- In most circumstances, explicit and informed consent should be gained from contributors in content.
- Evidence of consent is normally demonstrated via a signed release form.
- Additional rules around consent apply for contributors who are under 18 or are vulnerable adults.If a contributor or source requests anonymity, you should always refer up to the Legal & Compliance department before making any guarantees.
- Do not make assumptions about the level of disguise an anonymous source will require: discuss this with them and record their consent.
Most contributors take part in content on the basis of their informed consent. Often, as part of that consent, contributors agree to their privacy being infringed in some way, for example when they agree to have a camera pointed at them, allow cameras into their homes or, in the case of some reality shows, agree to be filmed 24 hours a day.
Informed consent means that a contributor has an appropriate amount of information about the content in which they are to appear to allow them to make an informed decision as to whether they want to appear in that content or not.
Some contributors may consent to take part in content but place conditions on their contribution, for example they wish to remain anonymous. It is important that content creators do not agree to conditions that they or Channel 4 may have difficulty in complying with. In addition, where conditions in relation to a contribution are agreed, it is vitally important that all parties are clear about the exact nature of the condition.
When is explicit consent not necessary?
As noted above, contributors should normally take part in content on the basis of their informed consent and, in most cases, should sign a release form evidencing their consent.
However, there will be situations, particularly when shooting on location, where individuals other than the main contributors will inadvertently be caught on camera. If explicit consent needs to be obtained from these individuals will depend on a number of factors, including: the location of the filming, the activity caught on camera, the age of the individual and whether or not the individual has a public profile or not.
Informed consent is likely to involve providing contributors with all or some of the following information, at an appropriate stage:
- what the content is about, including the nature, format and subject matter of the content;
- why the contributor is being asked to contribute and the way in which the contribution is likely to be included;
- whether their contribution will be live, pre-recorded, edited or unedited;
- where and when (if known) the content is likely to be shown for the first time;
- an outline of the areas of questioning and the nature of other likely contributions, if it would be unfair not to give this information;
- their contractual rights and obligations, for example whether or not they will have the right to view the content before transmission/publication and to what extent they can suggest any changes to it (for example for factual accuracy). Where appropriate this kind of information should normally be contained within the release form or in a letter or email;
- the potential risks arising from their participation in the content which may affect their welfare and any steps Channel 4 and/or content creatorr intends to take to mitigate these.
Exactly what information needs to be provided to contributors depends on the circumstances of each case and the nature of the content and contribution. Clearly, a contributor whose appearance is trivial, will not expect or require as much information as an individual who has agreed to be interviewed about intimate details of their private life.
Sometimes content evolves and changes during the production process. In these circumstances, contributors should be made aware of material changes if it might alter their decision to take part and/or cause unfairness. Such changes might include the focus of the content, changes to the timing and location of broadcast/publication, or changes to other contributors. Where content has materially changed, content creators should seek advice from their content lawyer/compliance advisor before re-approaching contributors.
If you plan to advertise for contributors (which includes call outs on social media, leaflets and notices), the wording of any advert must be approved by your commissioning editor and content lawyer/compliance advisor
It is important that from the outset there is an agreed content description, approved by your commissioning editor and content lawyer/compliance advisor.
- The content description should be incorporated into all release forms and should be referred to in most conversations or email correspondence with potential contributors. The use of a consistent content description for each and every contributor to content will ensure that all individuals have given their informed consent.
- You should be as clear as reasonably possible with people and /or institutions you approach for a contribution or interview, about the nature and purpose of the content, the kind of contribution they are expected to make and the areas of questioning where applicable. Any release form or access agreement, should fairly reflect the nature and purpose of the content and any early content title should be marked 'working title'.
All access agreements should be approved by your commissioning editor and content lawyer/compliance advisor before sign off.
In some circumstances it may be necessary to withhold some information about the proposed content where there is a good reason e.g. to do so would be in the public interest. If there is a proper reason to be indirect (e.g. you are dealing with a criminal) then talk to your commissioning editor and content lawyer/compliance advisor about it first. You may be required to tell an interviewee the identity and role of other proposed participants, where known.
