Handbook of Ethnographic Documentary, Part 2, Section 1.

CHAPTER 1
LEGAL ISSUES: PRINCIPLES
Every time a film is made, privacy is violated. Jean Rouch, 1975.1
Free speech is, in practice, what remains of speech after the law has had its say.
Geoffrey Robertson & Andrew Nicol, 20022
[This is a draft circulated to colleagues and friends for comment. Please do not cite
without permission. Paul Henley 2005]

The general purpose of this and the following chapter is to examine, irrespective of any
ethical considerations, the general legal constraints that are most likely to impinge on the
activities of the ethnographic documentarist. In this chapter, I will outline some of the
most important general legal instruments and principles that regulate documentary filmmaking whilst in the following chapter, I will consider in more concrete detail how these
impact on actual practice. In Chapters 3 and 4 of this Part, I will examine how the more
specialised legal domain of intellectual property rights impacts on the work of
documentarists.
In all four chapters, the body of law that I shall be considering has to a large extent been
developed in relation to the mass media, including the printed media as well as television.
Also, most of the particular examples that I shall draw on relate to the mass media. In
contrast, many of the readers of this book will probably be intending to make
documentaries for academic or other small, specialised audiences only. But from the
point of view of the law, documentary films are merely one particular form of
publication and the legal principles applied to them are therefore the same as those
applied to publication in any other medium, be it printed media such as newspapers,
novels and encyclopaedias, or visual media such as feature films and television game
shows.
Moreover, the provisions of the law regarding publication are not dependent on audience
size: as we shall see, in the eyes of the law, publication is publication even if there is only
one person on the receiving end of a communication. Similarly, an infringement through
a publication, whether it relates to defamation, the law of confidence or copyright, is an
infringement whether the publication is to one person or to many millions. The only
significant difference is that the level of damages that may be awarded to the victim of an

1
2

Rouch 1995a:88
Robertson and Nicol 2002:xiii

Handbook Of Ethnographic Documentary, Vol.1, Part 3 - Chapter 1, Legal Issues: Principles

infringement may reflect, though neither necessarily nor directly, the size of the audience
to whom the infringing material was published.
In short, it is not possible for documentary film-makers to take refuge from the law
simply on the grounds that they are addressing a small, specialised audience. But by the
same token, if film-makers cannot take refuge from the penalties of the law, they should
also be able to take advantage of the various exceptions and defences that the law allows
in order to balance the requirements of freedom of expression against other interests. If
infringement is not dependent on audience size, then the right to freedom of expression
certainly should not be either.
But before I begin this examination of the impact of the law on documentary
publication, I should enter two very important caveats. The first is simply that I make
no pretence to offer either an authoritative or a comprehensive legal opinion. The account
that I give here consists rather of a summary and analysis of the literature on media law
as I understand it to apply to the particular circumstances of documentarists.3 To this I
have added material gathered from various professional media codes and guidelines, as
well as a number of particular examples taken from various other sources. These include
the press, personal communications to me from documentary practitioners and my own
experience both as the director of a documentary film-training programme and as an
occasional freelance television documentarist. However, the array of laws potentially
affecting the use of visual media are not only formidable, as the media law authorities
Roberston and Nicol put it, but also often rather vague.4 In any real-life case of doubt or
difficulty therefore, readers should make sure to consult a properly qualified media
lawyer.
The second important caveat is that although anthropologist film-makers may shoot or
produce their films in many different legal jurisdictions, I shall restrict myself to
considering how their activities are potentially constrained by English law. This legal
system also applies in Wales and Northern Ireland, and as far as documentary-making
and other media-related issues are concerned, the law in Scotland, the Channel Islands
and the Isle of Man is largely the same, though there are a few significant differences.5
There are also many similarities between the fundamental principles of the English legal
system and those of the US and the various Commonwealth states whose legal systems
were developed out of the English system.6 Meanwhile, with the incorporation of certain
3

Of particular importance to me in this regard in drafting these first two chapters have been Media Law, by
Geoffrey Robertson and Andrew Nicol, and Law and the Media, originally by Tom Crone and revised by
Philip Alberstat, Tom Cassels and Estelle Overs, both of which were published in 2002 in their fourth
editions. I have also consulted the numerous websites maintained by media law firms and others which
offer commentary and analysis of the most recent developments in media law. These are referenced in the
footnotes and in the list of sources at the end of this Part. Particularly important in this latter category in
writing of these two chapters has been the website of the human rights organisation Liberty, whose address
is www.liberty-human-rights.org.uk.
4
Robertson and Nicol 2002: xiii
5
See McInnes 2002
6
See Overs 2002.

Handbook Of Ethnographic Documentary, Vol.1, Part 3 - Chapter 1, Legal Issues: Principles

European directives into English law, the distinctiveness of the latter is declining,
particularly in relation to the crucially important matter of privacy, as we shall have
reason to consider in greater detail below. Yet whatever the extent of these convergences,
each legal jurisdiction continues have its own particular bearing on documentary filmmaking practice. However, a comprehensive review of all these permutations lies far
beyond my remit here and I shall make no more than a few passing references to the law
as it affects documentary-making outside the jurisdiction of English law.
Notwithstanding these limitations, I would like to think that these chapters will still be
useful to documentarists working in various different jurisdictions by serving to alert
them, if only in a preliminary way, to the general kinds of legal obstacle and hazard that
they are likely to encounter.

