The extent to which contributors waive their rights to privacy when consenting to take part in programmes clearly depends on the nature of the contribution. However, it should always be made clear to potential contributors before they agree to take part the extent to which filming will or is likely to infringe upon their privacy.
When is Explicit Consent Necessary?
As noted above, contributors should normally take part in programmes 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. The question then arises whether or not there is an obligation to seek the explicit consent of those filmed, as an individual's privacy could be infringed by being filmed in certain circumstances and broadcasting that footage may be a further and separate infringement. This will generally depend on a number of factors including: the location where the filming takes place; the nature of what is caught on camera, that is the actions, behaviour or words that are recorded; and, sometimes, who the individual concerned is, for example whether they're a member of the public or someone in the public eye.
Filming in Public and Semi-Public Places
When filming in public places, for example on the streets, in parks, on public highways, and semi-public places, for example shops, bars, institutions, programme-makers are only likely to need to obtain the express consent of those that make a significant contribution - those that the camera is following or that speak to camera, or whose words are caught on camera, unless what they say is trivial and inconsequential. Generally, you will not need to obtain the express consent of random people that are merely passing by or who are caught on camera in the background, unless they are to be shown in a negative or pejorative context, thereby requiring consent or the concealing of identities, for example by pixilation.
However, there will be circumstances where individuals, even in public places, have a legitimate expectation of privacy, for example when they are in distress or receiving medical treatment, and to film and, further, to broadcast such footage would amount to an unwarranted infringement of their privacy. In such circumstances, in the absence of any public interest justification, it is unlikely that the footage could be broadcast without the express consent of those filmed or their identity being obscured.
If an individual's or organisation's privacy is being infringed by filming and they ask that filming or recording stop, film-makers should normally comply, unless it is warranted to continue, for example it is in the public interest.
When filming on private property, even where it is open to the public, for example shops, bars, shopping malls, programme-makers should, wherever possible, first obtain the consent of the legal owner or person in charge of the location to film there, unless there is justification for not doing so. Often consent may be granted but subject to certain conditions, for example seeking the individual consent of staff or members of the public caught on camera, which if agreed to should be honoured.
When filming on private property, if the owner or person in charge requests that filming stop, this should normally be complied with unless there is good reason not to, for example the public interest justifies continuing. Where this occurs, inform the programme lawyer as soon as possible thereafter as a trespass may have been committed.
In some semi-public places, where there is a greater expectation of privacy and particularly where people may not wish to be caught on camera, for example doctors' waiting rooms, it may be appropriate (and it may be a condition of filming there) to alert members of the public to the fact that filming is taking place, for example by erecting a sign (or making an announcement) stating that filming is taking place, explaining briefly what the programme is about and advising anyone that does not wish to be filmed to avoid the camera or alert a member of the production team.
Filming in sensitive places, for example in hospital wards, ambulances, A&Es, schools, prisons, police stations etc., (unless undercover in which case see 'Deception and Set-Ups', and 'Surreptitious or Secret Filming') is only likely to be possible after negotiation with the person or organisation in charge of the location in question. However, even where consent is granted, careful consideration must be given to the individual fairness and privacy rights of those that may be filmed. The fact that general permission to film has been given does not mean that individuals have consented to being filmed and that footage can be broadcast. Depending on the circumstances, it may be that alerting individuals or members of the public through the use of signs or announcements will suffice but, in certain circumstances, where there is a greater expectation of privacy, it may be appropriate or even essential to seek the individual consent of each and every person shown (or if that is not possible conceal their identities on broadcast).
Wherever there is an intention to film in a sensitive place or there is doubt about whether or not individual consents are required, please seek early advice from the programme lawyer.
If a programme is of a sensitive nature, clearly contributors will need to be made aware of the context in which they will appear, for example if a programme is about 'date rape', those filmed should be informed when they are giving consent.
You are filming with a group of young men as they visit city centre bars on a Friday night. All of the group are filmed extensively together and interacting with others. The filming is unplanned and you don't know where they are going next. What consents are you likely to need?
You will need the express consent of all the members of your main group, preferably in the form of a signed release form. If they meet up with any other friends who tag along, it is likely you will need to obtain their express consent too, as they are likely to be filmed extensively.
The group interacts with some passing girls on the street, chatting them up.
