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As a general rule, programme makers should not rely on a third party to obtain consent from a contributor to a programme. Where a broadcast might unwarrantably infringe an individual’s privacy, the broadcaster must take all reasonable steps to obtain that individual’s informed consent before broadcast.
A recent Ofcom adjudication highlights this principle. It concerned a complaint made by an individual featured in an episode of Car Wars, which was broadcast in November 2007. The individual complained that the making and broadcast of the programme unwarrantably infringed his privacy, as well as the privacy of his wife and son.
Ofcom’s decision makes clear that, while it may be appropriate in certain circumstances for a programme maker to film first and to seek permission later, the informed consent of each contributor should be obtained before that footage is then broadcast.
The programme
The programme featured an incident in which some youths had allegedly tried to steal the complainant’s car from his driveway. The complainant and his wife (referred to in Ofcom’s adjudication as Mr and Mrs C) were shown standing outside their house at night a short while after the incident, and the programme included footage of the front of their house, their driveway and their car. The car’s licence plate was not discernible, but the programme referred to the colour and make of the car and the area in which the complainant’s house was located. In addition, the number of another house and the name of the road on which the complainant and his family lived were audible in the programme.
The complaint
Mr C complained that his privacy and that of his wife and child was unwarrantably infringed in the making and broadcast of the programme. He said that, although he and his wife had been aware of a camera, they had assumed that it was being used for police training purposes. Mr C added that they had only become aware of the extent of the events filmed and the fact that people had been arrested for the alleged theft of their car when the programme was broadcast 15 months later.
Mr C noted that the programme showed him in full, showed his wife standing by the front door in her dressing-gown and included footage of their car and house. He considered that the way in which he and his wife were included in the programme made their child identifiable, so the broadcast also unwarrantably infringed their child’s privacy.
The BBC’s response
The BBC said that its camera operator had worked alone and that, in order to maintain continuity of filming, his normal practice was to start filming as soon as he arrived at a location and to obtain consent afterwards, or to stop filming if he was asked to do so. On this occasion, the police officers had quickly left to find the suspects who had allegedly tried to steal Mr C’s car. Because the camera operator had gone with them, he did not have the opportunity to obtain consent from Mr C and his family personally. The BBC maintained, however, that two of the police officers involved in the incident had spoken to Mr C and obtained his clear and informed consent to the filming, which was later conveyed to the camera operator.
The BBC said that the police had also, on the producer’s behalf, obtained Mr C’s consent to the broadcast of the footage. The police recalled that Mr C was familiar with the Car Wars programme and considered that the terms in which they had obtained his consent had made it quite clear that the footage was to be included in that programme.
The BBC did not consider that the broadcast of the footage had breached Mr C’s privacy or that of his wife, who the BBC noted was seen very fleetingly in one of the opening shots of the sequence. The BBC believed that, because Mr C had consented to the filming, the privacy of his son could not have been breached. The BBC also argued that no information in the broadcast was supplied that would render Mr C identifiable to anyone who did not already know him.
Ofcom’s decision – making of the programme
Ofcom considered that Mr and Mrs C were filmed while in a sensitive situation (i.e. when they were potential victims of a crime), and that the footage recorded included material of a private nature. It found that they had a legitimate expectation of privacy in these circumstances, and that the filming had intruded on their personal and family life.
Ofcom said that, while it appeared that at least one police officer had spoken to Mr C about the filming, it was not clear at what point this conversation had taken place. It was also not clear what information the police officers had given to Mr C about the purpose of the filming or how any footage of Mr and Mrs C might be used. Taking these factors into account, Ofcom concluded that Mr and Mrs C’s privacy had been infringed in the making of the programme because their informed consent had not been obtained. This infringement was warranted, however, because the subject-matter of the programme (following the police in their duties) was in the public interest.
