Secret filming includes surreptitious recording of both visual and audio material.
No secret filming should take place unless this has been approved by Channel 4 in advance. Permission sought after filming/recording is unlikely to be granted, and only then in exceptional circumstances.
Content creators must complete (and Channel 4 must approve) a Stage 1 application before any secret filming or recording can be undertaken.
Before any secretly filmed/recorded material can be broadcast/published, a further (Stage 2) application must be completed by content creators and approved by Channel 4.
Please get your applications to us in good time (in the case of Stage 1 applications, preferably at least three working days before you want to film/record). Late applications run the risk of being rejected if there is no good reason for the delay in submitting them.
Different considerations apply when assessing whether secret filming/recording for entertainment purposes is justifiable.
In all cases, interception of audio/audiovisual calls or messages where you are not a party to the call or message ("phone hacking") is a breach of the criminal law and must not take place.
What is secret filming?
Secret filming includes:
filming or recording material using hidden cameras and/or microphones;
filming or recording material through cameras / microphones of which the subject is unaware eg. long lenses, small cameras, radio microphones, filming from across the street;
filming or recording a person with visible cameras/microphones, but it has not been made clear to them that the recording may be used for broadcast/publication;
continuing to film or record a person who believes the camera/microphone is switched off; and/or
recording telephone conversations for broadcast/publication without consent.
The Code defines "surreptitious filming or recording" as follows:
"Surreptitious filming or recording includes the use of long lenses or recording devices, as well as leaving an unattended camera or recording device on private property without the full and informed consent of the occupiers or their agent. It may also include recording telephone conversations without the knowledge of the other party, or deliberately continuing a recording when the other party thinks that it has come to an end."
In 4Compliance we use the term "secret filming" as a shorthand but it includes all covert or surreptitious filming or recording, both audio and/or visual.
The act of secret filming itself is an infringement of the privacy of the individual or organisation recorded. There will be an infringement of privacy both when the filming takes place and a separate, additional infringement if and when the material is broadcast/published.
All secret filming must comply with the relevant sections of the Ofcom Code. It must also be warranted, unless it is secret filming for entertainment purposes (see below) in which case separate provisions apply.
Secret filming is a formidable journalistic and investigative tool, generally used in factual content, to expose and evidence issues which are in the public interest. Material obtained covertly may be the only independent account of the wrongdoing it captures and has in some cases led to the revision of working practices, changes in the law, the closure of institutions and even sent criminals to prison.
As a powerful tool which is capable of invading individuals' privacy, secret filming must be undertaken responsibly and in accordance with best journalistic practice. Law-abiding individuals who have done nothing wrong are entitled to have their privacy respected. The right to privacy can only be overridden where the public interest outweighs it and any infringement of privacy must be warranted and proportionate. In addition, it is of paramount importance that Channel 4's viewers should be able to trust that what they see is true and justified – see 'Viewer trust'.
After broadcast/publication of content, material obtained covertly may become evidence in legal proceedings. The way in which such material is obtained must not, therefore, be open to criticism as to its authenticity or for the methods used to obtain it.
Procedures for secret filming
a) Other than in exceptional circumstances, content creators must give commissioning editors and content lawyers/compliance advisors at least 3 working days' notice of an intention to secretly film.
b) All secret filming will require permission in advance from Channel 4. A written application should be made to the Head of News and Current Affairs and copied to the Controller of Legal & Compliance at two crucial stages: (1) before it is undertaken; (2) before it is broadcast/published.
1. Seeking approval before filming (Stage 1 application)
Discuss your plans with your commissioning editor and content lawyer/compliance advisor. Your Stage 1 application should consider and set out how your proposals will meet the requirements of Section 8.13 of the Code, which states that the material acquired through secret filming must be "necessary to the credibility and authenticity" of a story which must itself be "prima facie in the public interest". In addition, there must be "reasonable grounds to suspect that further material evidence could be obtained" by secret filming/recording. In particular:
- Who is being filmed and why is there a public interest to the story? A public interest is not simply something of interest to the public. Your case must be logically argued.
- What evidence is there of wrong-doing? The purpose of the secret filming should not be a 'fishing expedition', there should already be some evidence which suggests behaviour or actions of the proposed subject that it is in the public interest to expose or uncover by secretly filming. There should also be reasonable grounds to suspect that secretly filming will reveal further material evidence.
- Why is secret filming necessary? Could the material reasonably be obtained through other means, for example by filming openly?
- Set out how the secret filming will be undertaken, including:
- Who will be operating the equipment and who will accompany them?
- What equipment will be used and where will the secret camera(s) be placed, e.g. in a jacket or in a bag?
- Where will filming take place and who will be present?
- What is the proposed cover story for the person undertaking the secret filming and any companion(s)?
- What arrangements have been made for the crew’s safety, where appropriate?
- Ensure arrangements are made for the person undertaking the secret filming to be briefed by the commissioning editor and Legal & Compliance lawyer/programme advisor before undertaking the secret filming.
