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Secret Filming Guidelines

Introduction

Surreptitious, or secret, filming and recording are powerful journalistic tools. Material obtained covertly may be the only independent account of the wrongdoing it captures. Secretly filmed or recorded exposés have led to the revision of working practices, changes in the law, the closure of institutions and have even sent criminals to prison. Advances in technology have enabled a degree of infiltration previously unheard of.

As a powerful tool which is capable of invading individuals' privacy, secret filming must be handled with due responsibility. Covert filming and recording are not just another programme technique and must be handled in accordance with best journalistic practice. Law-abiding individuals who have done nothing wrong are entitled to have their privacy respected. The right to privacy can only be overridden where the public interest outweighs it and any infringement of privacy must be warranted and proportionate.

Channel 4 has drawn up these rules of practice to ensure that the secret filming and recording carried out on our programmes is in accordance with the Ofcom Broadcasting Code ("the Code") and in order to maintain the highest journalistic standards.

After transmission of a programme, footage obtained covertly may become evidence in a criminal prosecution, in a libel or privacy action or in an Ofcom investigation. The way in which the footage is obtained must not, therefore, be open to criticism as to its authenticity or for the methods used to obtain it. In addition, Channel 4's reputation depends on its viewers being able to trust that what they see is true and justified.

This document must be copied to all members of your production team and it is the responsibility of the executive producer and the producer to ensure that its provisions are carefully read, understood and followed by all team members.

The Code defines "surreptitious filming or recording" as follows:

"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."

This document refers throughout to secret filming, but the rules apply equally to secret audio recording for the purpose of broadcast. Secret filming covers not just the use of covert camera technology but also certain situations where the subject does not realise they are being filmed, including when they may believe the camera is switched off.

 

Procedure before undertaking secret filming

Secret filming requires careful consideration and must be approved by Channel 4 in advance and in writing before the filming/recording is carried out (Stage I) and before it is broadcast (Stage II). This requirement will only be waived in exceptional circumstances. Please tell Channel 4 in good time of any plans to film secretly, and submit secret filming applications preferably at least three working days in advance, so that the approval process is not delayed. Last-minute requests run the risk of being rejected if there is no good reason for the delay in submitting them.

You should take the following steps: -

Consider how your proposals will meet the requirements of Section 8.13 of the Code, which states that the material acquired through secret filming must be "necessary to the credibility and authenticity" of a story which must itself be "prima facie in the public interest". In addition, there must be "reasonable grounds to suspect that further material evidence could be obtained" by secret filming/recording.

Discuss your plans with your Commissioning Editor and with the programme lawyer advising on your programme. If you do not know who your assigned lawyer is, ask your Commissioning Editor.

Make a detailed written request (known as Stage I) to the Commissioning Editor, copied to the lawyer, setting out your proposals including: 

  • Who will be operating the equipment and who will accompany them?
  • What equipment will be used and where will the secret camera(s) be placed, e.g. in a jacket or in a bag?
  • The subject(s) of the secret filming (i.e. the person/people/locations to be secretly filmed).
  • The proposed circumstances of the secret filming.
  • The reason you think it complies with the test under Section 8.13, i.e. what evidence is there of wrong-doing, why can't the footage be obtained conventionally, and why is there a public interest to the story? A public interest is not simply something of interest to the public. Your case must be logically argued.
  • What is the proposed cover story for the secret cameraperson and their companion(s)?
  • What arrangements have been made for the crew’s safety, where appropriate?

Make arrangements for the undercover reporter to be briefed by a Commissioning Editor and programme lawyer before undertaking the secret filming.

An outline pro forma Stage I application which you should follow and complete can be found here. Each new request should be numbered sequentially.

Every new secretly filmed encounter must be approved in a Stage I application prior to filming and any changes to the approved filming must be notified to Channel 4 in writing, beforehand if possible, for further approval.