General Legal Instruments

The sources of law potentially affecting documentary-makers in the United Kingdom are
of three basic kinds. Firstly, there is statutory law, established through Acts of
Parliament. Secondly, there is the Common Law, built up over centuries, which
incorporates and applies Acts of Parliament, often extending, refining or qualifying them
in various ways in the process. Finally, there is the legal authority delegated to regulatory
bodies, of which the most important for present purpose is the Office of
Communications, usually referred to by the inelegant acronym Ofcom.7 This body has
been charged, via by the parliamentary Broadcasting Acts of 1990 and 1996, with the
regulation of commercial television and radio in the United Kingdom. Amongst many
other duties, it is responsible for monitoring compliance with a programme code
developed in the light of requirements laid down not only by the Broadcasting Acts but
also by the extremely significant Human Rights Act which was enacted in 1998 and came
into force in October 2000. Whereas the former established standards on such editorial
matters as political impartiality, the portrayal of violence and decency at family viewing
times, the latter established certain principles with regard to the way in which information
was gathered and particularly, with regard to how this impacted upon the privacy of the
subjects of television programmes. But, at the same time, the Act gave strong
endorsement to the principle of freedom of expression.
The Ofcom Programme Code is aimed at commercial organisations that have been
granted a licence by the government to broadcast and it applies to cable and satellitedelivered programming as well as free-to-air channels.8 The BBC is not a commercial
organisation and as such is not regulated by Ofcom, but it has its own internal programme
7

Ofcom assumed its responsibilities in December 2003, taking over and consolidating the duties previously
performed by five distinct bodies: the Broadcasting Standards Commission (BSC), the Independent
Television Commission (ITC), the Office of Telecommunications (Oftel), the Radio Authority and the
Radiocommunications Agency.
8
Full details of the
Ofcom programme code can be found on its website at:
www.ofcom.org.uk/codes_guidelines/broadcasting/tv/programmes/programme_code.

Handbook Of Ethnographic Documentary, Vol.1, Part 3 - Chapter 1, Legal Issues: Principles

code, incorporated into its Producers Guidelines. All those who work for the BBC or
supply it with programmes are contractually obliged to observe the principles of these
Guidelines. These are based on very similar principles to those of Ofcom Code and also
reflect the requirements of the Broadcasting Acts and the Human Rights Act, the main
difference being simply that the BBC code is very much more detailed.9
Documentarists working outside television, including ethnographic documentarists
making films for academic purposes, are not bound by these programme codes in and of
themselves. Indeed certain requirements of these codes are completely irrelevant to them
from a legal point of view: for example, there is no specifically legal obligation on those
working outside television to observe due impartiality in the treatment of political
subjects, nor to preserve standards of taste and decency, at least not to the extent
envisaged by the codes. But in certain crucial respects these codes reflect broader legal
realities, of which even documentarists working outside television need to be aware.
These concern, for example, privacy, criminality and the filming of children to name but
three particularly contentious areas. Programme codes can provide a useful set of
indicators as to how these issues may be interpreted, not merely in a formal legal context,
but also in practice, out on the street, by the police and any other authorities on the
ground who might feel that it is their responsibility to monitor what the documentarists
on their patch are up to.
.
Crimes and torts
Of crucial importance to any discussion of documentary film-making and the law is the
elementary legal distinction between a crime and a tort. A crime is a legal offence for
which the perpetrator may be prosecuted by the state and, if found guilty, he or she may
be subject to a number of different types of punishment, including being fined,
imprisoned, given a suspended sentence, required to carry out community service or
simply bound over, i.e. obliged to give an undertaking to desist from whatever activity
it was that brought him or her before the court in the first place and to be generally wellbehaved in future. On the other hand, a tort, or delict as it is known in Scotland, pertains
to civil law, and constitutes an offence against a private individual or group. If the
perpetrator is found guilty of a tort, the injured party, known as a claimant in English
law, a pursuer in Scottish law and plaintiff in US law, may seek a remedy, i.e. sue
the guilty party for damages.
As these two chapters will show, there are all too many ways in which documentarists
could potentially fall foul of the law: indeed a pessimist might conclude that a
documentary is little more than a law-suit waiting to happen. Happily though, the
offences which documentarists are most in danger of committing, unwittingly or not, are
far more likely to be torts than crimes, and therefore will normally be subject to civil
actions for damages rather than criminal prosecution. Moreover, as civil actions are not
9

See www.bbc.co.uk/info/policies/producer_guides. The 2004 version of these Guidelines runs to an

impressive 358 pages, even excluding the appendices.

Handbook Of Ethnographic Documentary, Vol.1, Part 3 - Chapter 1, Legal Issues: Principles

only very expensive and time-consuming to pursue, and often uncertain in their
outcomes, they are only likely to be undertaken by those who are absolutely convinced of
their case and/or who are wealthy enough to dare to run the risk that they might be
saddled with the costs of the lawyers fees of both parties should they lose.10 In practice
therefore, the likelihood that a documentarist will be successfully sued for damages is
actually relatively remote. However, these are no grounds for complacency and any
documentarist needs to be aware of the possible legal pitfalls that attend the practice of
even the best intentioned of film-makers, particularly in the highly litigious world in
which we now live.

