Broadcasting Standards Commission Code on Fairness and Privacy, effective 1 January 1998. (The BSC was replaced by Ofcom in 2003)
1. In any democratic society, there are balances to be struck between the citizen’s right to receive information and ideas, and the responsibilities of broadcasters and journalist to behave reasonable and fairly and not to cause an unwarranted infringement of a citizen’s basic right to privacy.
The guidelines in this Code cannot resolve that dilemma. But it sets out what the Broadcasting Standards Commission considers are the principles to be observed and practices to be followed by all broadcasters (including the providers of teletext services) to avoid unjust or unfair treatment in radio and television programmes, and to avoid the unwarranted infringement of privacy in the making the broadcasting of such programmes. Broadcasters and broadcasting regulatory bodies should reflect this guidance in their own codes and guidelines.
The Commission will, as required by the Act, take the provisions of this code into account as it considers complaints, and the Code will be revised, as necessary, in the light of its experience. But the guidance in a code can never be exhaustive. Whether the needs of fairness and privacy have been met can only be judged by considering each particular case in the light of the information the broadcaster had available after diligent research at the time the programme was made or broadcast.
2. Broadcasters have a responsibility to avoid unfairness to individuals or organisations features in programmes in particular through the use of inaccurate information or distortion, for example, by the unfair selection or juxtaposition of material taken out of context, whether specially recorded for a programme, or taken from library or other sources. Broadcasters should avoid creating doubts on the audience’s part as to what they are being shown if it could mislead the audience in a way which would be unfair to those featured in the programme.
Dealing Fairly with Contributors
3. From the outset, broadcasters should ensure that all programme-makers, whether in-house or independent, understand the need to be straightforward and fair in their dealings with potential participants in factual programmes, in particular by making clear, wherever practicable, the nature of the programme and its purpose and, whenever appropriate, the nature of their contractual rights. Many potential contributors will be unfamiliar with broadcasting and therefore may not share assumptions about programme-making which broadcasters regard as obvious.
4. Contributors should dealt with fairly. Where they are invited to make a significant contribution to a factual programme they should:
(i) be told what the programme is about;
(ii) be given a clear explanation of why they were contacted by the programme;
(iii) be told what kind of contribution they are expected to make – for example by way of an interview or as part of a discussion.
(iv) be informed about the areas of questioning, and, wherever possible, the nature of other likely contributions.
(v) be told whether their contribution is to be live or recorded, and, if recorded, whether it is likely to be edited.
(vi) not be coached or pushed or improperly induced into saying anything which they know not to be true or do not believe to be true;
(vii) whenever appropriate, be made aware of any significant changes to the programme as it develops which might reasonable affect their original consent to participate, and cause material unfairness; and
(viii) if offered an opportunity to preview the programme, be given clear information about whether they will be able to effect any change in the programme.
The requirements of fairness in news reports pose particular challenges. The speed of newsgathering means that it is not always possible to provide contributors to news reports with all the information mentioned above. However, that does not absolve journalists from treating contributors fairly or ensuring that the reports compiled meet the needs of fairness and accuracy.
5. Broadcasters should take special care that the use of material originally recorded for one purpose and then used in a later or different programme does not create material unfairness or unwarrantably infringe privacy. The inclusion of such material should be carefully considered, especially where this involves instances of personal tragedy or reference to criminal matters. This applies as much to material obtained from others as to material shot by the broadcaster itself.
7. Broadcasters should take special care when their programmes are capable of adversely affecting the reputation of individuals, companies or other organisations. Broadcasters should take all reasonable care to satisfy themselves that all material facts have been considered before transmission and so far as possible are fairly presented.
8. Broadcasters should also be alert to the danger of unsubstantiated allegations being made by participants to live ‘phone-ins and discussion programmes and ensure that presenters are briefed accordingly.
9. Contemporary drama which is based on the lives and experience of real people or organisations should seek to convey them fairly. It should be made clear in advance to the audience whether the drama is loosely based on the events it describes or rather purports to be an accurate account of what happened. In neither case should drama distort the verifiable facts in a way which is unfair to anyone with a direct interest in the programme. Care should also be taken not to convey through characterisation, or casting, or on-air promotion, an unfair impression of the characters on whom the drama is based.
Correction and apology
10. Whenever the broadcaster recognises that a broadcast has been unfair, if the person affected so wishes, it should be corrected promptly and with due prominence unless there are compelling legal reasons not to do so. An apology should also be broadcast whenever appropriate.
Opportunity to contribute
11. When a programme alleges wrong-doing or incompetence, or contains a damaging critique of an individual or organisation, those criticised should normally be given an appropriate and timely opportunity to respond to or comment on the arguments and evidence contained within the programme.
