Fairness & Contributors
Contributors should normally take part in programmes on the basis of their informed consent, which is likely to involve providing contributors with all or some of the following information, at an appropriate stage:
- what the programme is about, that is the nature, format and subject matter of the programme;
- 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 programme 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 programme before transmission and to what extent they can suggest any changes to it (for example for factual accuracy); and those of the programme makers and broadcaster. Where appropriate this kind of information should normally be contained within the release form or in a letter or email.
- Be informed about potential risks arising from their participation in the programme which may affect their welfare (insofar as these can be reasonably anticipated at the time) and any steps the broadcaster and/or programme maker 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 programme and contribution. Clearly, a contributor whose appearance is trivial, for example a brief vox pop on a non-sensitive subject, will not expect or require as much information as an individual who has agreed to be interviewed at length to answer serious, potentially damaging allegations.
Sometimes programmes evolve and change during the production process. In these circumstances, contributors should be made aware of material changes if it might reasonably alter their decision to take part and cause unfairness. Such changes might include the title of the programme, if this is significant, changes to the timing and location of broadcast, or changes to other contributors. Where programmes have materially changed, programme-makers should seek advice from the legal and compliance department before re-approaching contributors.
Although it is not a requirement of the Code that any of the above information be provided to contributors in writing, in most cases, particularly where there is a significant contribution, programme-makers 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 programme, 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: ask the contributor on camera, "Do you consent to your contribution/interview being included in this programme, called [insert], about [insert] to be broadcast on one of Channel 4's channels and internationally in any media", and film their consent. If it has only been possible to obtain evidence of consent in this way or producers anticipate this will be the case, they should seek advice immediately from the programme lawyer.
In rare cases, producers 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 as soon as possible the commissioning editor and/or programme lawyer. A decision will then be made as to whether that contribution can be included in the broadcast programme.
Generally, contributors consent to being filmed and their contributions broadcast 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.
From time to time contributors may seek to place conditions on their contribution, for example the interview can only be used within one specific programme, or cannot be shown in a particular country. Programme-makers must be careful not to agree to any conditions they or the broadcaster may have difficulty honouring.
If a contributor places any condition on his/her contribution, which could have a material bearing on the content of the programme or its distribution or sale, this must be referred to the commissioning editor and/or programme lawyer for approval, before being agreed to.
Programme-makers must never offer or give any editorial control to a contributor or any third party.
Where a contribution is significant, that is, endures over a period of time or is likely to infringe the rights of the individual, for example privacy rights in reality television show formats, it will normally be necessary to agree with the contributor, before filming begins, the nature of the programme and contribution, the parameters of filming and broadcast and the detail of all other contractual rights and obligations of the parties, in the form of a detailed contributor agreement letter.
Duty Of Care
The updated Ofcom rules reflect the broader requirement in Section 7 which is to ensure that broadcasters avoid unjust or unfair treatment of individuals or organisation in programmes.
Section 7.3 relates to informed consent and includes the obligation that, where a person is invited to make a contribution to a programme (except when the subject matter is trivial or their participation minor) they should normally, at an appropriate stage:
- be informed about potential risks arising from their participation in the programme which may affect their welfare (insofar as these can be reasonably anticipated at the time) and any steps the broadcaster and/or programme maker intends to take to mitigate these.
Section 7.15 includes the obligation that broadcasters should take due care over the welfare of a contributor who might be at risk of significant harm as a result of taking part in a programme, except where the subject matter is trivial or their participation minor.
A contributor might be regarded as being at risk of significant harm as a result of taking part in a programme for reasons including (but not limited to) the following:
- they are considered a vulnerable person;
- they are not used to being in the public eye;
- the programme involves being filmed in an artificial or constructed environment;
- the programme is likely to attract a high level of press, media and social media interest;
- key editorial elements of the programme include potential confrontation, conflict, emotionally challenging situations; or
- the programme requires them to discuss, reveal, or engage with sensitive, life changing or private aspects of their lives.
“Vulnerable People” are defined by Ofcom in 8.22 of the Code as follows: This varies, but may include those with learning difficulties, those with mental health problems, the bereaved, people with brain damage or forms of dementia, people who have been traumatise or who are sick or terminally ill.
A risk assessment should be conducted to identify any risk of significant harm to the contributor, unless it is justified in the public interest not to do so.