 

Procedure for obtaining approval at Channel 4

Your Commissioning Editor will discuss your proposals with the programme lawyer and with his/her Editorial Head, where appropriate. The Stage I application, must be submitted to the Commissioning Editor, programme lawyer and Controller of Legal and Compliance. Once satisfied, the Commissioning Editor is responsible for submitting the Stage I to the Head of News & Current Affairs, or her appointee in her absence, for final written approval. The Stage I application, before it is approved and once it has been approved must be copied to the programme lawyer and Controller of Legal and Compliance. Your Commissioning Editor will tell you when approval has been granted or if your application has been turned down. In the latter case, you may be required to provide more information or satisfy any concerns raised.

 

Responsibilities of the Producer once secret filming has been approved by Channel 4

There must be set up an adequate logging system for secretly filmed rushes which shows:

  • The date and time of filming;
  • The place;
  • Who was filmed and who was present with the secret cameraperson;
  • When the rushes were received at the production company; and
  • When they were viewed by the producer and any other production personnel.

Channel 4 may wish to see rushes and/or accurate transcripts at any time during production, before transmission and after transmission, in the event of any legal or regulatory issue arising.

Original secretly filmed rushes and the logging system must be preserved for at least eighteen months from the date of the programme's transmission or longer if required by Channel 4.

Producers are directly responsible for logging and viewing all the secretly filmed rushes as soon as reasonably practicable, ideally no later than 24-48 hours after they are delivered to the production company.

The Executive Producer, if there is one and if not the most senior member of production, is responsible for ensuring that he/she has viewed all necessary secretly filmed rushes, depending on the nature of the project and production personnel.

The Producer (and Executive Producer where applicable) are responsible for telling the Commissioning Editor and/or the programme lawyer promptly of any matter of concern of which he/she becomes aware. This includes: 

  • Any inappropriate behaviour by the secret cameraperson and/or their companions, for example, any attempt to provoke or improperly entrap the subject(s);
  • Any matter suggesting someone's safety was put at risk (including the subjects of the secret filming);
  • Any matter which suggests that the footage is not authentic;
  • Any matter which could have a bearing on the direction of the story and the content of the film; and
  • No further secret filming should take place until the rushes of the previous secret filming have been checked by the Executive Producer, unless there is a compelling reason why this cannot be done.

 

Supervision of secret filming by the producer

The producer must ensure that:

  • All members of the production team have received a copy of this document and have read and understood its terms and that its terms are followed.
  • The person secretly filming is able to take on the tasks and responsibilities required of them. He/she must be familiar with the operation of the equipment and the risks involved. The safety of those undercover, and in many cases those with whom they interact, is paramount.
  • The undercover reporter has been briefed by a Commissioning Editor and programme lawyer and, wherever possible, Controller of Legal and Compliance before undertaking the secret filming.
  • He/she adequately supervises the secret cameraperson throughout their research as well as throughout the undercover operation.

If the secret cameraperson is not an experienced television journalist, before secret filming commences Channel 4 is likely to require to see and approve:

  • A police check on whether he or she has any previous convictions, if considered appropriate;
  • A detailed CV;
  • References, as appropriate;
  • A written report on any existing relationship between the secret cameraperson and the proposed subjects of the secret filming; and
  • The proposed CV and details of referees for the undercover role, where applicable.

These must be sent to the Commissioning Editor and programme lawyer.

If it is thought appropriate, even if the secret cameraperson is an experienced television journalist, Channel 4 may well require him or her to undergo a police check on their previous convictions if the undercover operation is likely to involve him/her in the technical commission of a criminal offence, for example buying drugs or handling stolen goods.

In the event that the journalistic purpose might involve the technical commission of a criminal offence, albeit without criminal intent, early advice should be obtained from the programme lawyer on the specific procedures, which should be followed. A clear public interest case will have to be made out. The physical evidence obtained may well form the basis of a subsequent prosecution of the individuals whose criminality has been exposed and will need to be the subject of an appropriate protocol to ensure its integrity is preserved as far as reasonably possible.