12. Anyone has the right to refuse to participate in a programme, but the refusal of an individual or organisation to take part should not normally prevent the programme from going ahead. However, where an individual or organisation is mentioned or discussed in their absence, care should be taken to ensure that their views are not misrepresented.(see also paragraph 25.)
13. Factual programme-makers should not normally obtain or seek information or pictures through misrepresentation or deception, except where the disclosure is reasonably believed to serve an overriding public interest (see also paragraphs 14, 16, 18, 23, 26, 28, 31, 32, 33) and the material cannot reasonably be obtained by other means. Where the use of deception is judged permissible, it should always be proportionate to the alleged wrong-doing and should wherever possible avoid the encouragement of conduct which might not have occurred at all but for the intervention of the programme-maker. Prior editorial approval at the most senior editorial levels within the broadcasting organisation should be obtained for such methods. The programme should also make clear to the audience the means used to obtain access to the information, unless this places sources at risk.
14. The line to be drawn between the public’s right to information and the citizen’s right to privacy can sometimes be a fine one. In considering complaints about the unwarranted infringement of privacy, the Commission will therefore address itself to two distinct questions:
First, has there been an infringement of privacy ? Second, if so, was it warranted ?
An infringement of privacy has to be justified by an overriding public interest in disclosure of the information. This would include revealing or detecting crime or disreputable behaviour, protecting public health or safety, exposing misleading claims made by individuals or organisations, or disclosing significant incompetence in public office. Moreover, the means of obtaining the information must be proportionate to the matter under investigation.
15. Privacy can be infringed during the obtaining of material for a programme, even if none of it is broadcast, as well as in the way in which material is used within the programme.
16. For much of the time, the private lives of most people are of no legitimate public interest. It is important that when, for a short time, people are caught up, however involuntarily, in events which have a place in the news, their situation is not abused either at the time or in later programmes which revisit those events. When broadcasters are covering events in public places, they should ensure that the words spoken or images shown are sufficiently in the public domain to justify their broadcast without the consent of the individuals concerned. When filming or recording in institutions, organisations or agencies where permission has been given by the relevant authority or management, broadcasters are under no obligation to seek the individual consent of employees or others whose appearance is incidental or where they are essentially anonymous members of the general public. However, in clearly sensitive situations in places such as hospitals or prisons or police stations, individual consent should normally be obtained unless their identity has been concealed. Broadcasters should take similar care with material recorded by CCTV cameras to ensure identifiable individuals are treated fairly. Any exceptions to the requirement of individual consent would have to be justified by an overriding public interest.
17. People in the public eye, either through the position they hold or the publicity they attract, are in a special position. However, not all matters which interest the public are in the public interest. Even when personal matters become the proper subject of enquiry, people in the public eye or their immediate family or friends do not forfeit the right to privacy, though there may be occasions when private behaviour raises broader public issues either through the nature of the behaviour itself or by the consequences of its becoming widely known. But any information broadcast should be significant as well as trued. The location of a person’s home or family should not normally be revealed unless strictly relevant to the behaviour under investigation.
The Use of Hidden Microphones and Cameras
18. The use of secret recording should only be considered where it is necessary to the credibility and authenticity of the story, as the use of hidden recording techniques can be unfair to those recorded as well as infringe their privacy. In seeking to determine whether an infringement of privacy is warranted, the Commission will consider the following guiding principles.
(i) Normally, broadcasters on location should operate only in public where they can be seen. Where recording does take place secretly in public places, the words or imaged recorded should serve an overriding public interest. to justify:
* the decision to gather the material;
* the actual recording;
* the broadcast.
(ii) An unattended recording device should not be left on private property without the full and informed consent of the occupiers or their agent unless seeking permission might frustrate the investigation by the programme-makers of matters of an overriding public interest.
(iii) The open and apparent use of cameras or recording devices on both public and private property, when the subject is on private property, must be appropriate to the importance or nature of the story. The broadcaster should not intrude unnecessarily on private behaviour.
19. When broadcasting material obtained secretly, whether in public or on private property, broadcasters should take care not to infringe the privacy of bystanders who may be caught inadvertently in the recording. Wherever it is clear that unfairness might otherwise be caused, the identity of innocent parties should be obscured.
20. Broadcasters should apply the same rules to material shot secretly, by others as they do to their own recordings in taking the decision whether to broadcast the material.
21. When secret recording is undertaken as part of an entertainment programme, care should also be taken to prevent the unwarranted infringement of privacy. Those who are the subjects of a recorded deception should be asked to give their consent before the material is broadcast. If they become aware of the recording and ask for it to stop, their wishes should be respected. In a live broadcast, especial care should be taken to avoid offence to the individuals concerned.
