In this observational documentary about the work of High Court Enforcement Agents, the f word was used 14 times and the c word once, over a 3 minute period starting at 9.04pm. Despite a very clear on air warning by Five to viewers, Ofcom upheld the complaints and found Five in breach of the rule that states “The transition to more adult material must not be unduly abrupt at the watershed… For television, the strongest material should appear later in the schedule.” In this case, Ofcom did not accept that the editorial context was exceptional enough to justify such an early use of the strongest language, nor was the warning sufficient to change that position, and the complaints were Upheld.

Sky News got it right

Ofcom has found that a Sky News report concerning the alleged illegal sale of firearms in Western Romania, about which Ofcom received over 190 complaints of inaccuracy, was not in breach of the Ofcom Broadcasting Code. Some of the complaints had also alleged that the report had been staged or faked. Ofcom noted that the authorities in Romania had reportedly commenced investigations into the integrity of the report. However, Ofcom was satisfied that the production had complied fully with the requirement in rule 5.1 of the Code that, “News, in whatever form, must be reported with due accuracy and presented with due impartiality’. The complaints were Not Upheld.

30 September 2016

Ofcom publishes findings from new research on attitudes to offensive language and gestures.

Key findings from the research, the biggest study of its kind carried out by Ofcom, published on 30 September 2016, are:

  • Viewers are now less tolerant of racist or discriminatory words.

    Racist and discriminatory language was the most unacceptable and many people were concerned about them being used at any time unless they were particularly justified by the context.

    Potentially offensive language related to race, sexuality, gender identity and disability should therefore be treated with the most care. While what is generally acceptable to most viewers should be taken into account minorities need to be protected.
  • The watershed remains fundamental in terms of protecting viewers from offensive material, not only its role in protecting younger viewers but also helping adults who do not want to be exposed to offensive language.

    Viewers considered that the time of broadcast was the most important factor in whether or not offensive language was unacceptable. Although they would tolerate some mildly offensive content before the watershed they agreed that offensive gestures were generally unacceptable before the watershed.Swearing substitutes and bleeping of offensive language were viewed as less acceptable when used frequently. Most people understood which word was being substituted and so the effect was similar to using the actual word, especially if it was repeated.

    Occasional, accidental strong language before the watershed was seen as more acceptable on live television but viewers were less accepting if they felt broadcasters acted carelessly or deliberately. Broadcasters can therefore expect to be held to higher standards for pre-recorded programmes than for live broadcasts but should take reasonable steps to avoid offensive language during live programmes before the watershed.
  • Sexual terms are seen in a similar way to the stronger general swear words.

    People said they found them more acceptable if used after the watershed when they would be more prepared.
  • Context is one of the most important considerations in assessing acceptability of language, making generalised judgements of specific words difficult.

    Aspects such as time of broadcast, frequency of use, viewer expectations of channel, genre and programme, any warnings given, tone, delivery and other mitigating steps are taken into account by most people.
  • Viewers are more likely to tolerate strong language if it reflects what they would expect to see in the “real world”, is not gratuitous or excessive and in context.

The research is available here but we warned, it necessarily contains a wide range of offensive terms!

Attitudes to potentially offensive language and gestures on TV and radio - Research report

Attitudes to potentially offensive landguauge and gestures on TV and radio- Quick reference guide.

26 July 2016

Online Independent Complaints Reviewer

Channel 4 has appointed a new Online Independent Complaints Reviewer as part of a new appeals procedure relating to online content. Complainants who are directly affected by Channel 4 online content which they believe treats them unfairly and/or infringes their privacy will be entitled to seek a review from the independent reviewer where they are dissatisfied with a response from Channel 4. For more information go to 4 Viewers and Corporate Press Release.

30 June 2016

20 June 2016 – Ofcom upholds Privacy complaint against BBC Scotland News Programme

Reporting Scotland, BBC 1 Scotland, 15 December 2015 (Complaint by Mr & Mrs ‘F’)

Channel 4 regularly commissions factual programming that involves filming the UK (and sometimes other countries)’ public services at work. 999 What’s Your Emergency; Coppers; 24 Hours in Police Custody; Whatever Happens in Kavos/ Sunny Beach are all examples where we may rely on the public interest of covering these stories as justifying both the filming of people in an emergency situation (whether drunk or otherwise) who would not otherwise have consented to be filmed, and the eventual broadcast of stories containing them. Although of course every different situation will turn on its own facts, this is an interesting case which shows where Ofcom see the limits of this public interest defence.

Ofcom found that this BBC news programme, which included a report investigating the impact alcohol related call-outs had on the Scottish Ambulance Service’s response to “genuine, emergency” incidents, unwarrantably infringed the privacy of Mr and Mrs F in both the BBC’s actual filming of them, and in the programme as broadcast. The report included footage of Mr F sitting on the pavement outside a pub in Glasgow after having fallen and injured his head. It also showed close-up footage of blood being washed from his hand and Mr F sitting in an ambulance. In addition, the programme included footage of Mrs F in the ambulance talking to her husband. Both Mr and Mrs F’s faces were obscured in the broadcast programme.

