Editorial Guidelines issues
This guidance relates to the following Editorial Guidelines:
- Fairness and Consent
See Editorial Guidelines Section 6 Fairness to Contributors and Consent: Contributors and Informed Consent, Obtaining Consent and Withdrawal of Consent 6.3.1 β 6.3.11 - Privacy
See Editorial Guidelines Section 7 Privacy. In particular 7.1 Introduction: Legitimate Expectations of Privacy - Re-use and Reversioning
See Editorial Guidelines Section 13 Re-use, Reversioning and Permanent Availability
Key points
- Achieving informed consent requires a potential contributor to be in possession of sufficient knowledge about our plans for a reasoned decision to take part in our content.
- The Editorial Guidelines state, βWherever practicable we should obtain consent in a form capable of proof, which may include a consent form, an email exchange, a recording, or a contemporaneous note of the consent conversation.β
- Contributor consent forms can formalise the consent process and prove copyright in a contribution. However, informed consent may require providing more detailed information to a contributor.
- Consent needs to be appropriate to the individual circumstances of the contributor and the contribution. For example, there are different considerations for contributors who are part of an observational documentary, to those who are working collaboratively on our output or who are vulnerable or third parties.
- Generally, no contributor who has given properly informed consent has the right to withdraw it. However, we should listen carefully to any reasonable objections and, on the rare occasions where such a request is granted, we should be clear of the specific and distinct circumstances that have made withdrawal appropriate.
Guidance in full
- What is Informed Consent?
- How We Obtain Informed Consent
- Who Gives Informed Consent?
- Withdrawal of Informed Consent
- Informed Consent and Risks to Contributors
What is Informed Consent?
The model of informed consent comes from medical practice. It encompasses freewill, capacity and knowledge. The individual concerned needs to have the capacity to come to a freely made decision, based on sufficient knowledge for them to come to a properly informed decision to agree or refuse. For the ΒιΆΉΤΌΕΔ therefore, achieving informed consent requires a potential contributor to be in possession of sufficient knowledge about our plans for a reasoned decision to take part in our content. See the Editorial Policy Guidance on Working with Contributors including Vulnerable Contributors and those at Risk of Vulnerability for more on capacity to consent.
(Guidance online: Working Contributors including with Vulnerable Contributors and those at Risk of Vulnerability)
The term βcontributorβ covers a wide range of people taking part in content under very different circumstances. Therefore they have very different needs. Varying levels and types of knowledge will be required for an informed decision to be possible. For example, a contributor to a vox pop will not require as much information as an individual who has agreed to take part in a constructed reality programme to be filmed over a period of months. For Editorial Guidelines about informed consent and the information a contributor should normally be told see Section 6 Fairness to Contributors and Consent.
(See Editorial Guidelines Section 6 Fairness to Contributors and Consent 6.3.1 β 6.3.5)
How we obtain Informed Consent
The Editorial Guidelines state, βWherever practicable we should obtain consent in a form capable of proof which may include a consent form, an email exchange, a recording of the contributorβs confirmation that they understand the nature of the output and are content to take part, or a contemporaneous note of the consent conversations.β
For Editorial Guidelines about obtaining informed consent see Section 6 Fairness to Contributors and Consent.
(See Section 6 Fairness to Contributors and Consent: 6.3.6 β 6.3.10)
(See Guidance: User Contributions and Guidance: Guidance: Working with Children and Young People as Contributors and Guidance: Filming Medical Emergencies)
Where practicable, it is good practice to demonstrate consent in writing.
Use of contributor consent forms
Contributor consent forms (contributor release forms) can formalise the consent process and prove copyright in a contribution. They are short documents that production teams should use particularly where a contribution is significant. They should normally be signed before the contribution is recorded. The forms usually set out:
- brief details about the programme and nature of the contribution
- legal matters such as copyright and re-use of recorded material, and
- a privacy notice.
As consent forms contain limited information, they do not necessarily demonstrate that there has been properly informed consent. For example, when dealing with a long and involved project with the contributor or, if the contributors are vulnerable or where they may disclose sensitive personal information, it can be advisable to lay out more details of the programme, its editorial intent, the expectations placed on the contributor, how the contribution will be used and any other relevant information relating to participation β including support for the contributor This information may be laid out in a more detailed contributor consent form, a longer agreement, a letter, email or it could be explained in a conversation which is noted contemporaneously.
Having a conversation with a contributor does not replace the need for a contributor consent form. Without evidence of the ΒιΆΉΤΌΕΔβs legal entitlement to use the content, it may be impossible for the ΒιΆΉΤΌΕΔ to re-use it or to sell programmes.
ΒιΆΉΤΌΕΔ Studios and Public Service production teams can find the release forms and further guidance about using them on the ΒιΆΉΤΌΕΔ on Gateway.
Note Taking
A good contemporaneous note of conversations with potential contributors can be important to proving consent was properly informed.