Freedom of expression
A more substantial principle, and one of fundamental importance to the discussion of all
the chapters in this Part is the principle of freedom of expression. Although this has a
long-standing pedigree in English political thinking, Robertson and Nicol stress that it
was a cultural assumption rather than a constitutional right until it was specifically
endorsed by the Human Rights Act in 1998. This incorporated the European Convention
on Human Rights (ECHR) which, amongst other provisions, guaranteed freedom of
expression in its Article 10. Prior to this incorporation, as the same authors describe,
freedom of expression had been all too easily over-ridden by other considerations in the
UK. In the US, on other hand, the principle of freedom of expression had long been
enshrined in the First Amendment of the Constitution, dating from as early as 1798.11
Although first developed in relation to speech and the written word, and often referred to
metonymically as free speech or as the freedom to publish, freedom of expression was
subsequently extended to include visual media as well. In a landmark case dating back to
1916, the presiding judge established the principle that:
No person possesses a right of preventing another person photographing him any more than he
has a right of preventing another person of giving a description of him.12
10

The increasing development of CFAs (Conditional Fee Agreements, more popularly known as no win,
no fee deals) has made litigation more feasible for those of limited means but it still remains a timeconsuming and potentially expensive process since although the claimants lawyers may waive their fees in
the case of loss, the claimant still would have to pay the defendants lawyers fees or at least take out
insurance against this possibility.
11
Even before the First Amendment, free communication of ideas and opinions had be identified as the
one of the most precious of the rights of man in the Declaration on the Rights of Man and the Citizen at
the time of the 1789 French Revolution (Robertson and Nicol 2002: 1-5, 33-36). But even before that, John
Milton had been an advocate of freedom of expression, writing in defence of freedom of speech as early
as 1673 (Winston 2000:70).
12
This case involved two magazines, one of which sought to prevent the other from publishing photographs
of a dog show to which the first magazine thought it had been given exclusive photographic rights by the
private ladies kennel club that was organizing the event. The judge rejected the claim because the
photographer from the second magazine had legally gained admission by purchasing a ticket that had been
offered for sale without any associated prohibition of photographs. Robertson and Nicol comment that
Sports and General Press Agency v. Our Dogs Publishing Co. deserves to be engraved on every press

Handbook Of Ethnographic Documentary, Vol.1, Part 3 - Chapter 1, Legal Issues: Principles

However, as implied in the comment by Robertson and Nicol quoted in the epigraph,
freedom of expression is far from absolute in English law. In practice, documentarists
freedom of expression is qualified by the right of both individuals and groups to seek
remedies for defamation and breach of confidence as well as by the intellectual property
rights that subjects or third parties may hold in the content or medium of expression.
Freedom of expression can also be legitimately constrained by the state acting in the
collective interest with regard to such matters as national security, the fair and just
operation of legal processes and the upholding of generally accepted moral standards.
No prior restraint
But notwithstanding these limitations, both in English law and under the terms of the
First Amendment, the concept of no prior restraint is integral to the application of the
principle of freedom of expression. That is, regardless of their place in society or their
known views and allegiances, subjects or citizens may not normally be prevented from
expressing themselves before they have actually done so. There are certain exceptions to
this provision, notably when free expression might breach a legitimate expectation of
confidence since once a confidence is in the public domain it is by definition no longer a
confidence, with possibly great commercial or personal emotional consequences. In this
case, it may be possible for the supposedly injured party to persuade a judge to issue what
is known as an injunction in England and an interdict in Scotland.
This is a legal measure which imposes a blanket ban on the dissemination of the disputed
material, at least temporarily, until it is established whether the claimant did indeed have
a legitimate expectation of confidentiality. The same applies to confidential matters that
if revealed, might endanger the security of the nation or result in a contempt of court,
i.e. undermine the administration of justice by publishing evidence pertinent to particular
cases that are currently in court and have not yet been resolved. The imposition of a legal
injunction is a serious business and any party that breaches it is liable to a heavy fine or
even imprisonment. But by and large, judges in the UK are reluctant to impose
injunctions, particularly after the endorsement given to freedom of expression by the
Human Rights Act. Instead they prefer to allow any claims to be made after the fact in
the form of a legal action for damages against the publisher of the disputed material.13
For although the law may allow free expression, it certainly does not guarantee protection
against the consequences. If what has been expressed can be construed as an offence
against the legitimate interests of other parties or those upheld by the state on behalf of
the collectivity, those responsible for the expression may find themselves liable to being
sued for damages or to criminal prosecution, or sometimes even both. As Robertson and

photographers lens; it establishes their right to snap and to publish anyone in a public place or, in the
absence of trespass, in a private place without their consent (2002:277)
13
See Tomlinson 2002 for a useful summary discussion of the principles governing prior restraint.

Handbook Of Ethnographic Documentary, Vol.1, Part 3 - Chapter 1, Legal Issues: Principles

Nicol comment, although speech may be free in English law, it can often prove to be very
expensive.14

Privacy
The legal issues surrounding privacy should be of particular importance to all
documentarists on account of the inherently intrusive nature of their work. If it is indeed
true, as Jean Rouch proposes in the epigraph, that every documentary film involves a
violation of privacy, then it is clearly advisable to be aware of any potential legal
consequences.
The influence of the Human Rights Act
The Human Rights Act brought about a fundamental change to the general lie of the land
in English law and as one of the results of this, there is currently a considerable degree of
uncertainty amongst legal commentators as to exactly what an individuals rights in
privacy actually are at the present time. But, for the moment at least, English law does
not recognize what lawyers like to refer to as a tort of privacy. That is, there is currently
no civil offence that corresponds to the invasion of a condition referred to specifically as
privacy.
In this latter regard, English law is highly unusual, even in comparison with other
jurisdictions in the English-speaking world. In the US, for example, there is a wellestablished tort of invasion of privacy that allows a plaintiff to sue for any act of prying
or intrusion into private matters that would be considered objectionable to a reasonable
person.15 On mainland Europe, privacy legislation is generally even more restrictive. 16
But in the UK, five separate bills aimed at the introduction of a statutory tort of privacy
have been put before Parliament over the last 40 years, but none has been successful.
Various government commissions have deliberated at length on the matter to no avail.
The reason that is most commonly given for this state of affairs is that it has proved
impossible to formulate legislation that would create a workable tort of privacy whilst at
the same time not significantly diminishing the freedom of expression that is essential to
a modern democratic society.17
14

Robertson & Nicol ibid.:x.