Ofcom’s decision – broadcast of the programme
Ofcom noted that Mr C was shown in the programme in his driveway, outside his house, having reported the attempted theft of his car to the police. He was not named, but his face was shown clearly. Mrs C was shown briefly in her dressing-gown, turning away, also outside their home. Ofcom considered that, although Mrs C’s face was not clearly visible, Mr C’s face was shown clearly in the same footage, so she was likely to have been identifiable (even if only to people who knew Mr C and knew that he was married).
Ofcom also noted that Mr and Mrs C were included in the programme in circumstances where they were potential victims of a crime, i.e. during the period immediately after the attempted theft of their car from their home in the early hours of the morning and while the police were on the scene. Ofcom considered that the footage of Mr and Mrs C had shown them in a vulnerable state and in a sensitive situation. The broadcast of footage of Mr and Mrs C had therefore revealed private information about them, and they had a legitimate expectation of privacy in relation to this information.
Ofcom went on to consider whether informed consent had been obtained from Mr and Mrs C, and noted that the primary responsibility to ensure compliance with the Ofcom Broadcasting Code lies with the broadcaster. There was a direct conflict of evidence between Mr C and the police officers as to whether he had consented to the broadcast of the material. It was accepted by all concerned that the cameraman had neither sought Mr or Mrs C’s consent nor, as was his normal practice, captured this consent on film.
Ofcom noted that at the time of broadcast the producer had not had any contact with Mr and Mrs C beyond filming them, despite there being ample opportunity for him to have done so.
The regulator drew attention to the fact that the police officers had themselves been contributors to and the subjects of the Car Wars series, and were not agents or employees of the BBC or of the producer of Car Wars. The BBC had provided no evidence that the police officers had been aware of the requirements of the Ofcom Broadcasting Code. Ofcom found that it was inappropriate in this case for the BBC to have relied on the police officers to seek to obtain Mr C’s consent to broadcast the footage.
Ofcom concluded that the BBC and the producer had failed to take sufficient steps to obtain Mr and Mrs C’s informed consent to broadcast the footage, so their privacy was infringed by the broadcast of the footage.
In contrast to its decision that the public interest in the making of the programme justified the infringement of Mr and Mrs C’s privacy in the filming, Ofcom considered that the subject-matter of the programme was not in itself sufficiently compelling to warrant the infringement of Mr and Mrs C’s privacy in the broadcast of the programme.
Ofcom dismissed the complaint in relation to Mr and Mrs C’s son because he was neither shown nor referred to in the programme and there was no indication in the programme that they had a child.
Comment
Ofcom recognises that there are pressures on programme makers that can make it difficult to judge whether filming or recording will unwarrantably infringe a contributor’s privacy. This is reinforced by its decision not to uphold Mr and Mrs C’s complaint of unwarranted infringement of privacy in the making of the programme. Ofcom specifically states that it does not consider it desirable for programme makers to be unduly constrained in circumstances where they need to film while events are unfolding in order to obtain material.
In Ofcom’s decision on the broadcast of the programme, however, Ofcom stresses that the ultimate responsibility for obtaining informed consent lies with the broadcaster. It is for the broadcaster to ensure that it or its directly contracted employees or agents – who Ofcom considers are best placed to secure informed consent – take sufficient steps to obtain informed consent to the broadcast of material. As well as criticising the BBC for relying on the police officers in this case, Ofcom took a dim view of the fact that a significant period of time had elapsed between filming and broadcast, commenting that there had been ample opportunity for the producer to have contacted Mr and Mrs C directly to seek their informed consent.
Broadcasters should take particular care in relation to the broadcast of footage of contributors filmed in a sensitive situation, despite any public interest in the filming of the material. It is notable in this case that, although Mr C was portrayed in the programme as a victim of an alleged crime, his face was shown clearly. Ofcom’s decision that Mr and Mrs C’s privacy was unwarrantably infringed by the broadcast might well have been different if Mr C’s face had been obscured.
Catherine Fehler & Stephanie Harrower
Article to be published in Entertainment Law Review.
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