22. Broadcasters should normally identify themselves to telephone interviewees from the outset, or seek agreement from the other party, if they wish to broadcast a recording of a telephone call between the broadcaster and the other party.
23. If factual programme-makers take someone by surprise by recording a call for broadcast purposes without any prior warning, it is the equivalent of door-stepping (see paragraphs 25, 26, 27) and similar rules apply. Such approaches should only take place where there is reason to believe that there is an overriding public interest and the subject has refuse to respond to reasonable requests for interview, or has a history of such failure or refusal, or there is good reason to believe that the investigation will be frustrated if the subject is approached openly.
24. Other recordings of telephone conversations for broadcast purposes made with the agreement of one of the parties but without the knowledge of the other party are to be assess by the criteria which apply to secret recording on private property. (See paragraph 18.)
25. People who are currently in the news cannot reasonably object to being questioned and recorded by the media when in public places. The questions should be fair even if they are unwelcome. If the approach is made by telephone, the broadcaster should make clear who is calling and for what purpose. Nevertheless, even those who are in the news have the right to make no comment or to refuse to appear in a broadcast. Any relevant broadcast should make clear that a person has chosen not to appear and mention such person’s explanation, if not to do so could be materially unfair. (See also paragraph 12.)
26. Outside the daily news context, different considerations apply. But surprise can be a legitimate device to elicit the truth especially when dealing with matters where there is an overriding public interest in investigation and disclosure. Door-stepping in these circumstances may be legitimate where there has been repeated refusal to grant an interview (or a history of such refusals) or the risk exists that a protagonist might disappear.
27. Repeated attempts to take pictures or to obtain an interview when consent has been refused can, however, constitute an unwarranted infringement of privacy and can also constitute unfairness. Care must also be taken not to make it easy to locate or identify the refuser’s address unless it is strictly relevant to the behaviour under investigation and there is an overriding public interest.
Suffering and Distress
28. Broadcasters should not add to the distress of people caught up in emergencies or suffering a personal tragedy. People in a state of distress must not be put under any pressure to provide interviews. The mere fact that grieving people have been named or suggested for interview by the police or other authorities does not justify the use of material which infringes their privacy or is distressing. Such use if justified only if an overriding public interest is served. Broadcasters should take care not to reveal the identity of a person who has died, or victims of accidents or violent crimes unless and until it is clear that the next of kin have been informed.
29. Programme-makers should also be sensitive to the possibility of causing additional anxiety or distress when filming or recording people who are already extremely upset or under stress, for example at funerals or in hospitals. Normally, prior consent should be obtained from the family or their agents.
*At funerals, programme-makers should respect their requests to withdraw.
* No attempt should be made to enter wards or other places of treatment in hospitals without clear and informed authorisation from the medical staff and the individuals concerned or those acting on their behalf.
Broadcasters should also respect any reasonable arrangements made by the emergency services to supervise media access to victims of crime or accident or disaster, or their relatives, in the immediate aftermath of a tragedy.
30. Broadcasters should ask themselves whether the repeated use of traumatic library material is justified if it features identifiable people who are still alive or who have died recently.
Re-Visiting Past Events
31. Programmes intended to examine past events involving trauma to individuals, including crime, should try to minimise the potential distress to surviving victims or surviving relatives in re-telling the story. So far as is reasonably practicable, surviving victims or the immediate families of those whose experience is to feature in the programme, should be informed of the programme’s plans and its intended transmission. Failure to do this might be deemed an unwarranted infringement of privacy, even if the events or material to be broadcast have been in the public domain in the past.
32. Children’s vulnerability must be a prime concern for broadcasters. They do not lose their rights to privacy because of the fame or notoriety of their parents or because of events in their schools. Care should be taken that a child’s gullibility or trust is not abused. They should not be questioned about private family matters or ask for views on matters likely to be beyond their capacity to answer properly. Consent from parents or those in loco parentis should normally be obtained before interviewing children under 16 matters of significance. Where consent has not been obtained or actually refused, any decision to go ahead can only be justified if the item is of overriding public interest and the child’s appearance is absolutely necessary.
Similarly, children under 16 involved in police enquiries or court proceedings relating to sexual offences should not be identified or identifiable in news or other programmes.
33. Broadcasters should be clear about the terms and conditions upon which they are granted access to police operations and those of other law enforcement agencies, emergency services or bodies working directly with vulnerable people. When accompanying such operations, crews should identify as soon as practicable for whom they are working and what they are doing. If asked to stop filming on private premises by the property owner or occupier, or to leave, they should do so unless there is an overriding public interest. Bystanders caught on cameral should have their identities obscured, where unfairness might arise.