Ofcom unsurprisingly found that Mr and Mrs F’s had a legitimate expectation of privacy in relation to the filming of them in this situation and the subsequent broadcast of the footage without their consent but perhaps more surprisingly found that their expectation outweighed the broadcaster’s right to freedom of expression and the public interest in the particular circumstances of the case. Ofcom stated:

“We considered that there was a genuine public interest in the broadcast of this programme, in that it showed the burden placed on emergency services by avoidable alcohol-related call-outs. However, in weighing up the competing rights of the parties, we took particular account of the sensitive circumstances surrounding the filming of Mr and Mrs F whilst the former was receiving medical treatment in the ambulance. In particular, and as discussed above, we took account of the confusion and distress which Mr F appeared to exhibit while being filmed in such a sensitive situation, which indeed seemed to be exacerbated by the fact that he was being filmed against his will, as well as the extent to which Mr and Mrs F were identifiable in light of the details that were presented in the broadcast. These factors led us to conclude that in the circumstances of this case, the infringement into Mr and Mrs F’s privacy in the broadcast of the news report was not warranted.”

09 June 2016

High Court affirms rights of broadcasters and rights holders of live sports events

Date of Judgement: 18 March 2016

The High Court (Mr Justice Arnold) has ruled that the use of an app offering the ability to upload, view and share clips featuring highlights of cricket matches infringed the broadcaster’s or licence holder’s copyright.

By way of background, the defendant companies, Tixdaq and Fanatix, developed an app which allowed users to upload screen captured clips of broadcast footage and to add commentary to the clips they uploaded. The content could be shared with other users. The claimants were the England and Wales Cricket Board (“the ECB”) and Sky who claimed that the users of the app infringed their copyrights in the footage.

The Decision is important in that it affirmed the current law relating to fair dealing, in particular, to the use of sports footage for the purpose of reporting current events. Specifically, the Court held that:

  • The use of 8 second clips did amount to the copying of a “substantial” part of the works in question (being the highlights of the events).

  • The purpose of the use was not for the “reporting of current events”. The Judge stated that: “I consider that the Defendants’ objective was purely commercial rather than genuinely informatory”

  • There was generally a “sufficient acknowledgement” for the purposes of fair dealing although that was not always the case

  • The use was not fair dealing as it was commercially damaging and that it “…does conflict with the normal exploitation of the copyright works.

  • The Defendants were not acting as neutral data processors under the E Commerce Directive as the content was editorially reviewed

  • The Court also recognised the operation of the Sports News Access Code of Practice which is agreement between broadcasters which allows certain clips to be used in regularly scheduled news programmes.

Producers are referred to Channel 4’s Fair Dealing Guidelines ( which includes guidelines on the use footage for the purpose of reporting current events, including sports footage.

19 May 2016

Celebrity Interim Injunction continued by Supreme Court

The Supreme Court held by a 4 to 1 majority that the injunction in this case should remain in place. The Appellant (PJS) and spouse are in the entertainment business and have children. The Appellant had sexual encounters with another individual and then one with that individual and their partner. These two individuals then approached the editor of the Sun on Sunday telling their story. The newspaper approached the Appellant and he eventually obtained an interim injunction in the Court of Appeal. The story naming those involved then appeared in a US magazine, in Canada and in a Scottish newspaper as well as online. The Court of Appeal then removed the injunction on the grounds that the information was now public but kept it in place pending the appeal to the Supreme Court.

The Supreme Court held that despite the publication online and outside of the jurisdiction, there was no public interest in the story and that removing the injunction would allow significant additional intrusion into the privacy of the Appellant, his partner and their children. The Court took the view that the world of the internet and social media was uncontrollable but that discharging the injunction would lead to a different and in some respects more enduring dimension to the existing invasions of privacy on the internet.

The decision highlights the care that has to be taken when publishing stories to consider what public interest there is, and to balance the Article 10 right of freedom of expression with the Article 8 right to respect for private and family life. It discusses the importance of the impact on the children of those involved. It highlights that the court may still afford what protection it can against invasions of privacy even where information has been published extensively elsewhere in both traditional and more recent forms of media.

9 May 2016

Update: Changes to Section 3 of the Ofcom Broadcasting Code b- with effect from 9 May 2016

Following an Ofcom consultation earlier this year Section Three: Crime is now Section Three: Crime, Disorder, Hatred and Abuse. The revised Section and associated Guidance can be found here.

The over-arching Principle of Section Three of the Code, that material likely to encourage or incite the commission of crime, or to lead to disorder, should not be included in programmes remains the same. Importantly, however, there are now two new Rules covering hate speech and abusive or derogatory treatment. While this type of content may not in itself amount to material likely to encourage or incite the commission of crime or lead to disorder it reflects Ofcom’s standards objective requiring the application of generally accepted standards to provide adequate protection for members of the public from offensive and harmful material. In addition, the revised Section Three contains a number of “notes” and “meanings”.

Rule 3.1 remains unaltered:

3.1 “Material likely to encourage or incite the commission of crime or to lead to disorder must not be included.”

But the notes and meanings provide supplemental information. For example, under Rule 3.1 “material” may include but is not limited to:

  • content which amounts to a call to criminal action or disorder (directly or indirectly)

  • material promoting or encouraging engagement in terrorism or other forms of criminal activity or disorder

  • hate speech which is likely to encourage criminal activity or lead to disorder

The meanings of “terrorism”, “hate speech”, “crime”, “disorder” and “likely to encourage or to incite the commission of crime or to lead to disorder” are also set out in the notes. The likelihood of content inciting crime or leading to disorder will depend on the nature of the material as well as the context in which it is presented.

The new rules are:

3.2 “ Material which contains hate speech must not be included in television and radio programmes except where it is justified by context.”