 

Rules of conduct for secret camera operators

The Producer (and Executive Producer, where applicable) are individually and directly responsible for the conduct of the secret cameraperson and anyone accompanying him/her undercover and for making them aware before filming commences that they: 

  • Must remember that whatever they say once the camera is running may one day be heard by the subjects of the covert filming. They must, therefore, be sensible about what they say and how they behave before and after the filming of the subject(s).
  • Are required to keep a detailed diary of their secret filming and all other meetings/conversations with the subject(s). This will form a contemporaneous record of their dealings with the subject(s) and/or a valuable evidential record if the camera fails.
  • Must agree their cover story with the producer and Channel 4 beforehand. The level of any deception must be proportionate.

A secret cameraperson and anyone who accompanies them undercover will usually be playing a role which goes well beyond simple observation. In the process of interacting with the secretly filmed subject(s) care must be taken to ensure that wherever possible the secret camera operator avoids encouraging conduct which might not have occurred at all but for their intervention. A careful line must be trodden to avoid a subsequent accusation of improper entrapment.

If a subject becomes aware they have been secretly filmed, Channel 4 must be notified as soon as reasonably practicable.

In exceptional circumstances the source of the story may also be the undercover reporter who also has a personal interest in the story, e.g. he or she is also the alleged victim of the subject of the investigation. In such circumstances additional scrutiny and vigilance is required to corroborate the report/story.

If any payment is made by the secret cameraperson or their companions to someone secretly filmed this payment should be referred to Channel 4, and, if possible, approved in advance. Such a payment may affect the credibility of that person and we may decide it is necessary to inform viewers about it.

 

Viewer Trust

The Viewer Trust Guidelines set out the rules and procedures designed to promote best practice in ensuring that viewer trust is maintained. It should be read and followed by all programme makers.

 

Undercover in an organisation or company

If the secret camera operator or other person going undercover is to be obtaining a position as an employee or similar position in a company or organisation, specific advice must be sought from programme lawyer beforehand. In particular, the following rules must be followed: 

  • Any remuneration received from the company/organisation must be paid into an account set up for that purpose.
  • The secret cameraperson must not purport to have qualifications or experience which he/she does not have where this might put them or others at risk or lead to legal problems.
  • The programme lawyer must be consulted before application forms for such positions are filled in, letters and emails written etc.
  • The programme lawyer must see and approve the proposed CV and details of referees for the undercover role.

 

Procedure for approval of the secret filming before transmission

Your Commissioning Editor is required to seek prior approval in writing from the Head of News & Current Affairs or her appointee (who may be Controller of Legal and Compliance) to broadcast material obtained by secret filming or recording. This includes material filmed/recorded surreptitiously or covertly by third parties. This is called a 'Stage II' request and the material for broadcast must satisfy the requirements of Sections 8.13 and 8.14 of the Code, i.e. it must be "necessary to the credibility and authenticity" of a story which must itself be "prima facie in the public interest."

Before approval is sought the Stage II application must have been seen and approved by the Commissioning Editor, Programme Lawyer and Controller of Legal and Compliance.  The secretly filmed material may raise other editorial, legal or compliance issues. These will be discussed with you at rough and fine cut viewings.

Before the Stage II is approved and once it has been approved, it must be copied to the lawyer advising and the Controller of Legal and Compliance if different.

A pro-forma Stage II application can be found here.

 

After transmission

If the secret filming has revealed the commission of a criminal offence by the subject(s) of the secret filming, Channel 4 may volunteer the secretly filmed footage and other material to the prosecuting authorities, subject to any confidentiality issues.

In these circumstances, it will usually be necessary for the police or other prosecuting authority to interview the secret camera operator and members of the programme team about the methods they used. In addition to the diary he/she is required to keep, the secret camera operator should be made aware that their notes and other records may be considered relevant and that they will be a pivotal witness in any subsequent prosecution.

In the event of legal proceedings or regulatory issues arising after transmission all rushes and other material will be central to our defence and so may be disclosed to the claimant, in the case of legal proceedings, or to Ofcom and possibly the complainant in the case of a regulatory issue.

