Watching me watching you

Genitals, chickens, hats and profanity – these are the things that occupy the mind of a Channel 4 lawyer. Fiona Callister reports on the ten-week damage limitation exercise that was Big Brother.

It is only fair to warn you that if you continue to read this article – and it is highly recommended that you do – you will end up with the thudding signature tune of Big Brother throbbing through your head for the rest of the day. Those of you do not know what the tune were obviously unable to make any contributions to dinner party conversations over the summer.

Social invitations are still flooding in for Nigel Abbas, a lawyer in the Channel 4 legal department, and Neil Pepin, deputy head of the department, just as they did last summer.

The reason – apart from both of them being utterly charming individuals, of course – is that they know the truth behind the phenomenon that provided dozens of tabloid headlines and encouraged at least one million people a week to ring a premium rate telephone number to take part in the game. They were the lawyers charged with ensuring that Big Brother stayed on the right side of the law. And that involved keeping an eye on nudity, hats, family secrets and chickens.

While the first series was broadcast on Channel 4 and on the web, this year the workload of Abbas, Pepin and the rest of the six-strong legal team at Channel 4 was increased by the decision to screen live footage from the Big Brother house 21 hours a day on the channel’s digital sister, E4. Previously, apart from Friday night coverage when one of the housemates was evicted, the Big Brother TV programmes were edited highlights from the day before.

But for the second series, the Friday night programme and E4 were ‘live’, although subject to a 10-minute delay. This delay allowed the editorial team to edit out both excessive swearing and legally dubious content, and was where Pepin and Abbas came in.

Both lawyers have been involved with Big Brother since the beginning. The first series arrived on our television screens in August 2000 but discussions as to how the legal side would be handled started four months earlier. All six of the team took it in turn to be on call for 24 hour shifts, during which they took an average of 10 to 15 queries a day from the production team.

Last year’s housemates were easier than this year’s lot, providing the team with a gentle start. Pepin explains: “I would say that this year’s housemates were more troublesome [from a legal and regulation point of view]. To give you some idea, E4 decided that they should make a note of the number of edits they had to do in a 21-hour period. They did 1,300 edits in that period and it continued at that level on an ongoing basis.”

Most of the edits were for bad language, and although this year’s housemates were more foul-mouthed than last year’s, part of the difficulty, adds Abbas, was that because there was a spate of birthdays in this year’s series, there was more drinking – and that was when the trouble started.

Following last year’s nude body- painting episode, for example, this year’s nudity problem came after Brian’s birthday party when each housemate appeared to drink their own bodyweight in alcohol. While Brian was getting out of the jacuzzi, Josh pulled his swimming trunks down. Although this, happening late at night, did not pose too much of a problem for the live stream or the Channel 4 post-watershed programme, the teatime show had to be edited slightly to avoid revealing too much of Brian’s private parts.

The demon drink itself caused problems for the pre-watershed shows, as excessive drinking cannot be seen to be condoned following Independent Television Commission (ITC) guidelines.

“It’s not an absolute prohibition,” explains Pepin. “It’s more about whether you show anything that might encourage drinking. So it’s not that you can’t show that they are drinking, more a question of how it comes across.”

“So we show the hangovers as well,” adds Abbas.

While last year’s group did not discuss the outside world much, preferring to talk about themselves, this year’s were more open about life outside the house.

“There are fairness and privacy issues when people are talking about people they know and their family and saying things that those people would not necessarily want broadcast. We have had some close calls on that one,” says Pepin.

Privacy became a particular issue during Celebrity Big Brother, which was put on in aid of Comic Relief earlier this year. Vanessa Feltz was one of the housemates and started showing signs of strain after being nominated for eviction, which mainly involved scrawling words such as ‘incarceration’ on the Big Brother tabletop.

Pepin explains: “Although every housemate signs a form saying we can film them, there could be circumstances when they are in such mental turmoil you could conceivably get to a point where you feel that showing what they are going through would be a breach of their privacy.”

Abbas adds: “Something like [the Feltz incident] is so high profile that the editorial team would want a lawyer there just to make absolutely sure that there wasn’t anything that can come back against the company.”

Although all the housemates had to sign a release form before entering the house in which they promised not to make defamatory statements, the editorial team did not want to make too many restrictions on their freedom of speech for fear of ending up with 10 weeks of stilted conversation.

No explanation was given to the housemates as to what would constitute defamation, a fact that would probably send a chill down many lawyers’ backs given the general level of intelligence in the house. Those who watched the show can confirm that Helen is unlikely to be the future George Carman QC.

“Language is quite a common problem in terms of teatime programmes,” says Pepin. The Channel 4 edited highlights programme was repeated daily at the
pre-watershed time of 5pm. “There are certain words that can’t be broadcast during family viewing. Before the series started we had to decide how many low-level swear words might be acceptable in a half-hour programme.”

But Pepin will not let on how many naughty words can be used, saying it is down to common sense on the part of the editorial team.

Hats also caused a slight headache, as this year’s housemates included Bubble -a man with a penchant for headgear. Under ITC ‘undue prominence’ guidelines, brand names cannot be featured in programmes. So the housemates were banned from bringing clothing with large brand names into the house to avoid having to film around the logos. Many of Bubble’s chosen hats were heavily brand-ed, so the team reached a compromise that he could take hats with smaller logos and, as long as he kept changing them, no one brand would receive undue prominence.
Pepin says that the production team showed quick thinking when it came to Bubble’s birthday. “They wanted to give him a Chelsea football shirt because he’s a big fan. But the current one has a very prominent sponsorship name on, so instead the production company very astutely gave him a 70s-style one without the sponsor’s name across the chest.”