- Content creators should be mindful that some contributors’ first language may not be English and/or their literacy may be poor, so alternative methods of securing informed consent should be considered e.g. having releases translated or recording consent on camera by explaining the nature and purpose of the content and their contribution. Equally if individuals are unable to give informed consent e.g. they are intoxicated, unconscious or they don’t have mental capacity, then steps must be taken when they can give such consent, as soon as reasonably practicable. Alternatively it may be possible to secure informed consent on their behalf from an appropriate adult e.g. next of kin or doctor as appropriate.
In the case of contentious or controversial content, you are required to send letters to your most important interviewees and contributors to both your commissioning editor and content lawyer/compliance advisor for approval before you send them to the interviewee. The producer or executive producer should first approve such letters.
- In every case you should ensure that all contributors have a consistent and up to date outline of the content when their contribution is sought.
- If the focus of content changes as content develops and this might reasonably affect a contributor's original consent to participate, you must explain the change of direction to the contributor to ensure that you still have their informed consent.
See also: Deception & setups
Although it is not a requirement of the Ofcom Code that any of the above information be provided to contributors in writing, in most cases content creators should obtain evidence of the contributor's informed consent in writing. Normally this will be in the form of a signed release form which describes the content, contribution and sets out the contractual rights and obligations of the parties.
In some cases, it may not be practical to obtain a signed release form, in which case evidence of informed consent should be obtained on camera. If it has only been possible to obtain evidence of consent in this way or content creators anticipate this will be the case, they should seek advice immediately from their content lawyer/compliance advisor.
In rare cases, content creators may not be able to obtain either a signed release form or have time or the ability to record consent on camera. Wherever this is the case, you must alert the commissioning editor and/or content lawyer/compliance advisor as soon as possible. A decision will then be made as to whether that contribution can be included in the content to be broadcast/published.
Generally, contributors’ consent to being filmed and their contributions broadcast/published when they agree to be filmed, on the basis of the information they have been given. Release forms do not constitute the consent itself but, rather, are merely evidence of consent having been given. To avoid confusion, it may be sensible to ask contributors to sign their release forms before filming takes place.
Content creators must never offer or give any editorial control to a contributor or any third party.
Consent and under-18s
When dealing with children under the age of 18 different consent requirements apply. The people from whom consent is necessary will vary depending on the age and circumstances of the child. Channel 4 and content creators have an obligation to take due care over the welfare and dignity of children under 18.
It is important, therefore, that the commissioning editor and content creators form their own judgements as to whether participation is appropriate and do not rely solely on the judgement of the child or young person and/or their parents or guardians.
Consideration should be given to whether an independent expert should be consulted.
Content creators must verify the age of young contributors, as some children may appear older than they are. Do not simply take their word or that of their parents; a passport or some other official photo identification should normally be checked and a copy taken (unless in the circumstances it is justified not to do so).
See also: Filming with under-18s
Consent and under-16s
- If a contributor is under 16, in addition to obtaining their consent to take part (if appropriate in all the circumstances), you should also obtain consent from their parents or guardians, or other person aged 18 or over with legal responsibility. Ideally, both parents’ consents should be sought for the under-16’s contribution, or from those who have ‘parental responsibility’. This may not always be possible or practicable. If an under-16’s parents are divorced or separated, parental consent should, in the first instance, be sought from the parent the child resides with and anyone who has ‘parental responsibility’.
- If a child’s or young person’s parents are dead or are not involved in the upbringing of the child, consent should be sought from the adult with legal responsibility for the child’s welfare.
- Parental consent should normally be obtained before filming an under-16, especially where the subject matter of the filming/content is sensitive and/or potentially controversial. Persons under 16 should not be asked for views on matters likely to be beyond their capacity to answer properly without such consent.
If this is not practicable or desirable, you must take advice from your commissioning editor and content lawyer/compliance advisor at the earliest opportunity.
