Access agreements (sometimes called Recording, Filming or Location Agreements) formalise the terms and conditions under which an organisation is prepared to grant a facility to programme makers (such as tag-along raids or any observational recording, use of pictures/films/recordings, pre-trial briefings etc.). At present, the BBC has not negotiated any standardised wording of such an agreement with any organisation.
We must not sign access agreements that surrender the BBC's editorial control, or otherwise compromise our editorial integrity. Editorial control requires the BBC or Independents working for the BBC to retain the right to record and broadcast material as freely as possible, as well as to edit accurately, impartially and fairly.
Access agreements often include a clause stating that the BBC retains editorial control. However, this may provide insufficient protection if we are signing away specific rights to determine the content elsewhere.
The following matters, commonly requested in access agreements, have the potential to compromise the editorial integrity of individual programmes and/or the BBC. Care is required when agreeing the terms of access.
The BBC does not offer the opportunity for contributors to see or hear programmes prior to transmission, save in exceptional circumstances. This may be to allow an organisation working as a 'collaborative contributor' (see Editorial Policy Guidance: Informed Consent) to offer advice (for example, if the subject matter has security or safety implications, or is otherwise delicate), or to be aware of the programme's content so that they can prepare for inquiries a programme may generate from other media.
Viewing or listening rights may also be offered when dealing with vulnerable contributors.
Any viewing or listening rights provided to contributors or facilitating organisations should not include a right to demand changes. It is acceptable to allow for representations to be made on any matters of concern (such as factual accuracy, impartiality or fairness) and for the programme makers to agree to give due consideration to any comments received, whilst operating to the standards of the Editorial Guidelines. However, editorial control and the decision on whether or not to change the programme should remain with the BBC.
Advice is available from Editorial Policy on any rare exceptions to this approach, prior to signing an access agreement. For example, it may be acceptable, in exceptional circumstances, to grant an organisation the right to request the removal of material that jeopardises security, safety or legitimate covert operations. However, any such exceptions require careful wording to ensure they do not allow for undue influence on editorial content which could undermine the integrity of the programme.
It is normally acceptable to sign an agreement that the BBC will act in accordance with the Editorial Guidelines (whether in whole or in part), or that the programme will meet standards in the Editorial Guidelines - for example, that the programme will be accurate or fair. Indeed, statements that reflect our Editorial Guidelines frequently meet many of the concerns of organisations providing access. Similarly, we may sign an agreement to act within the requirements of the laws of contempt. However, the crucial point is that the agreement should not pass to a third party the right to determine when those legal or editorial standards have been met. So, for example, access agreements should not normally allow organisations the right to veto material they solely determine to be inaccurate or that they believe may influence any pending legal proceedings.
Generally, we should resist attempts to include in access agreements matters that are essentially between the BBC or programme makers and individuals or organisations that are not party to the agreement - such as issues of contempt, trespass or consent of third parties. In the event that they are included, we should avoid making commitments that exceed our legal and regulatory obligations, or the high standards established in the Editorial Guidelines.
We need to retain editorial control to ensure that the audience can be given an accurate and impartial view of any organisation or individual who has allowed us to film or record. Access clauses which give contributors the right to demand that we stop recording at any time are not normally acceptable. Security or other understandable concerns that may arise from material we have gathered can usually be addressed in discussion with the organisation at (or before) the final edit stage. On rare exceptions when "stop recording" clauses are acceptable, they should normally be limited to specific circumstances and allow for the decision to be explained as close as possible to the time the instruction is given.
Any access clauses concerning consent of contributors should be in keeping with the BBC's Editorial Guidelines, balancing the individual's right to privacy with the BBC's (and others') right to freedom of expression in the public interest. So, we will normally seek the consent of people who contribute to our output, however people recorded clearly committing an offence or behaving in an anti-social manner in a public place will not normally be asked for consent.
We retain the rights in our material. Although it is usually acceptable to agree to supply copies of the transmitted programme to an organisation providing access, it should normally be specified that this is for private rather than commercial use. Copies should normally only be supplied after transmission.
Access agreements should not require the BBC to supply untransmitted material.
In the event of contractual disputes arising from an access agreement, some organisations will seek to oblige the BBC to participate in independent arbitration. Subject to the advice of Legal and Business Affairs, this may be an acceptable and cost-effective means of dispute resolution for the commercial aspects of a contract. However, any commitment to independent arbitration must be restricted so that it does not include disputes over clauses relating to the editorial content of the programme. Any failure to secure such a restriction could effectively hand final editorial control of a programme to a third party arbitrator - often with no right of appeal for the BBC.
In addition to the issues outlined above, there are many other conditions that may give cause for concern if imposed upon the BBC in return for access. In particular, attention should be paid to any indemnity clause. (See above: Indemnity Forms). If unacceptable access terms are insisted upon we should withdraw from the project.
Advice is available from Editorial Policy and Programme Legal Advice.
When access agreements cover non-editorial areas, including rights, re-use and facility fees, the relevant Legal and Business Affairs department should be consulted.
Access agreements are becoming increasingly common. Organisations such as the police, MOD customs, prisons and the Royal Household will nearly always require them when providing substantial or significant facilities. It is sensible to ask for them early to allow time for negotiation, rather than risk them being issued just before recording is due to begin.
Similarly, advice should be sought from Editorial Policy, Programme Legal Advice or Legal and Business Affairs, as appropriate, as early as possible and before any commitments are made to the contract or the production.