Editorial justification is a defence to brand name exposure, so when Paul gave Helen a Gucci handbag and shoes, the brand use was justified because she had previously said that her ambition in life was to own such accessories.

On a similar theme, Helen and Narinder had a spat about whether the latter had called the hairdressers where the former worked “crappy”. “The legal team was called for advice on that one,” says Abbas. “I think E4 cut bits from that conversation and when it was later put back into the VT packages there were a couple of small things taken out just to make sure that there was nothing defamatory.”

This year’s series started a couple of weeks before the general election, which brought yet another load of regulations into the picture. Under the ITC code, programmes broadcast during the campaign period have to be impartial.

“There was a concern about whether they would get into debates on election issues,” says Abbas. Such a worry was unfounded as the housemates were more concerned about getting a tan than who was getting into Number 10.

But the election provided one problem that Abbas and Pepin could not find a way around. The producers wanted to follow a politician’s campaign trail to ask them who they wanted evicted from Big Brother. However ITC rules mean that politicians cannot appear on programmes during the campaign period unless it has been booked previously.

For this year’s series the release forms signed by the housemates contained two new clauses. One was to state that they had no connections with Channel 4, the other was not to harm the chickens.

“This year’s housemates were more troublesome. In 21 hours E4 did 1,300 edits’ – Neil Pepin, Channel 4”

The first was put in after rumours that Nasty Nick had had an affair with a Channel 4 lawyer. Pepin says that although this was amusing at the time and most definitely not true, the team decided this year to include the clause – just in case.

The other one was put in following idle conversation in the last series when food was running short over whether they would be allowed to kill the chickens that were provided for eggs.

Big Brother ruled no, but Peta (People for the Ethical Treatment of Animals) demanded reassurance that Marjorie the Chicken would not be going in the oven.
This year the chickens could cluck happily to themselves safe in the knowledge that Pepin and Abbas helped to save their feathers.

Brass Eye
It is difficult to think of a recent television programme that has caused a more extreme reaction than July’s Brass Eye satire on paedophiles.
The tabloids devoted hundreds of column inches to berating the comedy dreamt up by enfant terrible of satire, Chris Morris. The Sun even branded it “the sickest programme ever”.

As Prash Naik, Channel 4’s deputy head of legal and compliance, knows only too well, Morris is no stranger to controversy. Naik has worked with him since the first series of Brass Eye and dealt with the fallout caused by the ‘Cake’ scandal. For those of you who don’t remember, the programme first broadcast in 1997 featured several celebrities and MPs denouncing the new “made-up” drug Cake. One MP, David Amess, was so convinced by the set-up that he asked a question in Parliament about what was being done to stop the spread of the fictional drug.
The programme led to the formation of guidelines on ‘covert set-ups’ – where people know they are being filmed but are not aware of the end product. Prior to Brass Eye, the Independent Television Commission, which regulates the programme output of Channel 4, did not allow covert set-ups, so Naik says it has been great to be involved in expanding the boundaries. The new guidelines state that such set-ups with celebrities and those in the public eye should not be used without a public interest justification “if it is likely to result in unjustified public ridicule or personal distress”. These guidelines have since guided Ali G’s interviews and Trigger Happy TV.

As for the satire on paedophilia, the production process started around a year ago, says Naik, when Morris approached Channel 4 with the idea.
“Chris has quite a formidable reputation as someone who is very hands-on,” says Naik. “He has a detailed understanding of the regulations. He is no fool and able to spar very effectively with lawyers and commissioning editors.”
The legal considerations for Brass Eye revolved around four key issues. First, the issue of libel, which, says Naik, comes as second nature but was of heightened importance given the sensitivity of the subject. “Chris tends to use a lot of archive footage and mixes reality with fiction very cleverly,” says Naik, which means he has to be vigilant.

Then there is the issue of covert set-ups. “[The protocol means in] practice giving public figures sufficient information [about the subject matter] so that anyone with enough nous would make inquiries,” says Naik, adding that the set-ups were covered by a public interest defence given that the public has a tendancy to give additional weight to matters commented on by famous faces and especially MPs.
Third, there were matters relating to child actors. One source of the tabloid’s outrage was a scene which seemed to involve Morris asking a ‘paedophile’ whether he wanted to have sex with a small boy who was standing in front of him. However, Naik says that what the viewer saw was not what actually happened – it was a ‘cutaway’, meaning that the child was not in fact present for the dialogue but was edited in afterwards.

The last issue, and the one which could have brought criminal charges if Naik and the production team had misjudged it, was that of indecency and obscenity.
However, despite all the team’s work, Channel 4 has been ordered by the ITC to broadcast an apology after it found that inadequate warnings had been given that the programme was a satire and not a documentary. But the ITC did add that broadcasters had the right to produce satirical programmes about sensitive topics, including paedophilia.

Naik is unsurprisingly defensive about the programme. “We received 3,000 complaints but we also received 2,000 calls of support,” he says. “There were many who knew what the programme was about and watched it to be offended and watched it to complain. The likes of the Daily Mail were not prepared to listen.”