See Overs 2002: 317-318. In Canada, in 1998, the Chief Justice in Quebec found that a magazine had
transgressed privacy rights in taking and publishing a photograph of a 17-year-old student without her
consent. The judge ruled that the journalists right to freedom of expression was less important the girls
right to control her image (Grundberg 2002:120). Privacy rights are also more specifically protected in
Australia and New Zealand (Tait 2003.)
16
In France, the tort of privacy was first recognised as far back as 1858 and was incorporated into the Civil
Code in 1970 (See pi.greennet.org.uk/survey/phr2003/countries/france.htm). Due to the strength of this
legislation, most of the French public remained ignorant of the fact that the late President Franois
Mitterand had a second, extra-marital family until shortly before his death.
17
Anon 2002:xxxiii-xxxiv.
15

Handbook Of Ethnographic Documentary, Vol.1, Part 3 - Chapter 1, Legal Issues: Principles

But the absence of a specific privacy tort has not meant that privacy has lain unprotected
in English law, since, in its absence, the courts have used a variety of other measures to
the same end. The most important of these come under what is known in legal parlance as
the law of confidence. This is the body of law which has traditionally been applied to
relationships in which there is either some contractual agreement to maintain
confidentiality or at least a reasonable expectation of confidentiality.18 But a variety of
other legal measures have also been used, including those to do with defamation,
copyright and trespass and, latterly, the Data Protection Act 1998.19
However, since the coming into force of the Human Rights Act in 2000, there has been
mounting pressure to define a formal tort of privacy in English law. For although a right
to freedom of expression may be asserted in Article 10 of the ECHR, a right to private
and family life is asserted in Article 8. In its original formulation, this right is asserted in
relation to possible infringements by public authorities. But since the introduction of the
Act, the courts have shown themselves increasingly willing to support this right in
relation to infringements by private parties, including especially the media.
In any particular case, judges now see it as their responsibility to balance the
requirements of Articles 8 & 10. In so doing, they have specifically noted that in contrast
to the requirement of the First Amendment, the ECHR does not give presumptive
priority to freedom of expression over privacy.20 In determining this balance, the courts
are also required by the Human Rights Act to take into account any relevant privacy
code, which in the case of documentarists working for television means the Ofcom
programme code or the BBC Guidelines. Both these codes refer to Articles 8 & 10 of the
ECHR directly, and even whilst stressing the importance of freedom of expression, at the
same time impose on programme-makers the obligation to respect the privacy of their
subjects.
But despite the pressure, and disregarding the recommendations of both parliamentary
select committees and eminent members of the judiciary, the UK government has so far
steadfastly refused to propose legislation that would create a formal tort of privacy.
Instead what has happened is that the courts, as manifested in the judgements handed
down in a series of recent test cases, have been gradually evolving the law of confidence
18

Robertson and Nicol comment: 'English law is far more attuned to property rights than to human rights;
privacy has traditionally been protected, if at all, through a collection of quasi-proprietary actions. Breach
of confidence remedies have been built on the notion that confidential information is akin to property
whose owner ought to be able to control its use' (2002:281)
19
The Data Protection Act (DPA) was passed by Parliament in 1998 in response to a European Directive
and regulates the processing of personal data by organizations, both public and private. As such it
represents another example, along with the Human Rights Act itself, of the greater protection accorded to
privacy rights as a result of European legislation. So far the DPA has not featured greatly in media cases in
the UK and the awards made to the claimants have been trivial. However some media commentators
believe that in the future, the DPA will be used by the courts to extend not only privacy rights but also
image rights, i.e. claims by celebrities for proprietary rights over the use of their images. See Tench,
2004.
20
See, for example, the comments of the judges in Douglas-v-Hello (2001), quoted in Tait (2003).

Handbook Of Ethnographic Documentary, Vol.1, Part 3 - Chapter 1, Legal Issues: Principles

in such a way that its effects are seen by many legal commentators as being close to
indistinguishable from those of a tort of privacy. No longer is it necessary for the parties
to the litigation to be in some sort of prior relationship to one another, as was previously
the case with the law of confidence. Now, as long as a person knows, or should have
known, that another person has a reasonable expectation of privacy in a given situation,
the courts are increasingly liable to take the view that a so-called duty of confidence
arises.21
The significance of recent test cases in the UK
There have recently been a number of test cases in the UK that have resulted in the redrawing of the boundaries of privacy rights to a significant degree. These cases have
mostly involved celebrities protesting about the intrusions of paparazzi photographers
working for the printed media who are less subject to regulatory controls than
documentarists working for television.22 Even so, the judgements handed down in these
cases also have potentially highly significant implications for documentarists, including
even those who are working outside television.
The first such implication is that photography has come to be regarded by the courts,
apparently in contradiction to the landmark 1916 judgement cited above, to be more
intrusive in privacy terms than purely verbal or textual modes of description. This was
made particularly clear in one of the recent celebrity cases, involving a super-model,
Naomi Campbell, who sued a national newspaper for publishing photographs of her
coming out of a drug therapy clinic. On appeal, this case went as far as the House of
Lords, which finally found in favour of Campbell by a narrow majority.23 In the view of
the legal commentators on the case, it was specifically the publication of photographs that
21