Secret filming can be unpredictable with situations arising that need urgent attention. It is essential you maintain regular contact with your Commissioning Editor and feel free to call however trivial the question may seem at the time. If you are in any doubt about anything in this document or require advice please contact your Commissioning Editor and/or programme lawyer, as appropriate.

 

Filming with Drones

Aerial filming and photography and using remote-controlled multi-rotor UAVs (“Drones”) has become increasingly popular.

However, the use of Drones to film and the broadcast of such footage does raise a number of potential legal issues, including but not limited to:

  • the misuse of private information;
  • property owner rights;
  • compliance with the Information Commissioner’s Office (“ICO”) rules and data protection guidelines; and/or
  • compliance with civil aviation legislation.

 

Misuse of private information

What would amount to a misuse of private information would depend on where the Drone was intended to be flown. 

As a general rule, flying a Drone in a public space such as a park is not likely to amount to a misuse of private information, provided individuals caught on camera are not identified or undertaking anything of a private nature, such as receiving medical treatment. 

However, the courts have long recognised that individuals have the right to privacy over their home, and it is likely to amount to a misuse of private information if the Drone is flown over a private residence where the images contain information that cannot be seen from the public highway and are more detailed than what you would see on a public satellite image such as Google Earth.

Please note, there must be a strong public interest justification for filming and broadcasting any footage which might infringe someone’s privacy, for example evidence of breaches of planning or the criminal law.

Commercial property does not attach the same privacy rights but there may be privacy concerns if there are employees or other staff on the property at the time.

If you believe you have a strong public interest justification for flying a Drone over a private residence which may infringe the privacy of the owner, a secret filming Stage I application must be submitted to your programme lawyer for approval (see Procedure for obtaining approval at Channel 4 above). If the application was approved, we would need to disguise the identities of the people inadvertently caught in shot. Therefore, it is important that you get advice from your programme lawyer well in advance of filming.

 

Property owner rights

In addition to the points raised above there may be issues about property rights, including trespass and nuisance, with using Drones. 

A property owner owns airspace above their property which is generally accepted to be up to 500 to 1000 feet, but this will depend on the property type and what is needed for the owner’s reasonable enjoyment of the property. If using a Drone to fly over property you would also have to consider what height this is done at to avoid any property, as well as privacy infringement claims.

 

ICO rules and data protection guidelines

The ICO has issued guidance in its Data Protection Code for Surveillance Cameras and Personal Information which can be found here and here as to the responsible use of Drones.

The ICO state if the filming would capture images of individuals, arrangements should have to be made to ensure that filming only took place at such a time and in such a manner to ensure that there was no chance of filming such individuals and thereby creating personal data in relation to them, without justification under the Data Protection Act. If individuals are inadvertently captured, they may need to be blurred in the edit.

 

Aviation legislation

Prior permission from the Civil Aviation Authority (“CAA”) will need to be obtained to operate a Drone for ‘aerial work’, and also for flight in a ‘congested area’, which is defined as ‘any area of a city, town or settlement which is substantially used for residential, industrial, commercial or recreational purposes'.

Article 167 of the Air Navigation Order 2009 states that a small unmanned surveillance aircraft (i.e. a Drone with filming capability weighing 20kg or less) must not be flown in any of the following circumstances without obtaining the relevant permission from the CAA:

    1. over or within 150 metres of any congested area;
    2. over or within 150 metres of an organised open-air assembly of more than 1,000 persons;
    3. within 50 metres of any vessel, vehicle or structure which is not under the control of the person in charge of the aircraft; or
    4. within 50 metres of any person (other than those in control of the aircraft).

Programme-makers should always seek advice from their programme lawyer before attempting to film using Drones. Please also see the Factual Programme Guidelines.

If you need advice and you don't know who the programme lawyer is for your programme please ask your commissioning editor or call the legal & compliance department direct. Channel 4 also operates a Duty Lawyer system for programme advice out of hours. You can get advice 24/7 from the Duty Lawyer if your problem is urgent. The Duty Lawyer's contact details can be obtained from the Viewer Enquiries Department on the main Channel 4 telephone number.

 

 

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