- There may be very rare occasions where parental consent for an under-16's contribution is deemed unnecessary e.g. a Vox pop situation, where the subject matter of the content is uncontroversial and is not of a sensitive nature. The age and understanding of the under-16, the subject matter of the content and the extent and nature of the under-16’s participation will all be relevant when deciding whether parental consent is necessary.
Content creators must seek advice from their content lawyer/compliance advisor wherever any under-16 is included in content without parental consent.
Content dealing with an under-16 (or indeed an under-18) person who is the subject of a care order, is a ward of court or is being adopted raise more complicated legal issues (and may mean identification of your contributor in the content will be a problem) and will require considered and detailed advice from your content lawyer/compliance advisor at the earliest stage
Consents and 16- and 17-year-olds
16 and 17-year-olds are able to give their own consent to participate in many circumstances. However, if the proposed participant is still at home and/or still in education content creators should normally also obtain parental consent.
If content creators wish to (or must) proceed on the basis of consent from the young person alone, please refer to your commissioning editor and content lawyer/compliance advisor for advice at the earliest stage.
Informed consent and under-18s
- As with any contributor, to be able to consent or agree to contribute, the under-18 and/or those who have parental responsibility for them (if their consent is required) must properly understand the nature of the content they are considering contributing to and their role within it.
- From the start, there should be an easy to understand description of the content and the contributor's role. Explanations given to an under-18 should be appropriate to the young person's age, maturity and ability to understand. It may also be appropriate to give this information in writing, orally or visually.
- Depending on the circumstances, it will usually be appropriate to explain to young people both the positive and negative likely consequences of their involvement in content. The delivery of clear information on likely outcomes is considered by Ofcom to be a core element of "due care". There may be rare circumstances where it is not appropriate to highlight the likely positive and negative consequences directly to the person under 18. In these circumstances Ofcom does advise that potential outcomes should be made clear to the parents or guardians. How this information should be communicated is something which should be discussed with legal your content lawyer/compliance advisor. In most situations a record (documented or filmed as appropriate) of this information should be kept.
- It is important that neither the person under 18 nor his/her parents or guardians (if their consent is required) feel pressured into giving consent. They should always be given sufficient time to think about their decision to take part and discuss it with others should they so wish.
- Content creators should make it clear to under-18 participants that they can say 'yes' or 'no' to filming at any time and that the choice is theirs. It is recognised that some children and young people find it difficult to say 'no' to an adult (whether their parent or another), so content creators should look out for non-verbal indications that they are unhappy with the situation.
- With children who lack the maturity or capacity to make decisions for themselves, content creators in consultation with the commissioning editor and content lawyer/compliance advisor should ask themselves if there is a need for independent expert advice to form a view as to their suitability as contributors.
- Where English is not the child's and/or parents' first language, steps must be taken to ensure that the contributor agreement or any release form is accurately translated into their first language. Where appropriate, it may also be necessary to use a competent translator to communicate with the child and/or parents.
- Once consent has been given and where filming continues over a period of time, content creators should check at regular intervals during the production that the young person is still happy about continuing to take part. Ideally, their continued consent to participate should be documented on camera.
Consents when filming in schools
- Prior consent to film in a school must be obtained in writing from the Head Teacher.
When filming over long periods at a school, it may be advisable for content creators to have a letter of agreement or letter of intent with the school setting out the content creator’s obligations, together with a protocol for filming. Indeed, this may be necessary to secure access in the first place and to provide comfort to parents, governors and the Local Education Authority. Content creators should discuss this with the commissioning editor their content lawyer/compliance advisor.
Depending on the nature of the filming content creators may need to inform all of the schoolchildren's parents that the filming is taking place, whether or not their child is to be included within the content. Content creators should discuss this with the Head Teacher, the commissioning editor and their content lawyer/compliance advisor.
- Irrespective of the Head Teacher's general consent to film within the school, if a person under 18 actively participates content creators should obtain, signed consent forms from them and those who have parental responsibility for them prior to filming.