Indeed one of the judges sitting in a recent case even went so far as to say that the law of confidence was
better encapsulated now as a misuse of private information. See Gill 2004.
22
The activities of the printed media are not governed by a regulatory body with delegated legal authority
from an Act of Parliament, as in the case of Ofcom. Instead, they are regulated by the Press Complaints
Commission, the PCC, a voluntary body set up, financed and staffed by the printed media themselves.
Although the PCC does not have the same legal status as Ofcom, it does have a code of practice which, in
its most recent formulation (June 2004), faithfully reflects the requirements, and even echoes the language
of the Human Rights Act insofar as privacy provisions are concerned (see www.pcc.org.uk/cop/cop.asp,
Section 3). However, in the past, the PCC has been much less demanding than Ofcom and its predecessors
in the interpretation of what constitutes a reasonable expectation of privacy on the part of the subjects.
This explains why they have not censured the publication of pictures taken by paparazzi using extremely
long lenses of celebrities in situations that most right-thinking members of society, as the conventional
legal phrase has it, would regard as private.
23
This action was begun in March 2002, taken through the Court of Appeal in October 2002 and finally
resolved in the House of Lords in May 2004 (see Gill 2004, Smith 2004). Other celebrity cases seen by
many legal commentators as important in the evolution of a tort of privacy by stealth include, amongst
others, the attempt of the footballer Gary Flitcroft to get an injunction preventing the Sunday Mirror
publishing details of his extramarital affairs (A-v-B&C, 2002) and the action for damages by the actors
Michael Douglas and Catherine Zeta-Jones against Hello! Magazine. The grounds for this claim were that
Hello! had published pictures of their November 2000 wedding taken by an unauthorized paparazzo, when
they had an exclusive deal with another magazine. Generally referred to as Douglas-v-Hello, this action
was begun in 2001 and was still going through the appeal process at the time of writing in early 2005.

10 Handbook Of Ethnographic Documentary, Vol.1, Part 3 - Chapter 1, Legal Issues: Principles

undermined the newspapers case: if it had merely published a written account, it may
well have won. For, as one of the Law Lords commented in his summing up, it was the
use of photographs that, for him, tipped the balance in Campbells favour. Without the
photographs, he observed, he would have considered the Article 10 freedom of
expression rights of the newspaper and the Article 8 privacy rights of Campbell to have
been about even.24
A second and perhaps even more significant implication of these cases is that the
boundary between the public and the private is becoming increasingly blurred from a
legal point of view or, to put it more precisely, the extent of the privacy rights associated
with each of these physical domains is becoming increasingly unclear. Previously, it had
been the general rule of thumb, for paparazzi and documentary film-makers alike, that it
is generally permissible to film anyone in a public place, without risking an infringement
of that persons privacy rights, whether or not consent has been obtained. But the
judgement that the photographs of the supermodel infringed her privacy rights even
though they were taken in a public place, namely, in the street, has shown that rule of
thumb to be no longer reliable, particularly when the subject is in some sense physically
or mentally vulnerable, as was deemed to be the case with Campbell.
The significance of recent cases in the European Court of Human Rights
Certain recent judgements handed down by the European Court of Human Rights, based
in Strasbourg, further undermine any nave faith in this rule of thumb. One of these cases
involved a British man, a certain Mr. Geoff Peck, who brought a case against his local
town council for releasing a video recording by one of its CCTV security cameras
showing him being apprehended by police one night in August 1995. This was broadcast
on television without his consent and without disguising his identity sufficiently for him
to be unrecognisable by his family and friends. Stills were also published in the local
newspaper. The facts of this case were somewhat unusual in that although he was acting
in a suspicious fashion, the claimant was not engaged in a criminal activity but was,
rather, in a state of great mental distress.25 After the footage appeared on television, he
complained to the regulatory bodies then responsible for broadcast television, alleging
24

See Smith 2004.

The recording showed the claimant carrying a large knife whilst walking through the centre of
Brentwood in Essex. The CCTV operator alerted the police who disarmed him on camera, only to discover
that he was in a state of extreme depression and that he was carrying the knife because he was
contemplating suicide. Indeed, he had already slashed his wrists, though this had not been recorded on
camera. After taking him to the police station and providing him with medical attention, the police released
him without charge. Hoping to demonstrate the benefits of its CCTV security system, the town council then
passed the recording on to the local television station, which broadcast the material a number of times
without sufficiently disguising the claimants identity and sometimes not at all. In the stills from the
footage published in the local press, the claimant was also recognizable. Although the claimant
acknowledged that the CCTV security system had worked to his benefit and may even have saved his life,
he was highly distressed that his friends and family should be able to see him in the condition that he was in
at the time of the recording.
25

11 Handbook Of Ethnographic Documentary, Vol.1, Part 3 - Chapter 1, Legal Issues: Principles

that an unwarranted infringement of his privacy had taken place. They upheld the
complaint but being merely regulatory bodies, they had no powers to award damages.26
Dissatisfied with this outcome, Mr. Peck then applied for the case to be considered by the
European Court in April 1996. The Court finally reported in January 2003 and found in
his favour, arguing that the town council had infringed his Article 8 rights on the grounds
that although the applicant had been in a public street, this was not sufficient for it to be
excluded from being considered a private situation. The applicant, the Court held, was
not there for a public event where he might have the expectation of being filmed, nor was
he a public figure, nor could he have anticipated how widely his behaviour would have
been seen since he could not have foreseen that it would be shown on broadcast
television. Although the Court recognized the town councils right to publicize its CCTV
system in the interests of deterring criminal behaviour, it noted that not only was there no
criminal behaviour involved in this case, but there was no good reason why the council
could not have sought the applicants consent before releasing the material. On these
grounds, it awarded Peck damages and costs against the UK government, albeit more
than seven years after the original events had taken place.27
Another judgement pointing in the same direction was handed down by the European
Court in June 2004. This case was brought by a minor European royal figure, Princess
Caroline of Monaco, who for a number of years had been attempting to use legal means
to prevent paparazzi working for the German tabloid press from pursuing her every
appearance in public, be it alone or in the company of her children or her German
husband. However her attempts had not been successful on account of German privacy
legislation, which, although generally stricter than the English system with regard to the
rights of ordinary citizens, does not provide protection for public figures once they are in
a public place.28 The princess argued, at various levels of the German legal system, that
26

