APPENDIX 1
OFCOM BROADCASTING CODE: PRIVACY
FOREWORD
This section and the preceding section on fairness
are different from other sections of the Code. They apply to how
broadcasters treat the individuals or organisations directly affected
by programmes, rather than to what the general public sees and/or
hears as viewers and listeners.
As well as containing a principle and a rule
this section contains "practices to be followed" by
broadcasters when dealing with individuals or organisations participating
or otherwise directly affected by programmes, or in the making
of programmes. Following these practices will not necessarily
avoid a breach of this section. However, failure to follow these
practices will only constitute a breach of this section of the
Code (Rule 8.1) where it results in an unwarranted infringement
of privacy. Importantly, the Code does not and cannot seek to
set out all the "practices to be followed" in order
to avoid an unwarranted infringement of privacy.
The Broadcasting Act 1996 (as amended) requires
Ofcom to consider complaints about unwarranted infringements of
privacy in a programme or in connection with the obtaining of
material included in a programme. This may call for some difficult
on-the-spot judgments about whether privacy is unwarrantably infringed
by filming or recording, especially when reporting on emergency
situations ("practices to be followed" 8.5 to 8.8 and
8.16 to 8.19). We recognise there may be a strong public interest
in reporting on an emergency situation as it occurs and we understand
there may be pressures on broadcasters at the scene of a disaster
or emergency that may make it difficult to judge at the time whether
filming or recording is an unwarrantable infringement of privacy.
These are factors Ofcom will take into account when adjudicating
on complaints.
Where consent is referred to in Section Eight
it refers to informed consent. Please see "practice to be
followed" 7.3 in Section Seven: Fairness.
PRINCIPLE
To ensure that broadcasters avoid any unwarranted
infringement of privacy in programmes and in connection with obtaining
material included in programmes
Rule
8.1 Any infringement of privacy in programmes,
or in connection with obtaining material included in programmes,
must be warranted.
Meaning of "warranted"
In this section "warranted" has a
particular meaning. It means that where broadcasters wish to justify
an infringement of privacy as warranted, they should be able to
demonstrate why in the particular circumstances of the case, it
is warranted. If the reason is that it is in the public interest,
then the broadcaster should be able to demonstrate that the public
interest outweighs the right to privacy. Examples of public interest
would include revealing or detecting crime, protecting public
health or safety, exposing misleading claims made by individuals
or organisations or disclosing incompetence that affects the public.
PRACTICES TO
BE FOLLOWED
(8.2 TO 8.22)
Private lives, public places and legitimate expectation
of privacy
Meaning of "legitimate expectation of privacy"
Legitimate expectations of privacy will vary
according to the place and nature of the information, activity
or condition in question, the extent to which it is in the public
domain (if at all) and whether the individual concerned is already
in the public eye. There may be circumstances where people can
reasonably expect privacy even in a public place. Some activities
and conditions may be of such a private nature that filming or
recording, even in a public place, could involve an infringement
of privacy. People under investigation or in the public eye, and
their immediate family and friends, retain the right to a private
life, although private behaviour can raise issues of legitimate
public interest.
8.2 Information which discloses the location
of a person's home or family should not be revealed without permission,
unless it is warranted.
8.3 When people are caught up in events
which are covered by the news they still have a right to privacy
in both the making and the broadcast of a programme, unless it
is warranted to infringe it. This applies both to the time when
these events are taking place and to any later programmes that
revisit those events.
8.4 Broadcasters should ensure that words,
images or actions filmed or recorded in, or broadcast from, a
public place, are not so private that prior consent is required
before broadcast from the individual or organisation concerned,
unless broadcasting without their consent is warranted.
Consent
8.5 Any infringement of privacy in the making
of a programme should be with the person's and/or organisation's
consent or be otherwise warranted.
8.6 If the broadcast of a programme would
infringe the privacy of a person or organisation, consent should
be obtained before the relevant material is broadcast, unless
the infringement of privacy is warranted. (Callers to phone-in
shows are deemed to have given consent to the broadcast of their
contribution.)
8.7 If an individual or organisation's privacy
is being infringed, and they ask that the filming, recording or
live broadcast be stopped, the broadcaster should do so, unless
it is warranted to continue.
8.8 When filming or recording in institutions,
organisations or other agencies, permission should be obtained
from the relevant authority or management, unless it is warranted
to film or record without permission. Individual consent of employees
or others whose appearance is incidental or where they are essentially
anonymous members of the general public will not normally be required:
— However, in potentially sensitive
places such as ambulances, hospitals, schools, prisons or police
stations, separate consent should normally be obtained before
filming or recording and for broadcast from those in sensitive
situations (unless not obtaining consent is warranted). If the
individual will not be identifiable in the programme then separate
consent for broadcast will not be required.
Gathering information, sound or images and the
re-use of material
8.9 The means of obtaining material must
be proportionate in all the circumstances and in particular to
the subject matter of the programme.