The commissioning editor will submit the content creator's Stage 1 application to the Head of News and Current Affairs (copied to the Controller of Legal & Compliance). Content creators will be informed whether it has been approved and, if so, whether there are any conditions attached.
Each secretly filmed encounter requires a separate Stage 1 application, and any changes to approved secret filming plans must be notified to Channel 4 in writing, beforehand if possible, for further approval.
The requirement for a Stage 1 application will only be waived in exceptional circumstances.
A pro forma Stage 1 application can be found here and should be followed and completed with the guidance of the commissioning editor and the content lawyer/compliance advisor prior to being submitted for approval.
2. CONTENT CREATOR'S responsibilities once secret filming has been approved
- An adequate logging system for secretly filmed material must be set up which records:
- The date and time of filming;
- The location of filming;
- Who was filmed and who was present with the secret cameraperson;
- When the rushes were received at the content creator; and
- When the rushes were viewed by the producer and any other production personnel.
- Secretly filmed material and/or accurate transcripts should be made available to Channel 4 if requested at any time during production, before or after broadcast/publication, or in the event of any legal or regulatory issue arising.
- Original secretly filmed material and the logging system must be preserved for at least 18 months from the date of first broadcast/publication, or longer if required by Channel 4.
- Producers must log and view all secretly filmed material as soon as reasonably practicable, ideally no later than 24-48 hours after delivery to the content creator.
- The executive producer (or, if none, the most senior member of production) must view all relevant secretly filmed material, depending on the nature of the project and production personnel.
- The producer (and executive producer where applicable) must tell the commissioning editor and/or the content lawyer/compliance advisor promptly of any matter of concern of which they becomes aware.
- This includes:
- Any inappropriate behaviour by the secret cameraperson and/or their companions, for example, any attempt to provoke or improperly entrap the subject(s);
- Any matter suggesting someone's safety was put at risk (including the subjects of the secret filming);
- Any matter which suggests that the footage is not authentic;
- Any other matter which could have a bearing on the direction of the story and the content of the film; and
- In any of these circumstances, no further secret filming should take place until the previous secretly filmed material has been checked by the executive producer, unless there is a compelling reason why this cannot be done.
3. CONTENT CREATOR'S responsibilities in supervising secret filming
The content creator must ensure that:
- The person secretly filming is able to take on the tasks and responsibilities required of them. They must be familiar with the operation of the equipment and the risks involved. The safety of those undercover, and in many cases those with whom they interact, is paramount.
- The person secretly filming has been briefed by the commissioning editor and content lawyer/compliance advisor before undertaking the secret filming.
- They adequately supervise the person secretly filming throughout their research as well as throughout the undercover operation.
- If the person secretly filming is not an experienced audio visual journalist, before secret filming commences the producer must send the commissioning editor and the content lawyer/compliance advisor the following:
- A police check on whether the person secretly filming has any previous convictions, if considered appropriate e.g. if the undercover operation is likely to involve them in the technical commission of a criminal offence, such as buying drugs or handling stolen goods.
- A detailed CV;
- References, as appropriate;
- A written report on any existing relationship between the person secretly filming and the proposed subject(s) of the secret filming; and
- The proposed CV and details of referees for any undercover role, where applicable.
- If the journalistic purpose might involve the technical commission of a criminal offence, albeit without criminal intent, early advice should be obtained from the content lawyer/compliance advisor. Consider carefully what the public interest is in pursuing the proposed course of action.
- Any physical evidence obtained may well form the basis of a subsequent prosecution of the individuals whose criminality has been exposed and a protocol will need to be established to preserve its integrity as far as reasonably possible.
4. Rules of conduct for persons operating secret filming/ recording equipment
- The producer (and executive producer, where applicable) are individually and directly responsible for the conduct of the secret cameraperson and anyone accompanying them undercover, and for making them aware before filming commences that:
- A secret cameraperson and anyone accompanying them undercover will usually be playing a role which goes well beyond simple observation. In the process of interacting with the secretly filmed subject(s) they must be conscious of what they say and how they behave before, during and after the secret filming. In particular, they must take care to avoid as far as possible encouraging conduct which might not have occurred at all but for their intervention. A careful line must be trodden to avoid a subsequent accusation of improper entrapment.
- They must keep a detailed diary of their secret filming and all other meetings/conversations with the subject(s). This will form a contemporaneous record of their dealings with the subject(s) and/or a valuable evidential record if the camera (or other recording equipment) fails.
- They must agree their cover story with the content creator and Channel 4 beforehand to ensure that the level of any deception is proportionate.
- If a subject becomes aware they have been secretly filmed, Channel 4 must be notified as soon as reasonably practicable.
- If any payment is made by the person secretly filming (or their companions) to someone secretly filmed, this payment should be referred to Channel 4 and, if possible, approved in advance. Such a payment may affect the credibility of that person and it may be necessary to inform viewers about it.
In exceptional circumstances the person secretly filming may also be the source of the story and have a personal interest in it e.g. they are the alleged victim of the subject of the investigation. In such circumstances additional scrutiny and vigilance is required to corroborate the story.