The bodies concerned were the

Independent Television Commission (ITC) and the Broadcasting
Standards Commission (BSC) whose functions were later incorporated into Ofcom. Typically, the Press
Complaints Commission were less responsive to the subjects privacy concerns and rejected his complaint
with regard to the stills which had appeared in the local press simply on the grounds that the events had
taken place in a public place.
27
See www.worldlii.org/eu/cases/ECHR/2003/44.html, Peck-v-UK. The sums awarded to the applicant
were relatively modest given the long wait, i.e. non-pecuniary damages for emotional distress of 11,800
and 18,075 in costs. The court also found that under UK law, in the absence of a tort of privacy which
would have allowed him to sue for damages, he had no effective remedy for his complaint, which in itself
was in contravention of yet another article of the Convention, namely Article 13. Given that there is still no
formal tort of privacy, this latter part of the Courts judgement remains unaddressed (Bhogal 2004). Since
the events of this case, the legal terms on which CCTV cameras may be used, including the conditions
under which footage may be released to the media and other third parties, have been tightened up under the
provisions of the Data Protection Act. See www.informationcommissioner.gov.uk.
28
. According to the provisions of a law passed in 1907 and still in force in Germany, a persons image or
likeness cannot normally even be taken, let alone published, without his or her consent. This restriction
even applies post-mortem in that the publication of a deceased persons image requires the consent of his or
her family for a period of ten years after his or her death. However German law makes an exception in the
case of public figures or those whose lives may suddenly become of public interest for a limited period on
account of contingent current circumstances. These may include everything from a natural disaster to

12 Handbook Of Ethnographic Documentary, Vol.1, Part 3 - Chapter 1, Legal Issues: Principles

this exception should not apply when the public figure concerned was engaged in what
was essentially a private activity, even though it may be taking place in public. She
claimed that much of the coverage of her activities - including such things as shopping,
eating at a restaurant or playing tennis - was merely for entertainment purposes,
satisfying the readerships voyeurism and contributing to the tabloid proprietors profits.
This coverage could not be construed as contributing to the public debate essential to the
maintenance of a modern democracy and, as such, the invasion of her privacy that it
entailed could not be justified.
Having failed to get satisfaction in the German courts, Princess Caroline also took her
case to the European Court for Human Rights.29 This found unanimously in her favour,
arguing that when the disputed materials concern a private activity that does not form part
of any wider public debate, then freedom of expression considerations should be given a
narrower interpretation. One judge even went so far as to say that in earlier judgements,
the court had made a fetish of freedom of expression - as a result of American influence
no less - and expressed the view that it was time that the pendulum swung back in favour
of privacy rights. On this general line of reasoning, the court concluded that Princess
Carolines Article 8 rights were not sufficiently protected by German law.
As a number of legal commentators have underlined, if the German legal system can be
taken to task by Strasbourg for its inadequate protection of Article 8 privacy rights, then
the English system would be even more vulnerable to this kind of criticism. Although the
judgement in this particular case is not formally binding on the English courts, the latter
are required under Section 2 of the Human Rights Act to take the judgements of the
European Court into account when reaching their own decisions. Whether a formal law of
privacy is eventually enacted or the courts simply go on extending the law of confidence,
this judgement represents one more form of pressure on the English courts to provide
greater privacy protection under the terms of Article 8, particularly when images are
involved. As a result, some legal commentators maintain, the profession of the paparazzo
could become extinct.30 But this trend in the direction of privacy legislation also threatens
to make life more complicated for documentarists as well.

Consent
In many circumstances, the best defence that documentarists can offer in relation to a
legal claim against them is that they were given the consent of the subjects to film. But,
in practice, the form in which this consent can be given varies considerably. At one
success in the lottery. In these cases, the privacy rights of the subjects are often said to be left behind at the
doorstep of their house, i.e. when they are in a public place, they may be freely photographed without their
consent. See Lundmark & Chlup (2001).
29
In the literature, the case is referred to as
von Hannover-v-Germany, since Princess Caroline made the
application under her married name.
30
See Tomlinson (2004), also Coad (2004a).

13 Handbook Of Ethnographic Documentary, Vol.1, Part 3 - Chapter 1, Legal Issues: Principles

extreme, it can take the form of an elaborate document prepared by a lawyer, in which the
subject, having been fully informed of the terms and conditions of filming, signs away in
perpetuity his or her right to sue for a range of infringements on the part of the filmmaker. At the other extreme, it can consist of no more than non-verbal, implicit consent
as evidenced simply by the fact that the subject, although never formally consulted, did
not actually complain whilst the film-making was taking place. In-between lies consent
that is given verbally and recorded on camera, and consent which although not recorded
in either a verbal or a written form, it is clearly reasonable to assume given that the
subject has allowed the film-maker to follow him or her around for an extended period of
time. However, should the film-making give rise to any kind of litigation, the more
detailed and well-recorded the consent, the more clearly that the terms and conditions
have been explained to the subject, the later in the film-making process that consent has
been given and the more rights that the subject has been persuaded to waive (i.e.
including those that might relate to copyright as well as those related to confidence and
privacy considerations), the more useful that consent is likely to be as a defence in the
court-room.
Consent and the regulatory codes
Somewhat curiously given the degree of emphasis that they now give to respect for
privacy, the codes regulating the activities of television documentarists do not deal at any
great length with the actual process of obtaining consent. The BBC Guidelines emphasize
the quality of the consent rather than the mechanism for obtaining it. That is, they stress
the importance of fairness and honesty in dealing with subjects (or contributors in
television-speak). Thus, they insist on the need to explain such matters as what the film
will be about, who else might appear in it and even the simple fact that the material
recorded will be edited and therefore that not all, and possibly none of the material filmed
with the subject may appear in the final version. Implicit in the BBC Guidelines is the
assumption that those who agree to participate in a BBC programme should give their
consent on an informed basis, though the Guidelines are perhaps a little equivocal about
just how much information should be freely offered to subjects, as indicated by the
qualifying phrase that I have emphasized in the passage below:
From the start, programme makers should be as clear as they can be about the nature of the
programme and its purpose. Unless there are special and legitimate considerations of
confidentiality they should be open about their plans, and honest with anyone taking part in the
programme.