3.3 “Material which contains abusive or derogatory treatment of individuals, groups, religions or communities, must not be included in television and radio services except where it is justified by the context. (See also Rule 4.2).”

Significant or key contextual factors under Rules 3.1, 3.2 and 3.3 may include but are not limited to:

  • the genre and editorial content or purpose of the programme

  • the extent to which sufficient challenge is provided

  • the status or position of anyone featured

  • viewer expectation

The much expanded Guidance to this Section provides information and guidance on individual rules as well as summaries and web links to previous Ofcom decisions.

The new Guidance makes clear that:

  • the Code does not prohibit particular people or organisations from appearing on television just because their views or actions have the potential to cause offence as long as their views/actions are appropriately challenged and/or placed in context.

  • programming, including, drama, comedy and satire, may include harmful or offensive material, where there is sufficient editorial justification in keeping with viewer expectations provided there is sufficient context.

  • in assessing the likely effect on viewers Ofcom will give particular consideration to the content of statements, how they were made, and whether the material contained any direct or indirect calls to action.

18 March 2016

Elections on 5 May 2016 & EU Referendum on 23 June 2016: Issues

2016 is a busy year politically with a number of elections taking place on 5 May and the EU Referendum on 23 June. Upon the commencement of the various election periods and the EU referendum period, the usual Section 5 obligations of due impartiality are joined by Section 6 responsibilities.

Elections on 5 May

The various elections and the commencement dates for the election periods are set out below, all of which will end with the close of the polls at 10pm on 5 May 2016 (“the Election Period”):

  • London Assembly & Mayoral Elections – 21 May 2016
  • Scottish Parliamentary Elections – 24 March 2016
  • Northern Ireland Assembly Elections – 30 March 2016
  • English local elections – approx. 2,670 seats across 35 Metropolitan Boroughs, 19 unitary authorities and 70 district councils - and Mayoral elections in Bristol, Salford & Liverpool – 30 March2016
  • Police & Crime Commissioner Elections – 30 March 2016
  • National Assembly for Wales elections – 6 April 2016

During the Election Period due weight must be given to the coverage of the larger parties (see the news update on the list of larger parties below) and appropriate coverage should be given to other parties and independent candidates with significant views and perspectives.

There are strict rules governing the appearance of candidates in any type of programme during the Election Period and production companies must familiarise themselves with these requirements. It is important that you consider who the guests are and check if they are candidates.

Channel 4’s Guidelines for Programmes Broadcast in the run up to the Elections on 5 May can be found here.

EU Referendum 23 June

The EU Referendum Period will begin on 15 April ending with the close of the polls at 10pm on 23 June (“Referendum Period”). This is a 10 week period. Prior to the commencement of the Referendum Period you will need to consider whether the Section 6 rules are engaged in relation to any discussions of the EU Referendum or referendum issues during the Election Period, if the EU Referendum is being discussed in the context of those elections and therefore becomes and election issue.

During the Referendum Period due weight must be given to designated organisations in coverage and appropriate coverage should be given to other permitted participants with significant views and perspectives. Coverage must be impartial between both sides across the campaign.

The Ofcom Broadcasting Code states: “Designated organisations and permitted participants are those that are designated by the Electoral Commission”. Designated organisations are the lead permitted participant on each side of the referendum. It is likely that Britain in Europe will to be the Designated Organisation for the ‘Remain’ side. However, there seem to be three organisations (Vote Leave, Leave.EU and Grassroots Out) who might be the Designated Organisations for the ‘Leave’ side. A permitted participant is an individual, body or political body campaigning on either side of the EU Referendum.

The Electoral Commission’s decision on who are Designated Organisations is due by 14 April 2016.

There are strict rules governing the appearance of representatives of permitted participants in any type of programme during the Referendum Period and production companies must familiarise themselves with these requirements. Before 14 April 2016 production companies must ensure that they check that individuals appearing in programmes whether as contributors, presenters or interviewers are not planning to register as permitted participants, or representatives of permitted participants.

Referendum Campaign Broadcasts (“RCBs”), for the EU Referendum will be carried by Channel 4. Each designated referendum organisation will be allocated a series of RCBs before each referendum. Ofcom determines any disputes about RCBs.

Channel 4’s Guidelines for Programmes Broadcast in the run up to the EU Referendum can be found here.

Ofcom Complaints

In relation to any Ofcom complaints which raise substantive issues concerning due impartiality during the Election Period or the Referendum Period, Ofcom will act on an expedited basis to determine the outcome of any such complaints. Be prepared to engage with Ofcom on very short timescales in respect of any investigations concerning potential breaches of the impartiality provisions of the Ofcom Broadcasting Code.

18 March 2016

Update: Ofcom’s review of the list of larger parties for the elections on 5 May 2016

On 10 March Ofcom issued a Consultation response setting out who the larger parties would be for the forthcoming elections to be held on 5 May 2016. Ofcom previously referred to this list as the Ofcom list of “major parties”. However, Ofcom do not consider that the previous terminology best expresses the nature of the list and Ofcom’s role. Therefore the list is now referred to in the Ofcom Broadcasting Code as the “Ofcom list of larger parties”.

Ofcom have said that the list of larger parties reflects the fact that there are a number of larger political parties which have a significant level of electoral support and a number of elected representatives, across a range of elections within the UK or the devolved nations.

