- This section covers doorstepping, deception and setups, drone filming, and recording telephone calls.
- Use the Filming Techniques e-module to see these guidelines in practice.
- See also: Secret filming guidelines
'Doorstepping' means filming or recording an interview or attempted interview with someone, or announcing that a call is being filmed or recorded for broadcast/publication, without any prior warning. Inevitably, doorstepping will involve an infringement of the privacy of the person being approached; therefore, the use of a doorstep interview, whilst not improper in itself, needs to be judged with great care.
Doorstepping should not take place unless a request for an interview or response has been refused, it has not been possible to request an interview, or there is good reason to believe that an investigation or the purpose of the content will be frustrated if the subject is approached openly. In all the circumstances, doorstepping must be justified; that is, the public interest outweighs any infringement of privacy.
Any doorstepping must be discussed and approved in advance with your content lawyer/compliance advisor.
Careful consideration needs to be given to exactly how the 'doorstep' should be carried out. For example, the security of the crew must be considered, as should the risk of infringing the privacy of innocent third parties, for example family members. For this reason, it is rarely acceptable to doorstep someone at their home.
The above rules do not generally apply to attempts to interview or interviews with people in the news in public places, for example, approaching a politician on camera outside Parliament, or situations involving media scrums.
Everyone has the right not to comment. If you are asked to leave the property by the owner or to stop questioning or telephoning, you should normally do so.
In entertainment content
In entertainment content, the above rules do not need to be followed. However, safeguards should be put in place to avoid offence and any unwarranted infringement of privacy. In addition, the material will not be able to be broadcast/published without the full informed consent of the individual 'doorstepped' or filmed.
Subterfuge, deception and setups
Content which involves subterfuge, deception or setup situations, or wherever a subject has consented to be recorded for a purpose other than that intended covertly by the content-makers, must comply with the relevant sections of the Ofcom Code.
Content creators should not normally obtain or seek information, audio, pictures or an agreement to contribute through misrepresentation or deception. However, it may be warranted to use such material obtained through misrepresentation or deception without consent if it is in the public interest and cannot reasonably be obtained by other means.
- Any use of deception must be justified by the public interest and be proportionate to the public interest.
- Special rules apply to the use of entertainment setups or unsolicited wind-up calls.
Early advice must be taken from your commissioning editor and content lawyer/compliance advisor.
- In certain circumstances deception can be used, with Channel 4's prior approval, where it is intended to reveal the deception after filming and seek the requisite consent of those filmed before broadcast/publication.
- As a general rule, the minimum amount of deception should be employed in order to achieve the content's goal - the deception should be proportionate in all the circumstances.
- In both factual and entertainment content, if the person or organisation deceived is not identifiable, consent before broadcast/publication will not normally be necessary.
- The use of phone-hacking, email-hacking, accessing someone else's computers or data and other forms of unlawful interception of communications are breaches of the criminal law.
Any proposal which may potentially bring the content creator or a contributor into conflict with the criminal law or give rise to a threat of police action against the content, content creator or Channel 4 must immediately be discussed with your commissioning editor and content lawyer/compliance advisor.
Any use of subterfuge, deception or set-up situations must be approved in advance by your commissioning editor and content lawyer/compliance advisor both before the recording takes place and again before it is broadcast/published. Content creators should seek advice early.
See also: Secret filming guidelines
There may be rare occasions in factual content creating where there is justification for being less than totally honest and upfront with contributors. However, this is only likely to be acceptable where it is in the public interest and the material could not reasonably have been obtained through other means.
Many entertainment programmes/content involve some sort of deceit or 'setup' situation, where members of the public or celebrities are filmed without their knowledge (for example 'candid camera' type stunts) or are filmed for a purpose different to that which they agreed to. In many cases, there will not be any public interest in broadcasting/publishing the footage. For this reason, full consent should generally be obtained from the individual or organisation deceived, before the material is broadcast/published, that is the material may be filmed but cannot be broadcast/published without the informed consent of the subject.
Carefully consider the effect of the stunt in advance to determine if the individual's family, partner or friend should be consulted beforehand. They may be able to limit the chance of unforeseen circumstances arising and help you assess the risks associated with filming.
Ordinary members of the public vs. celebrities
As regards deception and setups, the Ofcom Code makes a distinction between ordinary members of the public and celebrities/people in the public eye. In relation to members of the public, content creators must obtain the informed consent of the person filmed before the footage can be broadcast/published (unless, of course, there is some public interest justification in broadcasting/publishing the material). However, with celebrities and people in the public eye, footage of them obtained through deception or misrepresentation can be broadcast without consent and without any public interest justification provided they have not been secretly filmed and as long as the filming is unlikely to result in "unjustified public ridicule" or "personal distress".
