In the first in a new series, media lawyer Clare Hoban talks about the legal issues behind TV shows that focus on the emergency services.
Television audiences have a seemingly insatiable appetite for so-called ‘blue light’ shows where programme makers film with emergency services, and so they are a regular feature in peak time schedules.
Often called ‘ride along’ programmes, producers may be accompanying the police as they raid the house of a suspected drug dealer (bashing down the front door with the ‘big red key’), following a dramatic air ambulance search, filming the RSPCA investigating an allegation of animal cruelty, or filming in the midst of a heart-stopping lifeboat rescue.
Shows like these raise a wide range of legal and compliance issues right from the start of filming and beyond broadcast.
The inherent high risk of legal claims and complaints to television regulator Ofcom means that, behind the scenes, there will invariably be an experienced ‘content lawyer’ helping the producer and broadcaster get the strongest content on air with the lowest risk. This involves advising on the impact of privacy and data protection law, compliance with the Ofcom Code rules on privacy and fairness, as well as defamation and the law of contempt of court. Smart producers and broadcasters take legal advice from the very outset.
Stage 1 – Getting the Access Right
The producers will have secured ‘in principle’ access to the emergency service in question but, before filming can begin, the exact terms of this access must be carefully and clearly agreed in a contract – an ‘access agreement’.
The necessary access to staff and the agency’s centre (and even rescue vehicles) must be in place so that the film crew can capture the best footage and take the viewer to the heart of the action.
Access agreements cover a multitude of things including: the extent of the access and any limits on access; how the producers will obtain contributors’ consent to appear; who owns rights in the footage recorded e.g. copyright in all footage recorded should belong to the producers, so that the programme can be fully exploited; and whether or not contributors or the emergency service providing the access will be able to view programmes before transmission, and any rights they might have to make changes.
Viewing rights for those providing access are not unusual in ‘blue light’ programming, and are often helpful in avoiding pitfalls and sensitivities that only the emergency service itself can identify.
Where viewing rights are granted, it is very important that editorial control of programme content remains with the programme makers, and this should be made explicitly clear in the access agreement.
Step 2 – The Pre-filming Protocol
Before filming starts it is crucial for the content lawyer to assist in formulating and drafting a best practice protocol for everyone in the production team to read and follow. Due to the chaotic, fast-moving nature of filming with the emergency services, an editorial protocol setting out “dos and don’ts” will greatly assist the crew to deal with the variety of practical problems likely to arise on the ground and to comply with the regulatory rules for this genre.
Step 3 – Filming: Consent or Public Interest?
Ofcom’s Code makes it clear that privacy may be infringed at two separate stages: filming and broadcast. There are rules and detailed practices to follow in the Code designed to ensure that programme makers’ filming is ‘warranted’ – which generally means the public interest outweighs any privacy right.
One of the key issues in all blue light programming is considering when it is necessary to obtain informed consent to film and broadcast the footage of those that have been filmed.
When filming with ambulance teams, for example, the people they are assisting are likely to be seriously ill, injured and possibly in extreme distress.
Such vulnerable individuals have strong legal and regulatory rights to privacy, which can trump programme-makers’ and broadcasters’ rights to freedom of expression and the public interest arguments to film and broadcast in some circumstances.
Someone being treated by paramedics who is crying with pain, confused, or even unconscious, is clearly in no position to give informed consent. If the police are attending a house following a report of domestic violence, it may be warranted to film the incident but how does the director decide when consent is needed and from whom?
The public interest arguments concerning the alleged ‘perpetrator’ and the apparent ‘victim’ may be very different. The Production Protocol will spell out a number of scenarios to help the film crew make these difficult judgments, but a quick call to the content lawyer for advice on how best to proceed is not uncommon in a tricky situation.
Step 4 – the Edit
Once the programme maker has captured the footage at the scene, detailed consideration must be given to whether and how it can be included in the programme. If consent was obtained to film, do they need the person’s additional consent to broadcast the material? What if it is refused or, once given, withdrawn? Does the public interest warrant going ahead without consent? In that scenario, do any steps need to be taken to anonymise anyone or to inform them before broadcast? These are all complex questions on which the content lawyer will have to advise.
Programme makers will also require advice on compliance with The Data Protection Act 1998 which amongst other things requires that all personal data must be stored securely, with no exemption for “journalistic material”. If programme makers have attached head and body cameras to the medics, for example, it’s even more likely that they will have captured sensitive and graphic material. Any footage will need to be stored safely and securely, complete with encryption or comprehensive password protection.
Step 5 – the Broadcast
The need for legal advice doesn’t end with filming. Often, once the programme has been delivered to the broadcaster and transmission is imminent, there will be a key development. For example, an individual who features heavily in the programme may be charged with a criminal offence and so the lawyer has to navigate the law of contempt to avoid prejudicing the active case and preventing a fair trial.
Creative solutions can range from changing the order of episodes (to ensure the relevant programme transmits after any trial) through to carefully removing identifying details which sufficiently lower the contempt risk to allow broadcast of the programme.
In addition, where there are legal proceedings, programme-makers need to keep a close eye on what happens. For example, if a programme is predicated on a person being convicted but they are found not guilty, or charges are suddenly dropped, the programme lawyer will advise on how to edit the show to ensure that it is fair and accurate and that there are defences to defamatory claims.
Step 6 – After Broadcast
A request from the agency which granted the access for unbroadcast footage is also a regular occurrence in blue light programming and so a process to deal with this will be set out in the access agreement.
However, it is not uncommon to be called upon to advise. In fact the police do not have an automatic right to obtain ‘journalistic material’ which has special protection under the law.
In most cases where the police want programme-makers’ footage, they would be required to go to court to obtain a ‘production order’ satisfying the criteria as set out in the Police and Criminal Evidence Act 1984 to ensure that journalistic rights are not undermined. A content lawyer would navigate this process for the programme maker.
Clare Hoban is a senior lawyer at Abbas Media Law