8.10 Broadcasters should ensure that the
re-use of material, ie use of material originally filmed or recorded
for one purpose and then used in a programme for another purpose
or used in a later or different programme, does not create an
unwarranted infringement of privacy. This applies both to material
obtained from others and the broadcaster's own material.
8.11 Doorstepping for factual programmes
should not take place unless a request for an interview has been
refused or it has not been possible to request an interview, or
there is good reason to believe that an investigation will be
frustrated if the subject is approached openly, and it is warranted
to doorstep. However, normally broadcasters may, without prior
warning interview, film or record people in the news when in public
places.
(See "practice to be followed" 8.15.)
Meaning of "doorstepping"
Doorstepping is the filming or recording of
an interview or attempted interview with someone, or announcing
that a call is being filmed or recorded for broadcast purposes,
without any prior warning. It does not, however, include vox-pops
(sampling the views of random members of the public).
8.12 Broadcasters can record telephone calls
between the broadcaster and the other party if they have, from
the outset of the call, identified themselves, explained the purpose
of the call and that the call is being recorded for possible broadcast
(if that is the case) unless it is warranted not to do one or
more of these practices. If at a later stage it becomes clear
that a call that has been recorded will be broadcast (but this
was not explained to the other party at the time of the call)
then the broadcaster must obtain consent before broadcast from
the other party, unless it is warranted not to do so.
(See "practices to be followed" 7.14
and 8.13 to 8.15.)
8.13 Surreptitious filming or recording
should only be used where it is warranted. Normally, it will only
be warranted if:
— there is prima facie evidence of
a story in the public interest; and
— there are reasonable grounds to suspect
that further material evidence could be obtained; and
— it is necessary to the credibility
and authenticity of the programme.
(See "practices to be followed" 7.14,
8.12, 8.14 and 8.15.)
Meaning of "surreptitious filming or recording"
Surreptitious filming or recording includes
the use of long lenses or recording devices, as well as leaving
an unattended camera or recording device on private property without
the full and informed consent of the occupiers or their agent.
It may also include recording telephone conversations without
the knowledge of the other party, or deliberately continuing a
recording when the other party thinks that it has come to an end.
8.14 Material gained by surreptitious filming
and recording should only be broadcast when it is warranted
(See also "practices to be followed"
7.14 and 8.12 to 8.13 and 8.15.)
8.15 Surreptitious filming or recording,
doorstepping or recorded "wind-up" calls to obtain material
for entertainment purposes may be warranted if it is intrinsic
to the entertainment and does not amount to a significant infringement
of privacy such as to cause significant annoyance, distress or
embarrassment. The resulting material should not be broadcast
without the consent of those involved. However if the individual
and/or organisation is not identifiable in the programme then
consent for broadcast will not be required.
(See "practices to be followed" 7.14
and 8.11 to 8.14.)
Suffering and distress
8.16 Broadcasters should not take or broadcast
footage or audio of people caught up in emergencies, victims of
accidents or those suffering a personal tragedy, even in a public
place, where that results in an infringement of privacy, unless
it is warranted or the people concerned have given consent.
8.17 People in a state of distress should
not be put under pressure to take part in a programme or provide
interviews, unless it is warranted.
8.18 Broadcasters should take care not to
reveal the identity of a person who has died or of victims of
accidents or violent crimes, unless and until it is clear that
the next of kin have been informed of the event or unless it is
warranted.
8.19 Broadcasters should try to reduce the
potential distress to victims and/or relatives when making or
broadcasting programmes intended to examine past events that involve
trauma to individuals (including crime) unless it is warranted
to do otherwise. This applies to dramatic reconstructions and
factual dramas, as well as factual programmes:
— In particular, so far as is reasonably
practicable, surviving victims, and/or the immediate families
of those whose experience is to feature in a programme, should
be informed of the plans for the programme and its intended broadcast,
even if the events or material to be broadcast have been in the
public domain in the past.
People under sixteen and vulnerable people
8.20 Broadcasters should pay particular
attention to the privacy of people under sixteen. They do not
lose their rights to privacy because, for example, of the fame
or notoriety of their parents or because of events in their schools.
8.21 Where a programme features an individual
under sixteen or a vulnerable person in a way that infringes privacy,
consent must be obtained from:
— a parent, guardian or other person
of eighteen or over in loco parentis; and
— wherever possible, the individual
concerned;
unless the subject matter is trivial or uncontroversial
and the participation minor, or it is warranted to proceed without
consent.
8.22 Persons under sixteen and vulnerable
people should not be questioned about private matters without
the consent of a parent, guardian or other person of eighteen
or over in loco parentis (in the case of persons under sixteen),
or a person with primary responsibility for their care (in the
case of a vulnerable person), unless it is warranted to proceed
without consent.
Meaning of "vulnerable people"
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 traumatised or who are sick or terminally ill.
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