5. Use of bodycams
In certain circumstances, bodycam footage may constitute surreptitious filming. If there is any intention to use footage obtained with body cameras, whether worn by third parties or the production team and whether or not owned by the content creator or otherwise then this must be referred to the Channel 4 commissioning editor and content lawyer/compliance advisor at the earliest opportunity.
6. Undercover in an organisation or company
If the person secretly filming or another person is going undercover and obtaining a position as an employee or similar position in a company or organisation, specific advice must be sought from the content lawyer/compliance advisor beforehand. In particular, the following rules must be followed:
- Any remuneration received from the company/organisation must be paid into an account set up for that purpose.
- The person going undercover must not purport to have qualifications or experience which they do not have where this might put them or others at risk or lead to legal problems.
- The content lawyer/compliance advisor must be consulted before application forms for such positions are filled in, letters and emails written etc.
- The content lawyer/compliance advisor must also see and approve the proposed CV and details of referees for the undercover role.
7. Before broadcast/PUBLICATION (Stage 2 application)
Later, if the secret filming is to be included in the content to be broadcast/published:
- When preparing a Stage 2 application, content creators must carefully evaluate the secretly filmed material.
- It can only be broadcast/published if it satisfies the requirements of sections 8.13 and 8.14 of the Code i.e. it must be "necessary to the credibility and authenticity" of a story which must itself be "prima facie in the public interest”.
- The commissioning editor will submit the completed Stage 2 application to the Head of News and Current Affairs, copied to the Controller of Legal & Compliance, and the content creator will be informed if the Stage 2 application has been approved. The footage can then be included in the content to be broadcast/published.
- Any unused material must be stored securely or destroyed and in accordance with the Data Protection Act 2018. See Producer Data Protection and Security Guidelines (GDPR).
- Secret filming undertaken independently by a third party (including CCTV footage in some cases) and provided to a content creator (e.g. footage filmed by a campaign group) may still require Stage 2 approval before it could be broadcast/published. As that secret filming would not have been undertaken under Channel 4’s rules and procedures, the content creator must carry out appropriate checks to establish the authenticity of the secret filming and take steps, where practicable, to independently corroborate the material. Specific advice must be sought from the content lawyer/compliance advisor.
- A pro forma Stage 2 application can be found here and should be followed and completed by the content creator with the guidance of the commissioning editor and content lawyer/compliance advisor before being submitted for approval.
8. After broadcast/publication
If the secret filming has revealed the commission of a criminal offence by the subject(s) of the secret filming, Channel 4 may volunteer the secretly filmed material and other material to the prosecuting authorities, subject to any confidentiality issues.
In these circumstances, it will usually be necessary for the police or other prosecuting authority to interview the person who undertook the secret filming and members of the production team about the methods they used. In addition to the diary they are required to keep, the person undertaking the secret filming should be made aware that their notes and other records may be considered relevant and that they may be a pivotal witness in any subsequent prosecution.
In the event of legal proceedings or regulatory issues arising after broadcast/publication all filmed/recorded material, and other material, will be central to our defence and so may be disclosed to the claimant (in the case of legal proceedings) or to Ofcom and possibly the complainant in the case of a regulatory issue.
Secret filming can be unpredictable with situations arising that need urgent attention. It is essential you maintain regular contact with your commissioning editor and feel free to call however trivial the question may seem at the time.
If you are in any doubt about anything set out here or require advice, please contact your commissioning editor and/or content lawyer/compliance advisor, as appropriate.
Telephone Tapping, Eavesdropping & Interception of Mail
The Investigatory Powers Act 2016 makes it a criminal offence to intentionally intercept communications by post, phone or other telecommunications systems. This would include intercepting voicemails on a mobile phone without lawful authority (phone hacking).
These laws do not affect journalists recording telephone conversations to which they are a party either for research purposes or with a view to broadcast/publication (although this may be secret recording and require a Stage 1 and Stage 2 application). But see regulatory provisions regarding privacy considerations 'Privacy'.
Accessing a computer without proper authorisation (computer hacking) is also a criminal offence – the Computer Misuse Act 1990.
Secret filming for entertainment purposes
Secret filming for entertainment purposes, where there is no public interest, can be undertaken where it is editorially justified as an integral part of the comedy/entertainment content (e.g. a 'candid camera' style programme) and it is unlikely to cause "significant annoyance, distress or embarrassment".
There are exceptions for pranks involving public figures and celebrities.
Care must be taken where individuals are to be secretly recorded for entertainment content within a live broadcast/publication and safeguards must be put in place in order to avoid offence and prevent unwarranted infringements of privacy.
Where a person filmed is unidentifiable, consent will not normally be required.
Where a subject who is being secretly filmed for entertainment purposes realises they are being secretly filmed and asks for filming to cease, this should be complied with.
Any proposal to secretly record someone for entertainment purposes must be approved in advance by the commissioning editor and content lawyer/compliance advisor and, in the case of live content, must be referred up in accordance with Channel 4's internal procedures for Reference Up and Compliance.
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