Editorial responsibility and reference up
This document is to highlight the main Legal and Compliance issues which may be relevant in the commissioning of Shorts.
Ofcom now oversees the regulation of on-demand content such as Shorts. The rules and guidance which providers of on-demand programme services must comply with are set out within Ofcom’s Rules and Guidance.
In summary, editorial responsibility is central to effective editorial, compliance and legal management. This means that if you are involved in commissioning, creating and/or publishing content on C4 online platforms, including external staff engaged by C4, the ultimate responsibility for the editorial decisions rests with you.
Whilst everyone working on Online content must take editorial responsibility for the decisions they make, the person who commissioned the content at Channel 4 takes primary responsibility. Crucially this includes making sure that all content you are responsible for has been subject to the appropriate level of editorial, compliance and legal scrutiny at appropriate stages.
With all Shorts please ensure a Lawyer within the Legal & Compliance department has been allocated and involved in the project from the start to ensure all the relevant legal and compliance issues are addressed early at the start of the project.
Online Commissioning Editors or Editors must liaise with all relevant individuals and departments e.g. programme commissioning, programme lawyers, press, marketing, social and other relevant colleagues during the planning and production of online material, to identify any potential risks.
Post launch, Online Commissioning Editors or Editors are responsible for continuing to liaise with those individuals or departments to monitor user comments and internet discussions, following the referral up process as and when necessary.
A. Legal Issues
There is a general misconception that the law does not apply to online content in the same way as it does to conventional platforms such as television. In fact, online content is subject to the current law in the same way as any other published content.
Libel or defamation may arise when something is said about an individual, or a company or its products/services, which would tend to make a reasonable person think less of them as a result. This may be an allegation that they have acted in a criminal way or, for example, that a person has lied or somehow acted dishonourably.
The elements required to establish an action for libel are:
- Defamatory statement or implication
- Identification of a person or company
- Publication of the statement
Libel cannot be avoided by merely omitting to say the name of the person or company, if there is a possibility that some people will be able to work out who is being referred to from the context and what else was said (‘jigsaw identification’). Simply adding the word “allegedly” to an otherwise defamatory statement provides no protection, and may make matters worse. Again, the fact that the allegations have also been previously published is no defence in itself.
There are a number of possible ways in which a potential libel could occur. It may occur when a contributor e.g. in a forum or in uploaded UGC content makes a defamatory statement about someone which has not been proven to be true or been admitted, such as:
- a particular person is e.g. a criminal, does drugs etc; or
- an allegation that a company has committed a crime e.g. been fraudulent; or
- an allegation that a particular person lied or was dishonest e.g. about their drinking problem
The main defence to a defamatory statement is proving it is true. Ultimately, this would involve convincing a court that you have evidence to prove that the meaning of what you said is actually true – an often very difficult, time-consuming and expensive task! The person who has been libelled does not have to prove that what was said was untrue – the burden of proof is on Channel 4.
It is essential that sources of potentially defamatory material can be relied on and are credible. Where a story has only appeared in one tabloid or on an obscure website and in no other media, then it is likely that it would be considered too high a risk to rely on that source in order to confidently publish online. However, if a story has been published widely or in more credible sources (e.g. broadsheets) or the material has been corroborated by credible witnesses, then the ability to prove the allegation is true is more likely, although care is always needed and advice should be sought.
Who is liable?
Channel 4 as publishers of the defamatory statement or implication will be legally responsible for anything that is said on its site irrespective of who originally made the comment or when the statement was downloaded. If you are in any doubt at all about potentially defamatory material, you must refer up to Legal & Compliance for advice.
Copyright is, in general terms, the protection given by law to the creator of a work for their lifetime plus 70 years. Creators do not have to register anything. The protection is automatic and gives the copyright owner control over the usage of their work and allows them to receive payment for the work.
Protected works include for example photographic, video and literary works , the later includes written or spoken words, emails, postings, translations, even dictionary definitions and lyrics. Reproduction of a whole work / article is not allowed – even if e.g. a message, credits the author.
