Watching Their Wellbeing

Ofcom implements new rules to protect the welfare of TV and radio participants

29 March 2021

Author: Hannah Stewart
Practice Area: Media and Defamation

Broadcasting

Under new rules introduced by Ofcom, broadcasters must ensure that a greater emphasis is placed on caring for the mental health and wellbeing of participants in TV and radio shows. The new measures will apply to programmes that begin production on or after Monday 5th April 2021.

Reviewing the Regulations

Following a steady rise in complaints about the health and wellbeing of programme participants, Ofcom launched a review of their protections for programme participants in 2019. The review came after the tragic deaths of former Love Island stars Mike Thalassitis and Sophie Gradon, and former Jeremy Kyle participant, Steve Dymond. These untimely deaths reinforced society’s growing concerns about mental health and wellbeing issues, and Ofcom’s decision to review current regulations reflected society’s calls for openness about discussing and addressing these issues.

In their review, Ofcom engaged with a range of individuals and organisations, including former programme participants, psychiatrists and psychologists, broadcasters and academics. The majority of respondents expressed strong support for the introduction of protections for participants in programmes and, in December 2020, Ofcom announced that they would be strengthening the protections in their Broadcasting Code (“the Code”).

Update One: Informed Consent

The first amendment is the expansion of the “fairness” rules in Section 7 of the Code. Ofcom has expanded the rules on informed consent by adding that contributors should normally be:

“…informed about potential risks arising from their participation in the programme which may affect their welfare (insofar as these can be reasonably anticipated at the time) and any steps the broadcaster and/or programme maker intends to take to mitigate these.”

This means that potential participants will be aware of potential risks to their welfare including, for example, increased media exposure and social media attention, or if the programme might encourage them to disclose private aspects of their lives, together with steps the broadcaster or producers intend to make to control and mitigate these risks. It allows participants to consider all potential factors to make an informed decision before agreeing to appear on the programme.

Update Two: Risk of Significant Harm

Section 7 has been further updated, requiring that:

“Broadcasters should take due care over the welfare of a contributor who might be at risk of significant harm as a result of taking part in a programme, except where the subject matter is trivial or their participation minor.”

In addition, a number of examples are given where a contributor might be regarded as being at risk of significant harm as a result of taking part in a programme, including:

  • Where they are considered a vulnerable person;
  • Where they are not used to being in the public eye;
  • Where the programme is likely to attract a high level of press, media and social media interest;
  • Key editorial elements of the programme include potential confrontation, conflict, emotionally challenging situations; or
  • The programme requires them to discuss, reveal or engage with sensitive, life changing or private aspects of their lives.

Broadcasters are explicitly required to conduct a risk assessment to identify any risk of significant harm to the contributor, unless it is justified in the public interest not to do so. The level of care due to the contributor must be proportionate to the level of risk associated with their participation in the programme.

Further Updates

Ofcom has also strengthened the “offence” rule under Section 2 of the Code. For programmes beginning production on or after 5th April, material that may cause offence to viewers and listeners must be justified by context. Such potentially offensive material now includes the treatment of people who appear to be put at risk of significant harm as a result of their taking part in a programme. In practice, this means that producers will need to consider adding material to programmes to reassure audiences of a participant’s wellbeing where they appear to be at risk of significant harm.

Protections have also been strengthened in relation to participants under 18 years old.

Going Forward

The new rules mean that, for most genres of programmes, broadcasters and producers will need to carefully consider the current and potential vulnerability of participants alongside the nature of the programme, its audience and potential publicity. It will involve a lot more work for producers, who will be required to carry out and document risk assessments, including highlighting particular areas of concern that may give rise to a risk to a contributor’s welfare.

As the new rules are included within the “Fairness” section of the Code, participants will be able to bring complaints to Ofcom over “unfair treatment”. The rules may also be cited by contributors when seeking to withdraw their consent to participate before the programme is aired, with potential arguments that the producers had not taken sufficient care over their welfare or had not sufficiently warned them of the risks of taking part.

Adam Baxter, Ofcom’s Director of Standards and Audience Protection, said:

“People taking part in TV and radio programmes deserve to be properly looked after. Our new protections set a clear standard of care for broadcasters to meet – striking a careful balance between broadcasters’ creative freedom and the welfare of the people they feature.”

The new rules will be a welcome addition for potential participants, their families, viewers / listeners and society in general, knowing that these mental health and wellbeing issues are being addressed, and that individuals are better protected from and prepared for the often life-changing impact of appearing on a TV or radio programme.

*This information is for guidance purposes only and does not constitute, nor should be regarded, as a substitute for taking legal advice that is tailored to your circumstances.

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