- Normally clear notices should be put up at the school gates and in the school on the days that filming is taking place. The notices should make clear the times and areas where filming will take place and should include a brief description of the project as well as a production contact name and number. This may be a condition of the access agreement.
- In schools where there are significant numbers of children for whom English is not their first language, content creators should ensure that correspondence and notices are translated. Schools and Local Education Authorities often have their own translators.
Consent and vulnerable adults
In the case of people over 16 who are unable to give informed consent, for example because of disability, consent should be given on their behalf by the adult who has primary care and responsibility for that person. Such individuals should not be asked about matters likely to be beyond their capacity or likely to put them at risk unless appropriate consent has been obtained. Even then consideration should be given to the appropriateness of interactions with vulnerable contributors. It may be necessary to consult with the vulnerable adult's professional adviser, for example GP or psychotherapist.
Working with anonymous sources and protection of sources
All conditions of anonymity must be discussed with your commissioning editor and content lawyer/compliance advisor before they are agreed with the source.
There are occasions where content may rely on evidence or testimony of a source. The weight to be attached to that source will depend on their credibility, motive and the extent to which the information they give can be corroborated.
It is the content creators responsibility to take appropriate steps to interrogate the credibility of the source, especially where they have asked to be anonymous.
Undertakings of anonymity
If the source is seeking an unqualified undertaking that ultimately might bring the content creators into conflict with the law and they are expecting Channel 4 to be bound by the undertaking, this must be referred up internally at Channel 4 to the Chief Executive as the editor-in-chief and ultimately to the Channel 4 Board for approval.
If any undertaking is given to a source by a content creator, once it appears that such an undertaking may also become binding on Channel 4, content creators must immediately notify the commissioning editor who will consult with the content lawyer/compliance advisor and, if necessary, refer the matter up in accordance with Channel 4's internal compliance procedures.
Requests for anonymity
A contributor may agree to take part in content on the condition that their identity is not revealed. Content creators should ensure that they are clear as to what conditions are being sought: do not assume that a source always wants blanket anonymity.
It is important for content creators to have a clear agreement with the contributor about how they will appear and the level of disguise required. For example, one contributor may be happy simply for his name not to be given and his face not to be shown, whilst another may require her image and voice to be changed to such an extent that she would be unidentifiable even to her close family.
Content creators should ensure that whatever conditions are agreed they are recorded to avoid dispute later.
Some contributors may not be clear about what level of disguise is necessary to ensure their identity is protected. Where this is the case content creators should assess the particular circumstances of the case before deciding what level of disguise is appropriate. This should then be carefully explained to the individual so they fully understand and agree how they will appear in the content. If possible discuss this on camera with the contributor and even show them how they will appear.
A person's identity may be revealed just as easily by what they (or others) say, as by how they look or sound, so it is vitally important that the final content as a whole achieves the required level of anonymity that has been agreed with the contributor.
Protections for journalists and their sources
Section 10 Contempt of Court Act 1981 provides some protection for journalists and their sources. It states that no court shall require anyone to disclose a source of information unless necessary in the interests of justice, national security or the prevention of disorder or crime. Whether any particular circumstances warrant disclosure is ultimately for the court to decide, taking into consideration the Human Rights Act 1998 and, in particular, the right to freedom of expression. The courts have held that disclosure orders should be made only in exceptional circumstances and where disclosure is justified by an overriding public interest.
Although Section 7 of the NUJ Code states that a journalist "protects the identity of sources who supply information in confidence and material gathered in the course of her/his work", the law does not give an unqualified right to journalists not to divulge sources, as it does to lawyers regarding their client's affairs. The Court's ruling in a 1992 case concerning Prevention of Terrorism legislation was that journalists should not give unqualified undertakings to their sources that they will never disclose their identity but should (and properly only could) pledge not to disclose unless ordered to do so by a court. To do otherwise would be to pledge to commit contempt, a criminal offence.
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