Nor do the Guidelines specifically impose a requirement on the film-maker to warn the
subjects of any potentially undesirable consequences that might follow from appearing on
national television in terms of notoriety or disrespectful comment in the press. Without
such a warning, it is debatable whether or not the subjects consent can be said to be fully
informed. But the general thrust of the Guidelines is to ensure that no contributor should
feel unfairly treated by the corporation or pressurized into giving consent.31
31

See www.bbc.co.uk/info/policies/producer_guides, Chap. 3, Section 2.

14 Handbook Of Ethnographic Documentary, Vol.1, Part 3 - Chapter 1, Legal Issues: Principles

Although generally much briefer, the Ofcom Programme Code is more explicit about the
actual process of obtaining consent.32 It draws, first of all, a distinction between public
and semi-public places. In the case of the former, it requires editors and producers to
satisfy themselves that words spoken or action taken by individuals are sufficiently in
the public domain to justify their being communicated to the television audience without
express permission being sought from the individuals concerned. No doubt with Peck-vUK in mind, it urges them to be particularly careful in this regard about material from
CCTV cameras. This leaves a residue of uncertainty because it is not at all clear by what
criteria film-makers are supposed to determine whether something is sufficiently in the
public domain to go ahead without consent. But apart from this rather unsatisfactorily
imprecise proviso, the main thrust of the relevant clause is that there is no need to seek
permission from individuals filmed in a public place, regardless of their importance
within the film.
On the other hand, when filming takes place in a semi-public place such as a hospital,
factory, or department store, the requirements are rather more demanding. In the first
place, the Code presumes that permission to film has been obtained from the management
of the place in question. Then, in the case of named individuals who play an important
part in the film, or who are shown, even anonymously, in particularly sensitive
situations (psychiatric and intensive care patients are given as examples), the film-maker
is required to get individual written consents (my emphasis) to use the material. If, for
reasons of age, disability or infirmity, subjects cannot either give or refuse consent,
permission should be sought from next of kin or the carers responsible for them. But,
significantly, the Code imposes no restrictions on the filming of minor characters:
As a general rule, no obligation to seek agreement arises when the appearance of the persons
shown is incidental and they are clearly random and anonymous members of the general public.

The Ofcom Code also enjoins film-makers to be particularly sensitive to privacy issues in
a number of typically arising situations. When accompanying the police on a raid on a
private establishment, for example, film-makers are warned that even in these
circumstances there is a possibility that filming individuals without their consent could
constitute a breach of Article 8. They are also told to avoid impromptu interviews. i.e.
without prior consent, on private property or in other locations where subjects might have
a reasonable expectation of privacy, such as in restaurants or churches.
In the case of filming children, the Code stresses particularly the need to get the consent
of a parent or guardian as well as of the child. This reflects the more general fact that the
developing tendency to provide greater protection to privacy generally has been
associated with a very particular concern to protect the privacy of children. This
preoccupation appears to have been greatly re-inforced by the simultaneously developing

32

See Section 2 of the Ofcom Programme Code.

15 Handbook Of Ethnographic Documentary, Vol.1, Part 3 - Chapter 1, Legal Issues: Principles

concern about paedophilia in the UK.33 Whatever the exact combination of reasons, there
is now a firm obligation on documentarists working for television to be highly
circumspect about childrens privacy.34 As a result of these strictures, where once any
current affairs report on educational matters would begin with a wide angle establishing
shot of a school playground, there are now typically only ground level shots of childrens
feet or anonymous shots of their backs. A television film-maker who wants to film a
sequence, however brief, within one particular class-room, or anywhere else on a
schools premises, in which individual children may be identified, is now required to seek
consent from the parents or guardians of every child in the class. In order to ensure that
parents or guardians have a reasonable time frame within which to reply, this consent is
often sought several weeks beforehand. All this can greatly increase the logistical
complexity of a shoot.35
Release forms
But although both regulatory codes discuss the importance of obtaining consent, they do
not lay down with any degree of precision how and when these consents should be
obtained, nor how elaborate they should be, nor what form they should take other than
that they should be written when filming in semi-public and, presumably, private
locations (though this last is not actually specified in the Ofcom Code). Yet,
notwithstanding this limited treatment in the regulatory codes themselves, the companies
which hold television broadcasting licences will not normally accept delivery of a
documentary from the production company that actually made it unless it is accompanied
by a veritable sheaf of signed documents in which all subjects with anything more than
the most minor of roles consent to their appearance under a series of precisely stipulated
33