Ofcom have determined that the existing parties on the list should remain on it and in addition, the UK Independence Party (UKIP) should be added to the list in England and Wales and the Green Party should be added to the list in England for the purposes of the May 2016 London Assembly and London Mayoral elections only. The current list of larger parties is therefore as set out below:

  • England –Conservative Party, Labour Party, Liberal Democrats, UKIP (plus Green Party for the London Assembly and London Mayoral elections only).
  • Scotland - Conservative Party, Labour Party, Liberal Democrats, Scottish National Party.
  • Wales Conservative - Labour Party, Liberal Democrats, Plaid Cymru, UKIP.
  • N.Ireland – Alliance Party, The Democratic Unionist Party (DUP), Sinn Féin, Social Democratic and Labour Party (SDLP), Ulster Unionist Party (UUP).

Ofcom have indicated that following the May 2016 elections they intend to review the suitability of the list of larger parties going forwards.

7 March 2016

The Sun Found Guilty of Identifying a Victim of a Sexual Offence

Former editor of the Sun David Dinsmore has been found to have broken the Sexual Offences (Amendment) Act at Westminster Magistrates Court after inadvertently identifying the victim of a sexual offence. The story appeared on 4 March 2016 and concerned a 15-year-old girl who footballer Adam Johnson was accused of having sex with. It showed a picture of Johnson with the girl in which her image was heavily obscured (changes included a different background, photoshopping so the girl had no identifiable facial features, disguising the hair colour and changing the hair length).

The article included a warning that anyone who identified the child online would face prosecution and the Court accepted that the Sun thought they were complying with the law.

However, even though the image had been heavily obscured, the girl was identified by social media users who recognised the photo which had been on a private Facebook account. Even though Dinsmore argued the test should have been whether the person could be identified by “a man or woman on the street”, the Court held that the fact that the original photo was likely to have been seen by others and the girl was likely to have been identified was enough to prove the offence.

Dinsmore was ordered to pay £1,300 costs and £1,000 compensation.

24th February 2016

Filming with Drones

Aerial filming and photography, using remote-controlled multi-rotor UAVs (“Drones”) has become increasingly popular.

However, this does raise a number of legal issues such as would the subsequent publication:

  • amount to a misuse of private information;
  • breach the Information Commissioner’s Office (“ICO”) rules and data protection guidelines;
  • raise property right concerns; and/or
  • breach civil aviation legislation

For full details please read the new guidance note which can be found in our Secret Filming Guidelines. Please note programme-makers should always seek advice from their programme lawyer before attempting to film using drones.

28th January 2016

Court of Appeal Rules that Terrorism Act is Incompatible with European Rights Convention

In August 2013 David Miranda was detained at Heathrow Airport for carrying files related to information obtained by the US whistleblower, Ed Snowden. David Miranda was detained under powers contained in Schedule 7 of the Terrorism Act 2000 which allows travellers to be questioned to find out whether they appear to be terrorists. Such travellers have no right to remain silent or receive legal advice and they may be detained for up to six hours. These provisions have been viewed as a threat to freedom of speech and journalists’ rights. Human rights groups such as Liberty have described the powers as: “a blot on our legal landscape for years – breathtakingly broad and intrusive, ripe for discrimination, routinely misused.”

Whilst the Court of Appeal ruled that the police decision to detain David Miranda under the Terrorism Act powers was lawful, Lord Dyson, the Master of the Rolls, states in the Court’s judgment that: “...the stop power conferred by …Schedule 7 is incompatible with article 10 of the Convention in relation to journalistic material in that it is not subject to adequate safeguards against its arbitrary exercise…”. The judgement can be found here.

The decision of the Court will force the Government to re-examine the Terrorism Act. As Lord Dyson states in the judgment: “It will be for Parliament to provide such protection [for journalistic material]. The most obvious safeguard would be some form of judicial or other independent an impartial scrutiny conducted in such a way as to protect the confidentiality in the material.”

28th September 2015

New Requirement for Supporting Artists Working with Children

From 1 October 2015, agencies have 3 months’ notice that from 1 January 2016, an additional measure to protect under 18s will be applied by PACT and the BBC, Channel 4, Channel 5, ITV and Sky. As well as the normal safeguarding guidelines, protocols and codes of conduct that each Broadcaster has in place, all Supporting Artists (SAs) who work on productions involving under 18s must have obtained a basic disclosure certificate which shows the SA has no unspent convictions for offences contained within the Sexual Offences Act 2003.

Producers should inform agencies if a production involves under 18s – this includes any programme that might engage an under 18 at any stage in the production in speaking or non-speaking roles. Certificates can be obtained from Disclosure Scotland or Access NI and a new certificate must be provided every 18 months and shown to the Agent. The Producer and Broadcaster may also request to see the certificate. If within that period an SA is convicted of an offence under the Sexual Offences Act 2003, the agent will need to be informed and the SA will be unable to work on any production involving under 18s . Wording confirming the SA has no unspent convictions for offences under the Sexual Offences Act 2003 will also be added to the chit.

Regular cast and crew on productions involving children are also required to have the requisite criminal checks, and children will be chaperoned at all times.

PACT and the Broadcasters have produced an FAQ document which can be found here.