Ofcomβs guidance on Fairness makes specific reference to the importance of taking notes and maintaining records of conversations and other information given to contributors, relevant to their consent. The guidance highlights that complaints about fairness may arise after production teams have been disbanded and suggests it may be βhelpful to make and maintain written records of discussions with contributors before filming and/or broadcast and obtain informed consent in writing.β Adding that it may also be helpful, βto provide information on the areas of questioning, where practicable, in writing. [1] β
Recorded Consent
Where it may not be practicable to obtain a signed consent (release) form or to make a contemporaneous note, consent may be recorded. For example, the contributor may be given details on tape about the programme, including the title and when and where it will be broadcast. They may then be asked why they want to take part in the programme and if they consent to their interview being included in the content.
Significant Changes after Consent has been Obtained
For Editorial Guidelines about the considerations where there are significant changes to programmes after consent has been obtained see Section 6 Fairness to Contributors and Consent 6.3.5.
(See Editorial Guidelines Section 6: Fairness to Contributors and Consent: 6.3.5)
Re-use and Reversioning
The expansion of social media, video on demand services, co-production deals, syndication to other platforms, in addition to the ΒιΆΉΤΌΕΔβs linear and online services, has greatly increased the opportunity for re-using and reversioning content, in whole or in part.
Usually, the terms of a contributor release form legally entitles the ΒιΆΉΤΌΕΔ to reuse a contributorβs contribution. However, we should still consider the potential impact of re-using contributions and be alert to issues that may be raised by re-use.
The re-use of some material may give a contributor cause for concern, for example when it reveals a criminal or otherwise embarrassing past, or deals with traumatic events. Or re-use would result in far greater exposure (e.g. re-use via global social media platforms). Or the contribution would be out of the original context.
Before content is re-used or reversioned, we must check any relevant contributor consents and observe any restrictions on the re-use of the content, unless we are able to establish that circumstances have changed since the restrictions were imposed, so that they no longer apply. We must also consider how to minimise possible distress to surviving contributors where content has become more sensitive over time.
(See Editorial Guidelines Section 13 Re-use, Reversioning and Permanent Availability: 13.3.11 β 13.3.18)
Who gives Informed Consent?
Every consent needs to be appropriate to the individual circumstances of the contributor and contribution. However, when considering who is required to give consent, how much information should be given and the form it should take, it is useful to think of the different types of contributors and contributions:
- uninvited contributors
- invited contributors
- contributions about third parties
Uninvited Contributors
Uninvited contributors are those who have not been asked to take part in our output; they are individuals caught up without warning in the production process, for example during observational documentary making.
The requirement for consent is a judgement that balances the individualβs legitimate expectation of privacy (See Section 6 Privacy: Introduction) with the need to report in the public interest.Consent need not normally be sought if the material is gathered in a public place and an individual is merely incidental or illustrative and not-named. However, some situations are more likely to require informed consent, for example when an identifiable member of the public is shown receiving medical treatment.
(See Guidance: Filming in Medical Emergencies)
Between these extremes lies a range of scenarios where the requirement for consent and the information that should be given will vary, depending on the significance of the contributor, the nature of the action taking place and the degree to which the location is public or private.
Note that people recorded committing an offence or admitting to an offence, or behaving or admitting to behaving in an anti-social manner will not normally be asked for consent. We would also normally reveal their identity although there are circumstances when it is important not to do so.
The following considerations can help when assessing the requirement for consent, whether it should be expressed or may be implied, and the level of information required.
- Is the behaviour essentially public and the recording or filming for broadcast apparent?
(See Editorial Guidelines Section 7 Privacy: Secret Recording) - Is the behaviour private although occurring in a public place? For example, receiving medical treatment.
- Is the person in a state of distress?
- Is the person becoming actively involved in the filming and interacting with the microphone or camera?
- Is the person acting in an anti-social or criminal way?
- Does the producer have enough information to represent that personβs actions fairly in the finished programme?
- Is the person going to be ridiculed or humiliated?
Invited Contributors
Invited Contributors are those who have been asked to take part in our programmes in advance of making their contribution and who are not responsible for criminal or anti-social behaviour which we are exposing in the public interest.
It is helpful to consider Invited Contributors in three categories:
1. The Straightforward Contributor.
This is someone whose contribution is not of a sensitive or controversial nature and is unlikely to have long-term impact on their lives. For example, someone bringing an antique for valuation on Antiques Roadshow, a minor interviewee in a documentary on a non-sensitive subject or a contributor to The Food Programme on Radio 4.
When inviting these contributors we should normally at an appropriate stage tell contributors the information set out in the Editorial Guidelines in Section 6 Fairness to Contributors and Consent, 6.3.1 and any other relevant information necessary to secure informed consent.