Aerial filming and photography and using remote-controlled multi-rotor UAVs (“Drones”) has become increasingly popular. However, the use of drones to film and the broadcast/publication of such footage does raise a number of potential legal issues, including but not limited to:
- the misuse of private information
- property owner rights
- compliance with the Information Commissioner’s Office (“ICO”) rules and data protection guidelines
- compliance with civil aviation legislation
Before any drone filming can be undertaken, all members of the production team are required to read and follow the Secret filming guidelines.
Content creators should always seek advice from the content lawyer/compliance advisor before attempting to film using drones.
Misuse of private information
What would amount to a misuse of private information would depend on where the drone was intended to be flown.
As a general rule, flying a drone in a public space such as a park is not likely to amount to a misuse of private information, provided individuals caught on camera are not identified or undertaking anything of a private nature, such as receiving medical treatment.
However, the courts have long recognised that individuals have the right to privacy over their home, and it is likely to amount to a misuse of private information if the drone is flown over a private residence where the images contain information that cannot be seen from the public highway and are more detailed than what you would see on a public satellite image such as Google Earth.
Please note, there must be a strong public interest justification for filming and broadcasting/publishing any footage which might infringe someone’s privacy, for example evidence of breaches of planning or the criminal law.
Commercial property does not attract the same privacy rights but there may be privacy concerns if there are employees or other staff on the property at the time.
If you believe you have a strong public interest justification for flying a drone over a private residence which may infringe the privacy of the owner, a secret filming Stage I application must be submitted to your content lawyer/compliance advisor for approval.
If the application is approved, the identities of the people inadvertently caught in shot would need to be disguised. Therefore, it is important that you get advice from your content lawyer/compliance advisor well in advance of filming.
See also: Secret filming guidelines
Property owner rights
There may be additional issues about property rights, including trespass and nuisance, with using drones.
A property owner owns airspace above their property which is generally accepted to be up to between 500 to 1000 feet, but this will depend on the property type and what is needed for the owner’s reasonable enjoyment of the property. If using a drone to fly over property, you would also have to consider what height this is done at to avoid any property, as well as privacy infringement, claims.
ICO rules and data protection guidelines
The ICO has issued guidance in its Data Protection Code for Surveillance Cameras and Personal Information which can be found here.
The ICO states that if the filming would capture images of individuals, arrangements should be made to ensure that filming only takes place at such a time and in such a manner to ensure that there is no chance of filming such individuals and thereby creating personal data in relation to them, without justification under the Data Protection Act. If individuals are inadvertently captured, they may need to be blurred in the edit.
Prior registration and permission from the Civil Aviation Authority (“CAA”) may need to be obtained to operate a drone (see also https://www.caa.co.uk/drones/).
Content creators should always seek advice from their content lawyer/compliance advisor before attempting to film using drones.
Recording telephone calls
It is generally accepted that content creators may record telephone calls without telling the person they are speaking to that the call is being recorded, for research or evidential purposes. However, if the call is being recorded with a view to it being broadcast/published, the following rules apply:
- Recorded telephone calls may be broadcast/published as long as, at the start of the call, the content creator has identified who they are (for example given the name of the person calling, the programme/content and broadcaster/publisher), explained the purpose of the call and stated that the call is being recorded for possible broadcast/publication. At this point, the person has the choice to terminate the call, so if they continue to talk, it may be assumed they have consented to the call being broadcast/published.
- Some or all of the above information may be withheld and the recorded call still broadcast/published if, in all the circumstances, it is warranted; for example, it's justified by the public interest (e.g. where possible criminal or otherwise disreputable conduct is involved). You should seek the prior approval of your commissioning editor or content lawyer/compliance advisor if you plan to do this.
- You may also record for evidential purposes only (and not for broadcast/publication) but please discuss this with your commissioning editor and content lawyer/compliance advisor before you record.
- If a call has been recorded and the other party was not told because, at the time, it was not intended for broadcast/publication but it later transpires the content creators do wish to broadcast/publish it, consent should be sought from the other party unless it is warranted to broadcast/publish the call without consent, for example it is justified by the public interest or the person is not reasonably identifiable.
- Unauthorised eavesdropping on communications using wireless telegraphy apparatus and/or the disclosure of information acquired in this way is a criminal offence – see the Wireless Telegraphy Act 2006.
If you plan to record a telephone call for broadcast/publication or for evidential purposes without informing the interviewee, seek approval from your commissioning editor or content lawyer/compliance advisor first.
See also: Secret filming guidelines
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