21 September 2015

Channel 5 Breaches Ofcom Child Welfare Rule 1.28

Ofcom have found Channel 5’s observational documentary, Blinging Up Baby, in breach of rule 1.28 of the Ofcom Broadcasting Code. Blinging Up Baby observed mothers and daughters as they engaged in beauty treatments, glamorous clothing, or attending children’s beauty pageants. Ofcom received 11 complaints about the participation of a four year old girl in this documentary. Particular concern was raised by her being shown taking part in a beauty pageant wearing a ‘Hooters’ (adult themed American restaurant) branded outfit, made by her mother, and performing a dance routine which some complainants considered too sexualised. Rule 1.28 states “Due care must be taken over the physical and emotional welfare and the dignity of people under-eighteen who take part or are otherwise involved in programmes. This is irrespective of any consent given by the participant or by a parent, guardian or other person over the age of eighteen in loco parentis”.

Ofcom acknowledged that this programme was a documentary which featured the girl taking part in an activity – performing at the pageant – which she would have done irrespective of whether she was featured in the programme. Ofcom considered that, although documentaries by their nature will likely require different production considerations in relation to children’s participation than other genres, like drama or a constructed reality formats, the filming of a child in a real-life situation still requires the broadcaster to consider whether featuring the child in that way in the programme may present any risks to the child’s welfare or dignity.

In this case, Ofcom considered that broadcasting the footage of this four year old girl doing her dance routine in a Hooters outfit, and in particular leaning backwards on all fours and thrusting her hips backwards and forwards four times towards the audience had the potential to compromise the child’s dignity and welfare. In Ofcom’s opinion, broadcasting this material indicated that Channel 5 had not considered carefully enough the potential adverse effects on the child, who, it accepted was unaware of how it could have been interpreted by some adults in the audience. The link to the Bulletin containing the decision is here.

Ofcom also noted that Channel 5 did not conduct a risk assessment at the post-production stage to consider any risks associated with broadcasting the child’s Hooters-themed performance and/or to seek additional expert advice. Ofcom stated that it appeared to them that Channel 5 had made its decision to include this material on the basis that the child was participating in the pageant as part of her normal activities, did not understand how the performance could be interpreted by adult viewers, any criticism of it was unlikely to be directed at her, and that her mother (who clearly had an interest in the child participating in the programme) had provided consent and was happy for the child to be featured in this way. Given the nature of the material and the potential risks it presented to the child’s welfare and dignity, Ofcom considered that this was an error of judgment.

This decision brings home the need for producers to carry out ongoing assessments of risk for child contributors as well as the need for broadcasters to form their own views as to the appropriateness of a child’s contribution (or parts of it) irrespective of parental consent.

18th August 2015

ITV and Britain’s Got Talent held in Breach of Ofcom Rule 2.1

Ofcom has held ITV in breach of Rule 2.14 of the Ofcom Code which states that: “Broadcasters must ensure that viewers…are not materially misled about any broadcast competition or voting.” This is in relation to the winner of the series final, “Jules O’Dwyer & Matisse”, where in the semi-final it later transpired that Chase, a dog which looked similar to Matisse, had performed a tightrope-walking sequence. 1,175 complaints suggested viewers were misled, on the grounds that the programme did not make clear that the tightrope sequence had not been performed by Matisse.

Ofcom did not believe there was any intention to deceive viewers, however they did consider that a number of factors had a potential to mislead viewers and were likely to have done so:

  1. The title of the act as “Jules O’Dwyer & Matisse” and to make the introduction of another dog (Skippy) as a surprise;
  2. Comments that suggested there was a single dog (such as references to a “double act” and to Matisse’s exclusive role)
  3. The set design and timing of the exit and entrances of the dogs which would add to the viewers’ belief that there was only one dog; and
  4. The fact that Chase did not appear after the performance so it was never explicitly disclosed to viewers.

Ofcom was also concerned that ITV said their compliance and interactive representatives were unaware of Chase’s role, and suggested where viewers are encouraged to vote, particularly when they have to pay, licensees need to ensure viewers are clear on what they are voting for. Here, many viewers were not aware that a central part of the dog agility act was performed by a second dog, and therefore it was held that ITV had not taken sufficient steps to ensure the broadcast was not materially misleading.

The full decision can be found here.

18th August 2015

Ofcom Guidance on Funding of Factual Programmes

Ofcom’s Bulletin no 285 published on 17 August contains guidance on managing risks to editorial independence and ensuring viewer confidence in externally-funded factual and documentary programmes.

Factual and documentary programmes can be funded by commercial or charitable organisations, providing the content is not news or current affairs as defined in the Ofcom Broadcasting Code. However, great care must be exercised to ensure that the content of the programmes is not influenced or distorted by the interests or perspectives of the funder.

Ofcom has pointed out that particular care needs to be taken where programmes are acquired by, or provided to, broadcasters by third parties who may well have separate commercial or charitable interests. This is especially the case where the acquisition is at minimal cost to the broadcaster. Broadcasters must understand how the content is funded; be transparent with viewers about the funding; and retain proper editorial control over what they broadcast.

If you have any concerns or questions about these issues, do contact a lawyer in the Legal and Compliance team to discuss things further.

12th June 2015

Broadcast Charity Appeals

Ofcom issued a note to broadcasters to remind them of the rules that apply to charity appeals:

If broadcast free of charge, a charity appeal may be broadcast as programming, providing the broadcast complies with all relevant Broadcasting Code rules – in particular, Rules 9.33 (bona fide status of charity) and 9.34 (benefit to wide range of charities). The guidance can be viewed here.

If a charity is charged for the broadcast of an appeal for donations, the broadcast material is a commercial communication and must be either an advertisement or teleshopping. It therefore needs to comply with all relevant rules in the BCAP Code and the Code on the Scheduling of Television Advertising (COSTA).