(See Editorial Guidelines Section 6: Fairness to Contributors and Consent: 6.3.1-6.3.5)
2. The Collaborative Contributor
This is someone who is central to the programme and involved in a collaborative fashion. This includes, for example, contributors to some constructed reality programmes, makeover programmes and observational documentaries. Gaining consent will often be the result of a dialogue over time, allowing a relationship to be built between programme maker and participant. It is advisable to keep a contemporaneous note of any discussions and to follow up verbal information or assurances with a letter, email etc.
Even though the relationship may evolve, properly informed consent still needs to be gained; if significant information is not made available to the contributor before they begin participating, they may have grounds to withdraw their consent at a later stage in the production process and after significant costs have been incurred.
(See below: Withdrawal of Informed Consent)
In addition to giving the information outlined in the Editorial Guidelines in Section 6 Fairness to Contributors and Consent 6.3.1, it may be appropriate to raise the following issues with collaborative contributors:
- the likely time commitment, impact on their daily lives and the production teamβs expectations of filming activities and access.
- the need for the contributor to consider the consequences of taking part, post transmission, for themselves and, if relevant, their families.
- their social media presence and whether, for example, they need to change their privacy settings.
The Editorial Guidelines state, βWe do not normally allow contributors a preview of our content.β However, where there are editorial reasons - for example, an exceptional collaborative contribution or legal reasons, any preview offered must be in accordance with the editorial guidelines in Section 6 Fairness to Contributors and Consent.
(See Section 6 Fairness to Contributors and Consent: 6.3.32)
We may ask collaborative contributors to sign a contract which formalises the terms of their dealings with us, and includes a declaration of personal information which may bring the ΒιΆΉΤΌΕΔ into disrepute (for example, criminal convictions) or which may involve possible conflicts of interest.
Alternatively, if the contributor is providing significant access, they may require the production team to enter into an access agreement. The terms of an access agreement must be in accordance with the Editorial Guidelines.
(See Section 6 Fairness to Contributors and Consent 6.3.33)
(See Guidance: Access Agreements and Indemnity Forms)
3. The Vulnerable Contributor
Contributors who are vulnerable may have particular needs according to their disability or condition at the time of recording. There is editorial policy guidance on working with vulnerable contributors that considers informed consent and capacity to consent. There is also guidance on informed consent when filming in a medical emergency.
(See Guidance: Working with Contributors including Vulnerable Contributors and those at Risk of Vulnerability and Guidance: Filming in Medical Emergencies)
Contributions About Third Parties
Third Parties are individuals who are not contributors to a programme but are nevertheless being discussed, referred to or otherwise appearing in material. We should be fair and accurate in our portrayal of these people. Where information is not already in the public domain, it should not normally be published unless there is a public interest that outweighs a legitimate expectation of privacy. The following questions can help determine whether it is necessary to notify or seek their consent.
- Is the material revealing private information about a third party?
- Does the content involve a sensitive or controversial subject?
- What are the motives behind a participantβs reference to a third party?
- Could the way in which the third party is presented damage their reputation or cause emotional distress to an innocent party? (Consider that, within relationships, there may be sharply contrasting viewpoints and you may be hearing only one side of the story.)
- Can the account about a third party be corroborated?
- Is the third party responsible for any wrongdoing?
Withdrawal of Informed Consent
Generally, no contributor who has given properly informed consent has the right to withdraw it.
However, that does not mean we should simply disregard requests to withdraw from our output. Just because we have the right to use a contribution does not always mean that it is appropriate to do so β particularly when we are dealing with contributors already known to be vulnerable. We should listen carefully to any reasonable objections. We should also consider whether there has been a significant change in the circumstances of the programme or the contributor which would have affected their decision to participate had it been known at the time.
Nevertheless, where informed consent has been properly obtained, we should protect our rights to use the material. Our ability to make programmes and other content depend on a clear and binding consent process. On the rare occasions when a contributorβs request to withdraw consent is granted, we should be clear of the specific and distinct circumstances that have made withdrawal appropriate.
(See Section 6 Fairness to Contributors and Consent: 6.3.11)
Informed Consent and Risks to Contributors
Where risks to a contributor have been identified in relation to their contribution to ΒιΆΉΤΌΕΔ content, they should be provided with relevant information about those risks and any steps that will be taken to manage and/or mitigate them. The information should be given clearly at the earliest stage of the production process in a way that is understandable to the contributor, with further information given during the production process, particularly where the risks may change significantly as the production evolves.
However, there may be occasions when it is unnecessary or impractical to inform the contributor of potential risks, for example in the production of many news and current affairs programmes and other programmes where it is warranted in the public interest not to do so.
It is helpful to keep written records of discussions with contributors before recording, in addition to informed consent in writing. It may also be helpful for contributors to be provided with information on any areas of questioning, in writing, where practical. Records are useful because complaints about unjust or unfair treatment may occur after production teams have disbanded.
(See Guidance online: Working with Contributors including Vulnerable Contributors and those at Risk of Vulnerability)
Last updated April 2021