How we Obtain Informed Consent
In this article
We obtain informed consent from our contributors in a variety of ways depending on the circumstances of their contribution.
We should aim to obtain consent in a form that is provable. Wherever practicable, it is advisable for consent to be in writing (by letter, email or contributor consent form) or recorded on film or tape, demonstrating the information given to the contributor and their agreement to participate.
However, in many cases contributors will indicate their consent tacitly, simply by taking part in our content. This usually applies to people interviewed at short notice, including people in the news and those who take part in 'vox pops'. It is clearly impractical to obtain written consent for time sensitive and most 'on the day' contributions, including those to local radio, continuous news and other news outlets.
On occasion, we may be able to demonstrate consent by virtue of continued participation. For example, a contributor may give verbal consent at the start of a project and their ongoing involvement in the making of a programme (for example, through further filming or recording) will imply their continued consent.
Nevertheless, even when consent is implied, we will need to be clear that the contributor had sufficient understanding of the nature of the output.
Significant Changes after Consent has been Obtained
Remember that we should normally make contributors aware of significant changes to a programme or other content as it develops and prior to transmission, if such changes might reasonably be considered to have affected their original decision to participate, had it been known at the time. If the contributor seeks to withdraw consent as a consequence of these changes it is advisable to consult with Editorial Policy.
A good contemporaneous note of conversations with potential contributors can be important to proving consent was properly informed.
Ofcom's 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 says "complaints about fairness may occur some time after the programme is transmitted and after relevant freelance staff have left or independent production teams have been disbanded. Therefore it will usually be helpful to make and maintain written records of discussions with contributors before filming and/or broadcast and obtain informed consent in writing. It may also be helpful to the broadcaster to provide information on the areas of questioning, where practicable, in writing."
Use of Standard Contributor Consent Form
Do I need to use this form?
Standard contributor consent forms have been drawn up for use when engaging a substantial contributor not covered by the standard contract procedure, regardless of the length of the contribution or fee.
These are primarily a legal matter, rather than a fulfilment of the Editorial Guidelines. Whilst they formalise consent and are often required to prove copyright before programmes can be resold (see below) they do not necessarily demonstrate that there has been properly informed consent. The forms are clear about the programme makers rights to use and re-use a contribution but contain only basic information about the programme and the nature of the contribution. Informed consent will often require more detailed information for the contributor. The forms are also legalistic in tone, when a more informal approach may be more useful. For example, when dealing with a long and involved project, (particularly if the contributors are vulnerable) it can be advisable to lay out 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 - including support for the contributor and any viewing rights. This information may be laid out in a letter, email, conversation which is noted contemporaneously, etc. Such a conversation may be in addition to, or instead of, using the standard contributor consent form (remembering that a consent form may be required to demonstrate that the BBC has a full assignment of Copyright in the contribution before a programme can be resold).
Form Guidance Notes
1. There are four versions of the standard form:
- Standard contributor consent with fee payable
- Standard contributor consent with no fee payable
- Version with amended moral rights clause and fee payable
- Version with amended moral rights clause and no fee payable
When a form is used, one of the standard editions should be offered in the first instance.
2. Once the form is signed, once copy should be given to the contributor and a second copy retained with programme records.
3. The programme details should be as currently known and reflect the primary use of the contribution. Consideration should be given to offering further information about re-use (see below).
4. The BBC seeks a full assignment of Copyright to be certain it can use the contributions in all existing and future media. To ensure it is valid, an assignment of Copyright should be in writing. Without a written assignment, the BBC's rights position may be unclear. It may also be difficult to give third parties, who may be financing the programme or taking licences of it, warranties as to the rights they are being granted. Although there are statutory provisions relating to spoken word copyright which may enable broadcast use without formalities, these do not cover non-broadcast uses such as CD-ROM, showings to non-paying audiences and home video. Contributors may be reassured to know that it is only the Copyright in the particular form of words used which is being assigned in the contributor consent forms. They could, for instance, give further interviews on the same subject without infringing the Copyright they have assigned to the BBC. This paragraph also requires contributors not to use third party copyright material. This is unlikely to arise unless they read written material or show photographs, drawings etc, in which case the production team may wish to ensure that the contributor, and not a third party, is the copyright owner.
5. The authors of literary copyright works, which can include spoken word contributions to programmes, have so-called 'moral rights' in relation to their works. These rights are distinct from Copyright. Moral rights are personal to the author / contributor and cannot be assigned or licensed. They can, however, be waived in a written document. The key moral rights, which are set out in the Copyright Designs and Patents Act 1988, are the right of paternity (i.e. to be identified as author) and the right of integrity (i.e. the right to object to derogatory treatment of the work).
It is BBC policy to obtain waivers of these rights wherever possible. It may in some circumstances be onerous to have to comply with the paternity right by crediting or otherwise identifying every contributor. The integrity right may enable a contributor to intervene in matters to do with editing the programme and possibly prevent its transmission. It may be possible to reassure contributors by giving non-contractual indications, as part of the informed consent process, as to how the production team intends to act with regard to credits and editorial matters.
6. The limitations to this indemnity provision are to ensure that claims do not arise where there is no link between the BBC's conduct and the damage alleged or in circumstances where the BBC has taken all reasonable steps to ensure damage does not occur.
7. This provision should reassure contributors that, if they are inadvertently defamatory, the BBC will not expect them to stand alone. Except where they may have been negligent or malicious, the BBC would normally indemnify them should legal proceedings follow.
Re-Use and Reversioning
‘Re-use and reversioning’ applies to content that is re-used, distributed or otherwise made available, in whole or in part, in ways that might not have been contemplated at the time of production.
The expansion of digital channels, co-production deals, syndication on third party websites and new platforms using archive has increased the re-use and reversioning of material. The Contributor’s Consent Form assigns all rights in the contribution to the BBC, but we should still consider the potential impact of doing so 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. When it was not implicit at the time they gave consent, and so far as is reasonably practicable, we should inform contributors of our intention to re-use material.