8th May 2015

Tower Hamlets Mayoral Election

Ofcom reminded broadcasters that on 11 June 2015, an election will be held for the post of Mayor of Tower Hamlets, therefore the rules in Section Six (Elections and Referendums) of the Ofcom Broadcasting Code (“the Code”) apply, as well as the rules in Section Five (Due Impartiality) of the Code and the prohibition of political advertising contained in section 321 of the Communications Act 2003.

Broadcasting Code: non-geographic numbers in programming

On 27 April 2015, Ofcom published a statement setting out amendments to Section Two, Section Nine and Section Ten of the Broadcasting Code about the use of non-geographic numbers in programming. Certain non-geographic numbers (including the 084, 087, 09 and 118 number ranges) will be subject to a new tariff structure from 1 July 2015. This new structure is designed to make the costs of using non-geographic numbers more transparent and simpler for consumers to understand. As a result, the specific pricing information which broadcasters are required to give to viewers when they invite participation in programming will change.

A copy of Ofcom’s statement can be found here.

30th March 2015

New Ofcom Guidance on protecting under-18s

Ofcom has today issued new guidance to broadcasters to ensure that the welfare of children taking part in programmes is protected. The guidance sets out the steps that should be taken to protect children in programmes before, during, and after they are aired.

Compliance decisions in this area will depend on the individual child, the level and nature of their participation and the nature of the programme.

Earlier Ofcom guidance focused on broadcasters putting the welfare of child participants at the heart of editorial and production decisions. This update is based on findings from subsequent investigations (see below), expert input and feedback from industry.

Protecting children from harm

The guidance includes advice on:

Risk assessments – the need to consider conducting thorough and ongoing risk assessments, both of risks to the child’s health and safety and to their emotional wellbeing.

Expert advice – the need to consider whether it is appropriate to seek expert advice to determine the best interests of children who take part.

Best practice on media and social media - the need in some cases for broadcasters to advise young participants and their families on any likely media and social media interest. It also sets out steps they should consider when helping participants and their families deal with any negative consequences, such as online bullying, after broadcast.

Thought also needs to be given as to what information may need to be given to viewers if the level of care taken to protect children taking part in programmes is not clear.

The guidance reflects findings from recent investigations, including:

6th February 2015

Change in Child Performance Regulations

On 6 February 2015 the Government introduced new laws to streamline and simplify the rules regarding children who are involved in performances. The new laws, enshrined in The Children (Performances and Activities) (England) Regulations 2014, overhaul the previous system.

Children who are resident in England and film in England will be subject to these laws, as well as children who are resident abroad but filming in England. The child performance legislation sets out when a licence is required, and the National Network for Children in Employment and Entertainment (NNCEE) has published a useful chart which can be found here and provides some examples of the sorts of performance or activity that may require a licence. Producers should refer to Channel 4's Legal and Compliance Department should they feel that these provisions may apply to their programmes.

The key points of the new system:

  • There are new limits on earliest and latest times a child performer may be in a place of rehearsal or performance:
  1. Under 5 years old – 7am – 10pm
  2. Over 5 years old - 7am – 11pm
  • There is no requirement for a medical certificate to be provided before a child performance licence can be issued
  • There is no limit on the type of performances children can take part in over a single day or a week.
  • The number of breaks children must have during performances has been increased, making sure children get adequate rest.
  • Education hours can be aggregated over a 4 week period.

For more information, please refer to Channel 4’s Working & Filming with Under 18s Guidelines and the following websites may also be helpful:

The Children (Performances and Activities) (England) Regulations 2014

Children and Young Persons Act 1933

Children and Young Persons Act 1963

The government has published new guidance for local authorities and amateur groups on how to implement the new rules which can be found here.

NNCEE has published examples of best practice which can be found here.

2nd February 2015

360 Diversity Charter

Channel 4 has implemented a 360 Diversity Charter to tackle the underrepresentation of certain sectors in the media and to show leadership in diversity at every level. We are striving to innovate around positive action (not positive discrimination) in a lawful way, sharing ideas with our partners and suppliers including the production companies we work with.

The Charter includes Commissioning Diversity Guidelines with genre-specific targets both on- and off- screen that we’re asking our indie suppliers to achieve from now on. We are also working on guidance for talent selection based on our diversity ambitions and in line with the requirements of the Equality Act 2010.

All the production companies we work with will be expected to take active steps to achieve these targets, working with our commissioners, and to be able to demonstrate the actions they have taken. We will provide training and development for commissioners and production companies to help understand and implement the plans set out in the Charter.

We will ask production companies to report back on the positive steps they’re taking and intend to take in future. We will also share with them the monitoring data and analysis that will be available from DIAMOND (the industry standard Diversity Monitoring System).

For more information, please see the full Diversity Charter which is available here.

14th November 2014

Unsuccessful attempt to prevent the broadcast of BBC Panorama Programme

An injunction to prevent the broadcast of the BBC Panorama programme featuring Mr Mazer Mahmood (a.k.a the “Fake Sheik”) has again been refused by the Court of Appeal. Mr Mahmood had sought the injunction to prevent the BBC from revealing his appearance (relating to images after 5 April 2006 which were not already in the public domain) on the grounds that to do so would breach his human rights, as it would exacerbate the risk to his safety and would impact his family life. The Court of Appeal rejected his claim and in particular noted that a great deal of information about Mr Mahmood, including his appearance, was already in the public domain. The programme was broadcast on Wednesday 12 November on BBC1. Mr Mahmood was criticised by the judge in the trial of Tulisa Contostavlos, saying there were grounds to believe he had lied. Mr Mahmood denies all wrongdoing and has not been charged, but has been suspended by The Sun.