Therefore, published material must not infringe any third party’s copyright or other rights, as we will, as the publisher, be liable for all content on our sites.
However, if a copyright issue arises we may be able to rely on any applicable collective commons licence agreement, insubstantial use and fair dealing defences. However, any copyright concerns must be discussed with Legal & Compliance well before publication in order to advise the best course of action.
3. Contempt of Court
Being in “contempt of court” is a criminal offence, punishable by imprisonment and/or a fine for the responsible person. The law relating to contempt exists primarily to prevent the prejudicing of criminal proceedings in this UK jurisdiction. The test is whether the publication concerned constitutes a “substantial risk of serious prejudice” to the criminal proceedings.
From the point that someone is arrested or charged with a criminal offence, the proceedings are said to be “active” or “sub-judice”. From that point, until such time as they are finally convicted or acquitted you have to be careful not to include anything that comments on or reflects on that person’s guilt or innocence, the proceedings themselves, or the evidence, witnesses or background circumstances to the case without having discussed it fully in advance with a Legal & Compliance lawyer in the first instance.
B. Regulatory issues
Some but not all of Online's activities are regulated by external regulators, in a similar way to the way in which content broadcast on television is regulated by Ofcom. For example, "television-like services" e.g. VOD, and some other online and mobile content, is subject to statutory regulation.
The Ofcom Broadcasting Code does not apply to online content. However, Channel 4 requires all online content to adhere to the same standards of good practice as our programmes. We therefore expect editorial staff and producers to have read and to apply the same principles set out in the Code to all our online content.
Set out below are some but not all of the key principles of the Ofcom Broadcasting Code which apply to Social. You should therefore ensure that you have read the Ofcom Code in full and you should seek guidance from the Legal & Compliance team as appropriate.
Social must “avoid unjust or unfair treatment of individuals or organisations”. There are two important issues to bear in mind when considering fairness:
- Am I dealing fairly with contributors and obtaining informed consent?
- Have I given proper consideration to the facts and is it necessary to allow someone the opportunity to respond to allegations or claims made about them?
When a person is invited to take part online, please ensure they are “informed”; this includes being informed of:
- the nature and purpose of this project and
- what kind of contribution they are expected to make and how it is to be used.
Fairness to 3rd parties
Sometimes a contributor may make some criticism or allegation about another person. On occasion, after careful consideration, it may be decided that there is insufficient evidence to include a particular allegation or criticism or it may be decided that it can only be included online if it is put directly to the person who is being criticised, in order to give him/her the opportunity to respond and refute what has been said. This will be difficult to do, especially online where we may be unable to contact the third party. Therefore, if this situation arises then this should be referred up to Legal & Compliance for advice.
If a particular allegation or criticism is made that you are aware has been published or broadcast by other media, it is often helpful to carry out research to establish whether the party being referred to has previously responded to the allegation. If so, it may be necessary to include reference to that response once it has been checked.
Remember that, just because an allegation has been published or broadcast in other media, this does not necessarily mean that you are free to include it online. In this situation, please seek advice from Legal & Compliance.
Any infringement of privacy online or in connection with obtaining material to be included online, must be ‘warranted’. This means we have to be able to demonstrate why any infringement of privacy is justified. Justification can either be that the individual has consented or that the public interest in its publication outweighs any potential privacy infringement.
Informed consent should always be obtained from a contributor for their contribution to be included online (see above).
Privacy of third parties
Privacy can be infringed in many ways: people may talk about people they know, particularly people close to them, such as friends and family. They may say things, online, about people they know which are of a private nature and which, if published, would constitute an unwarranted invasion of that person’s privacy. These people have not agreed to take part in this project and it could not, therefore, be argued that they had consented to information of a private nature being disclosed about them online.
Even a seemingly innocuous remark may constitute an unwarranted invasion of a person’s privacy. For example, a relative has cancer. Even though true, that person may not wish that to be public knowledge.