The level of care due to the contributor will be proportionate to the level of risk associated with their participation in the programme.
When dealing with contributors who are under 18 please read and follow the Channel 4 Duty of Care Guidelines, Working and Filming with Under 18s Guidelines. You may also find it helpful to refer to our e-module on Factual Programming.
Consent & Children and Young People
If a contributor is under 16 years of age, programme-makers should normally obtain not only the consent of the child or young person, but also the consent of their parents. In particular, persons under 16 should not be asked for views on matters likely to be beyond their capacity to answer properly without such consent.
Where parents are estranged or divorced, it will normally suffice to obtain the consent of the parent with parental responsibility with which the child resides, depending on the circumstances of the individual case. However, in such circumstances, advice must always be sought from the programme lawyer.
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.
Even where a young person has reached 16 but not yet reached adulthood (18), it may still be appropriate to seek parental consent, depending on the particular circumstances of the young person in question and the nature of the programme and contribution. Seek advice from your programme lawyer.
If a child/young person is a ward of court or social services are involved, programme-makers should seek advice from the programme lawyer.
See 'Working and Filming with Under 18's Guidelines'.
Consent & 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. In particular, such individuals should not be asked about matters likely to be beyond their capacity or likely to put them at risk without such consent. It may be necessary to consult with the vulnerable adult's professional adviser, for example GP or psychotherapist.
Where a programme is edited, contributions should be edited fairly, that is they should not be edited in such a way that misrepresents what the contributor actually said or did, including by omission.
Requests for Anonymity
A contributor may agree to take part in a programme on the condition that his/her identity is not revealed. It is important for programme-makers 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.
Some contributors may not be clear about what level of disguise is necessary to ensure their identity is protected. Where this is the case and to avoid any misunderstanding, producers should assess the particular circumstances of the case before deciding what level of disguise is appropriate to protect the identity of the contributor. This should then be carefully explained to the individual so they fully understand and agree how they will appear in the programme and the level to which their identity will be protected. 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 programme as a whole achieves the required level of anonymity that has been agreed with the contributor.
Guarantees that are given to contributors, for example relating to programme content, confidentiality or anonymity should normally be honoured. Any deviation should be justified by the public interest or otherwise. Where conditions or guarantees have been stipulated, programme-makers should be clear about exactly what the contributor expects.
Deception & Set-Ups
There may be rare occasions in factual programme-making 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 (see 'Public Interest') and the material could not reasonably have been obtained through other means.
As a general rule, the minimum amount of deception should be employed in order to achieve the programme's goal - the deception should be proportionate in all the circumstances. Programme-makers must seek advice and approval from their commissioning editor and programme lawyer before undertaking any such activity. See also 'Surreptitious or Secret Filming'.
Many entertainment programmes involve some sort of deceit or 'set-up' 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 the footage. For this reason, full consent should generally be obtained from the individual or organisation deceived, before the material is broadcast, that is the material may be filmed but cannot be broadcast without the informed consent of the subject.
Consider carefully the effect of the stunt in advance to determine if the individual's family, partner or friend should be consulted beforehand in order to consider any unforeseen circumstances or to assess the risks associated with filming. [For celebrities/people in the public eye, see below].
Note: in both factual and entertainment programmes, if the person or organisation deceived is not identifiable, consent before broadcast will not normally be necessary.
Ordinary Members of the Public -v- Celebrities
As regards deception and set-ups the Code makes a distinction between ordinary members of the public and celebrities/people in the public eye. In relation to members of the public, broadcasters must obtain the informed consent of the person filmed before the footage can be broadcast (unless, of course, there is some public interest justification in broadcasting 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".
There may be no significant public interest in broadcasting an entertaining sequence showing a particular celebrity who has consented to being filmed but is unaware that they are being duped into endorsing some patently absurd, fictional, charitable cause. The sequence may make the celebrity look naïve, even stupid but so long as broadcasting the footage is unlikely to result in "unjustified public ridicule" or "personal distress" for the celebrity concerned, the footage can be shown. Any "public ridicule" might be justified on the basis that the celebrity in question should have known better. As to what might constitute "personal distress", this means something over and above mere annoyance or upset.
If the person duped was an ordinary member of the public, however, the footage could not be shown without consent or a public interest justification, regardless of whether the subject of filming should have known better or the likely effect on the subject of broadcasting the material in question.