14th November 2014

BBC Radio 1 interview of UK ISIS fighter found in breach of Ofcom code

Ofcom has found BBC Radio 1 in breach of rule 1.3 and 2.3 of the Ofcom Broadcasting Code following the broadcast of an interview with an ISIS fighter who said that he had travelled from the UK to join ISIS in Syria. The complainant felt it glorified terrorism, in particular by likening killing innocent people to playing a computer game. The interview included comments from the fighter saying his experience was like the game “Call of Duty” and suggesting that being a member of ISIS was better than living in the UK. Ofcom stated that whilst there was a public interest in “highlighting and analysing the beliefs and activities of this group” and in particular the views of a “UK National who had joined ISIS”, the potential for offence was heightened by such comments and were without sufficient context (such as any challenging questions being put towards the interviewee) (Rule 2.3 of the Ofcom Code). In addition, the audience also comprised of a significant number of under 18’s and the lack of any warning or proper context had the effect of downplaying the “violent and lethal nature of the actions of ISIS.” Therefore it was also considered unsuitable for children (Rule 1.3 of the Ofcom Code). The link to the decision can be found here.

28th October 2014

New Anti-Bribery Guidelines for Independent Producers

On 28th October 2014 Pact issued anti-bribery guidelines for independent producers.

Produced with the BBC, ITV, Channel 4 and Channel 5, these high level principles and guidelines represent a combined view of best practice to help independent production companies to comply with the Bribery Act 2010 (“the Act”). These guidelines are also supported by STV, UTV and S4C. It is important that production companies understand the implications of this legislation in the UK and beyond. Failure to comply and to implement a company anti-bribery policy could result in senior management facing serious criminal and civil sanctions.

Alongside the high level principles, the guidelines also include useful examples of potential offences under the Act and guidance on issues such as gifts and hospitality in the workplace.

You can find the Pact press release here.

The Guidelines themselves are in the Channel 4 Producers Handbook here.

21st October 2014

Updated Data Protection Guidelines

On 21st October, 2014 the updated DPA guidelines which we have agreed with PACT, BBC, ITV and others were launched. The guidelines set out recommended safeguards that all production companies should implement in order to best protect all personal data and to ensure compliance with the Data Protection Act 1998 and the Privacy and Electronic Communications (EC Directive) Regulations 2003.

The three updated areas in the guidelines are:

  • Additional information on cookies;
  • A new section on location data. Following the European e-Privacy Directive, publishers must not collect geolocation information about their users without prior consent; and
  • Additional guidance has been included on effective anonymisation which can be used to publish data which would otherwise be personal data.

You can find the updated Guidelines here.

1st October 2014

New Parody Copyright Exception

From 1st October the Fair Dealing provisions under the Copyright, Designs and Patents Act 1988 has been extended to include: "Fair dealing with a work for the purpose of caricature, parody or pastiche"

The ambit of this new extension of the fair dealing provisions is yet to be tested in the UK courts and producers should refer to Channel 4's Legal and Compliance Department should they feel that elements in their programmes fall within these provisions.

More information can be found here.

18th July 2014

Ofcom research report – Audience attitudes towards violent content on television

Ofcom has commissioned research published on 18 July 2014 on audience attitudes to violence on television.

The research comprises two reports: the first looks at public attitudes towards violence on TV generally, and the second looks specifically at scenes of violence or threats of violence in four popular UK soap operas - EastEnders, Coronation Street, Emmerdale and Hollyoaks. A copy of the reports can be found here.

The first report found that time of broadcast was the most important factor in relation to the acceptability of violence. Different demographic groups showed only subtle differences in their views about violent content but all agreed that children should not be exposed to sexual violence in any circumstances. It also found viewers were able to analyse contextual factors when assessing if content was acceptable, and suggested five key questions to be asked when judging how acceptable a violent scene is:

  • what time is it shown
  • who is the victim
  • what is the act of violence
  • how is it presented; and
  • what is the purpose of the scene.

In relation to soaps, the main findings of the report were that the amount of violence in soaps has varied over the years and there is likely to be a gradual build-up to violence so viewers are unlikely to be surprised by it.

Ofcom said it has used this research to update its guidance to broadcasters on violence on TV, and that the reports will inform Ofcom’s decisions when investigating TV programmes with violent scenes that are shown before the watershed.

13th June 2014

Product Placement - new Ofcom guidance

At the end of May 2014, Ofcom published further guidance on product placement. In broad terms, the guidance covers three main areas:

  • Distinction between programme and advertising content
  • Instructional programming – e.g. ‘Make over’ and cookery programmes
  • Identifying generic and unbranded placement

This new guidance should be read in conjunction with the existing guidance on Section 9 of the Ofcom Broadcasting Code. This section contains rules that apply to commercial references in television programmes. The rules, which are underpinned by European and UK law, ensure that the principles of editorial independence; distinction between advertising and editorial content; transparency of commercial arrangements; and consumer protection are maintained. Section 9 contains overarching rules that apply to all commercial references and specific rules for different types of commercial references, such as sponsorship and product placement.