If the exchange is fleeting you probably will not need the girls' express consent as long as you are filming openly. If the exchange is more prolonged or is of a more private or sensitive nature, for example sexual, then express consent is likely to be advisable, either in a release form or consent on camera.
People seeing the camera come up and shout into camera, some make rude gestures.
In the majority of such cases, you would not need express consent, as you are filming in a public place and they have knowingly put themselves in the position of being filmed.
The group enter a bar or a fast food takeaway restaurant. Can you film inside?
You should first try to obtain consent to film from the owner or person in charge. If they refuse, then you cannot film inside but you could continue to film outside. If you are able to film inside, try to obtain the explicit consent of anyone you film speaking to camera or of those whose words are caught on camera, unless what they say is trivial. As noted above, you are unlikely to need to obtain express consent from those in the background as long as you are filming openly and there are no particular sensitivities involved.
If the filming had been planned in advance, it would be advisable to contact locations in advance to clear all filming. In addition, this sort of filming might be the sort that would favour seeking consents on camera, rather than trying to get people to sign release forms.
Note that if any of the contributors are under 16 (and sometimes under 18), parental consent is normally also likely to be required.
The Involvement of Under 18s in Programmes Generally
The Code states that due care must be taken over "the physical and emotional welfare and the dignity of people under 18" who take part in or are otherwise involved in programmes, irrespective of parental or other consent and that they must not be caused "unnecessary distress or anxiety by their involvement in programmes or by the broadcast of those programmes".
In other words, just because parents may be willing to allow their child to take part in a particular programme, in a particular way, does not absolve the programme-makers and broadcaster from their responsibility to ensure that those under 18 are not put at unnecessary risk and do not suffer harm as a result of taking part in programmes.
Ofcom Guidance on the Participation of Under 18s in Programmes
Following widespread consultation, Ofcom has published guidance to broadcasters about the participation of young people in programmes, to help ensure that their welfare "... is at the heart of editorial and production decisions". The guidance in full can found on Ofcom's website. It reflects already established protocols and procedures put in place by Channel 4 when commissioning programmes featuring young people.
As with other guidance Ofcom publishes in relation to the Code, the guidance does not itself form a set of rules which broadcasters are obliged to follow. In its own words: "... this guidance is non-binding. It is provided to assist broadcasters interpret and apply the Broadcasting Code ... Every complaint or case will be dealt with on a case by case basis according to the individual facts of the case". However, when deciding whether the Code has been breached in relation to the participation of under 18s within programmes, Ofcom will consider whether this guidance is relevant and, if it is, will look to see whether the guidance has been followed and, if it has not, will consider why not.
It is important that wherever under 18s are to feature prominently within programmes, particularly where their participation may involve a significant infringement of privacy, or where the subject matter of the programme or contribution could be deemed to be sensitive, that early advice is sought from the programme lawyer. See 'Working and Filming with Under 18s Guidelines'.
Privacy of People Under 16
Broadcasters are required to pay particular regard to the privacy of people under 16 (see section 8 of the Code), whether they are a contributor to a programme or not. They do not lose their rights to privacy because of who their parents are, in other words the child of a very famous celebrity should be accorded the same rights to privacy as the child of an ordinary member of the public, unless the child has courted publicity or is a celebrity in his/her own right.
Unless it is warranted to proceed otherwise, parental consent must be sought where an individual under 16 is featured in a programme in a way that infringes his/her privacy. The explicit consent of the individual concerned should also be obtained where possible.
Ideally, both parents' consents should be sought for the child's contribution. However, this will not always be possible or practicable. If a young person's parents are divorced or separated, parental consent should, in the first instance, be sought from the parent the child resides with and who has ‘parental responsibility'. As to whether or not consent should be sought from the other parent as well, seek advice from the programme lawyer. Child performance licences, issued by the local authority where the child resides, may also be required. See 'Child Performance Licences'.
The same principles apply to vulnerable people- consent to film and broadcast a vulnerable person should be sought from that person's primary adult carer.
Furthermore, people under 16 should not normally be asked questions about private matters without the consent of one of their parents or guardian; or, in the case of a vulnerable person, without the consent of their primary adult carer, unless it is warranted to proceed without such consent.
The Code contains a specific provision that prizes aimed at children in competitions must be appropriate to the age range of both the target audience and the participants. This rule exists to prevent children being placed under an inappropriate amount of stress, for example young children competing to win large cash prizes for their parents. See also 'Sponsorship', and 'Commercial References Within Competitions'.