3. Harm and Offence
To enable users to make an informed choice as to whether to view published material and to protect the under 18’s, one of our key responsibilities is to inform users as to the nature of the content they are about to access, for example by having appropriate warnings boards, guidance notes and it may even require Content Access Control (“CAC”). This is particularly important as there is no watershed online, and material is available twenty four hours a day.
In particular, care must be taken with regard to:
Online content must not contain gratuitous offensive language. The word ‘Cunt’ should not appear anywhere online and nor should the word ‘Motherfucker’. Any reference to the word ‘Fuck’ and its derivatives online should generally be avoided, however, if it is editorially justified and approved for inclusion, then it must have a warning board (or warning ‘lozenge’, as appropriate) for “strong language” before the content is played and if necessary CAC. All other swear words should similarly be avoided e.g. bastard, wanker, bollocks, shit, shag, arsehole, prick but may be acceptable compliance-wise in the right context and with an appropriate warning board etc. Amending written offensive language by replacing letters with asterisks does not always render it inoffensive and advice should be sought. Please consult with Legal & Compliance to discuss protecting the under 18s from offensive language and the level of access restriction required.
b. Sexual Innuendo/Crudity
Whilst a limited amount of innuendo and suggestive references may be editorially justifiable online, even if a particular remark of itself might be acceptable, regard must be had to the ‘cumulative effect’ of a number of such references.
c. Discriminatory Treatment (for example on the grounds of age, disability, gender, race, religion, beliefs and sexual orientation)
Publishing any discriminatory term or jokes should be avoided unless there is strong editorial justification to include them (this also includes insensitive comments or stereotyped portrayals of minority groups).
Care also needs to be exercised in relation to comments about people with disabilities and illnesses, or other minorities, particularly where there is the danger of offence e.g. a bad taste joke at the expense of people with a particular illness. The use of humour based on physical, mental or sensory disability, even where no malice is present, is likely to be problematic.
d. Smoking, Drinking and Drug References
The use of illegal drugs, the abuse of drugs, smoking, solvent abuse and the misuse of alcohol, must generally be avoided and in any case must not be condoned, encouraged or glamorised.
Therefore any inclusion of smoking, drinking and drug references should generally be avoided but may be editorially justified in the right context e.g. as part of a debate about the legalisation of a drug.
e. Dangerous/Imitative Behaviour
Dangerous and imitable behaviour e.g. images of playing with knives, should generally be avoided but again may be editorially justified in the right context.
Content containing violence, threats of or discussions of violence may be editorially justified in the right context. However, its suitability must be discussed with Legal & Compliance at the start of the project.
g. Undue prominence
Undue prominence should not be given to any commercial product or service, including those produced by Channel 4. This does not mean that there can be no commercial references. The key principle is to ensure that the independence of editorial control over content is maintained and that published material is not distorted for commercial purposes.
h. Sponsorship and Product Placement
Care needs to be taken when commissioning advertiser funded shorts. This means that there must be no promotional references to the sponsor, whether visual or verbal, within the Shorts. Any non-promotional references would amount to product placement and must be editorially justified. If the sponsor is an HFSS, alcohol or gambling brand there must be NO visual or verbal reference to them at all as product placement is not permitted for those products. Any sponsorship and/or product placement deal must be discussed in advance with the Online Commissioning Editor or Editor and the allocated legal & compliance Lawyer.
C. Channel 4 Producers Handbook
The Handbook sets out Channel 4’s best practice editorial and compliance procedures and all staff and producers working with Channel 4 must read and comply with it. The handbook also includes a number of best practice guidelines which set out best practice and these include but are not limited to:
- Working and Filming with Under 18’s
- Fair Dealing
- Factual Guidelines
- Secret Filming
- Hostile Filming
D. Other relevant guidelines
- Social Media Guidelines for contributors - Tips for programme contributors on how to interact with online communities.
- Publishing social media comments on air and online - Channel 4 has set its own guidelines, which apply to all independent production companies working on any Channel 4 published content on-air or online that includes on-screen Tweets, Facebook comments and/or Instagram posts