Product placement

Product placement is the inclusion of, or reference to, a product, service or trade mark in a programme in return for payment, or other valuable consideration, to the broadcaster, programme producer or any person connected with either. Product placement has been permitted in programmes broadcast on Ofcom-licensed television services since 28 February 2011, subject to the rules in Section 9 of the Code.

Section 9 of the Code contains a number of rules about what type of products can be placed, in which programmes, and how those products can be featured. Among other things, the rules require that:

  • product placement must not influence the content and scheduling of a programme in a way that affects the responsibility and editorial independence of the broadcaster (Rule 9.8);
  • references to placed products, services and trade marks must not be promotional (Rule 9.9); and
  • references to placed products, services and trade marks must not be unduly prominent (Rule 9.10).

In order to assist broadcasters when considering the acceptability of certain types of product placement, Ofcom has identified three areas where it believes broadcasters will benefit from additional guidance:

  • maintaining a distinction between programme and advertising content;
  • the use of product placement in instructional programming;
  • the placement of generic products.

Distinction between programme and advertising content

A primary tenet of the rules in Section 9 of the Code is the maintenance of a distinction between programme content and advertising. The use of references to products and services in programmes for commercial purposes clearly tests this principle. Accordingly, the key purpose of the product placement rules is to prevent such arrangements distorting the editorial content of programmes.

Product placement is permitted where a reference to a product, service or trade mark (which is made in return for payment or other valuable consideration) is woven into a programme’s narrative. It is important to emphasise that product placement does not provide companies with scope to fund programmes that are essentially about their brands. Legitimate product placement is where the placement is embedded within a programme, not where the placed product becomes the focus of the editorial content. There is a significant likelihood that a programme centred on a placed product would fall foul of both the product placement rules and other rules in Section 9 – in particular Rule 9.2, which states that “Broadcasters must ensure editorial content is distinct from advertising”.

Therefore, to comply with the rules in Section 9, a programme’s narrative must always serve an editorial end: its purpose must not be, or appear to be, to promote the products of a third party included within it. Where a reference to a product is included in a programme for commercial purposes, broadcasters need to take care that the lines between advertising and programming are not blurred.

The Ofcom guidance provides further illustrations of when product placement may lead to compliance problems and a blurring of the boundary between programming and advertising.

Although the product placement rules permit paid for references to products, services and trade marks in programmes, they do not allow commercial entities to fund programmes about their specific interests. Broadcasters are required to maintain a distinction between advertising and programming and accordingly must think carefully as to whether commercial and contractual arrangements that engage the product placement rules blur the boundaries between advertising and programming.

Instructional programming – e.g. ‘Make over’ and cookery programmes

Rule 9.12(b) prohibits product placement in consumer advice programmes. However, the Code does permit its use in other programme genres, such as reality programming. Programming that falls within permitted genres may contain information about, or demonstrations of, particular products, such as those relating to cookery, fashion or DIY. If broadcasters wish to include product placement in such programmes, they need firstly to satisfy themselves that the content does not fall into the ‘consumer advice’ category. They should then consider carefully whether their chosen approach is likely to be perceived as promotional. In particular, demonstrations or tasks with positive outcomes predicated on the use of specific brands are likely to be difficult to reconcile with Rule 9.9 of the Code.

For example, in ‘make over’ shows that feature a positive transformation – e.g. of a person or home – the specific placed product should not be seen as the reason for the positive change. The use of product placement in these circumstances poses inherent difficulties and content is likely to be viewed as promoting the placed products.

In cookery programmes, it is usual to show presenters and guests enjoying a dish prepared during the programme. Given the context of such programmes, there is likely to be clear editorial justification for positive commentary. However, the use of placed products in the production of dishes may be problematic under Rule 9.9, if the success of a recipe appears to be dependent on the use of a specific branded ingredient rather than a generic variant.

Ofcom accepts that advertisers will want to seek out product placement opportunities that enable their brands or products to be presented to audiences in a positive light. However, broadcasters must ensure that such references are appropriately limited. If ‘make over’ or cookery programmes focus on the positive attributes of placed products, they are likely to conflict with Section Nine of the Code. We advise licensees to consider very carefully whether references to placed products, services or trade marks in 'make over' or cookery programmes primarily serve an editorial or promotional purpose.

Identifying generic and unbranded placement

Product placement provides the opportunity for brands to gain exposure through programme content. To comply with the product placement rules, product placement should fit within the editorial content in which it appears. Inevitably, this fit will be easier to achieve in some programme genres and for some products.

Products that feature prominent or distinctive branding may be more attractive to those looking at using product placement as a way to gain brand exposure. Although there is equal scope for both branded and unbranded products to be placed in programmes, the degree of brand exposure gained through generic or unbranded placement is unlikely to match that of a branded product. Broadcasters may take steps to provide viewers with information about unbranded products placed in programmes. However, Ofcom’s published guidance3 makes clear that broadcasters should think carefully about the appropriate point at which to provide such information.

A reference during a programme to the brand or supplier of a placed product that is not readily identifiable is likely to be justifiable only if it can be accommodated plausibly into the programme’s narrative. Brand references that are not part of the programme’s narrative (e.g. their purpose is solely to identify a placed product) are likely to give rise to issues of undue prominence and promotion.

Broadcasters should exercise particular caution when identifying generic and unbranded product placement within programmes. Where a reference cannot be accommodated editorially, broadcasters should consider identifying generic and unbranded products during end credits.