Shortly after the Human Rights Act came into force in October 2000, an article in
The Times reported
that a local council in Scotland had banned the taking of photographs at any performances, including
nativity plays and Christmas concerts, at the 77 primary schools for which it was responsible. The
immediate reason for imposing this ban, which affected some 11,000 children, was that a small group of
parents had expressed fears that images taken at school performances might fall into the hands of
paedophiles. After briefly considering the imposition of the ban on the grounds of the privacy requirements
of the Data Protection Act, the council had turned instead to the Human Rights Act to legitimate its ruling.
Other parents then complained that they had not just a right, but even a duty to capture their childrens
childhood on film for them to look back on in future years. The council soon back-pedalled and lifted the
ban, recognising that the assessment of the Act by its legal department had been hasty. All ended well in
this case, but not before providing a neat illustration of how the combination of the fear of paedophilia and
the overzealous interpretation of privacy legislation originating in Europe can lead to quite unnecessary
constraints on other freedoms. See English & Owen 2000.
34
As one legal commentator has pointed out, there is some imprecision in the regulatory codes about to
where the upper age limit of the category children should be set for the purposes of giving consent to
media intrusions. Taken as a whole, English law provides no generalisable norm. In many areas of law, the
age of majority is considered to be 18, though the age of consent as far as sexual intercourse is concerned is
set at 16 years. For other purpose, however, a child is defined in law as being under 14. See Boundy 2004
35
If David MacDougall had been required to work within the now standard UK television norms in making
his recent widely-hailed series about the Doon School in India, he would have been obliged to seek the
consent of the parents or guardians of more than 800 boys scattered all over the Indian subcontinent. This
would have been a mammoth operation and would, in MacDougalls view, have effectively rendered the
whole project impossible (pers. comm. 2004).

16 Handbook Of Ethnographic Documentary, Vol.1, Part 3 - Chapter 1, Legal Issues: Principles

terms and conditions. Typically, the latter require the subjects to waive, in perpetuity and
with respect to all media, known or yet to be invented, any and all rights that they might
have in the material filmed.
These consent documents are known as release forms (or more vulgarly amongst
television folk as blood chits). For documentarists, there are two particularly important
points to be borne in mind about these release forms. The first is incontestable: their
primary purpose is not to provide protection to the subjects but rather to provide
protection to the film-makers and the companies whom they are working for against any
subjects who might decide to pursue a hostile legal action at a later date. Secondly,
though perhaps more debatably, the protection that release forms provide is more
concerned with infringement of the copyright of the subjects than with the infringement
of their privacy or any other non-proprietory rights. But whilst this may be generally true,
it is also the case that a release form could be useful from a legal point of view in the
event of a film-maker being accused of an invasion of privacy or, as we shall consider in
the next chapter, the related tort of breach of confidence.36
But from the point of view of most film-makers on location, the obligation to gather
release forms is nothing less than a highly tedious bugbear. It is only too easy to forget in
the general hurly-burly of shooting a film and if there are a large number of subjects
involved, it can be a very time-consuming process. It can be particularly onerous for
documentarists working alone or in small crews who already have a great deal to be
thinking about both from an editorial and technical point of view. But given the general
direction in which not only privacy legislation is moving, as described above, but also
copyright law, as we shall consider in detail in Chapters 3 and 4 of this Part, it is easy to
understand why the compliance lawyers advising both broadcast licence-holders and
production companies, not to speak of the insurance companies providing them with
insurance against hostile litigation, should be increasingly insistent on the necessity of
release forms.37
There is no set formula for drafting a release form and, in practice, they can vary
considerably in scope and complexity, depending on the production entity and the
purposes of the production. A number of examples of release forms are presented in the
Appendix at the end of this Part, which readers may wish to use as models from which to
develop a version suited to their particular needs. However if it is true that release forms
are more concerned with copyright than with privacy rights, as I have suggested, readers
would probably be best advised to wait until they have considered the copyright matters
discussed in Chapters 3 and 4 before developing their own customized releases.

36

See pp. 000-000

Robertson and Nicol, commenting on printed press lawyers, but in terms that would also apply to media
lawyers generally, remark that they will generally prefer to err on the safe side, where they cannot be
proved wrong. The lawyers advice provides a broad penumbra of restraint, confining the investigative
journalist or broadcaster not merely to the letter of the law but to an outer rim bounded by the mere
possibility of legal action (2002:xiii)
37

17 Handbook Of Ethnographic Documentary, Vol.1, Part 3 - Chapter 1, Legal Issues: Principles

This raises the question as to whether anthropologists and other documentarists working
outside television should also consider themselves obliged to gather release forms. As
their activities are not regulated by Ofcom, there is no formal reason for them to consider
themselves bound by its programme code requirements. However, just like anybody else,
anthropologist film-makers are still subject to the more general provisions of the law and
it would therefore be only prudent to assess, in relation to any particular production,
whether a release form could come in handy in the event of litigation.
In making such an assessment on a purely strategic legal basis, and irrespective of any
ethical considerations, one should first take into account the practical likelihood that an
aggrieved subject will actually pursue an action for damages. Given the potential expense
and complexity of doing so, coupled with the fact that anthropologist documentarists
typically carry out much of their work amongst the underprivileged and marginal, or in
distant countries of the developing world, the practical likelihood that they will actually
find themselves subject to hostile litigation is surely, in most cases, remote.
However not all anthropologists will find themselves working in such conditions and
some might well find themselves filming subjects who could and would take them to
court if there was something about their films which they did not like. In these
circumstances, it could be advisable to get a release form signed, though whether it would
be of any practical benefit in the event of litigation would very much depend on the basis
on which the claim against the film-maker had been made. For although a release form
might provide some defence against a breach of privacy or copyright, it is unlikely to be
of any avail in a claim for defamation.
Generally speaking then, in most instances the potential practical legal benefit of release
forms for anthropologist film-makers is likely to be no more than marginal. However, as I
shall argue in Chapters 5 and 6 of this Part, in which I consider documentary ethics, the
process of signing a release form can have the advantage of concentrating the minds of
all parties on the fact that a film is being made that will transcend the typically intimate
relationship between anthropologist film-maker and subject, and will be placed before a
much wider public who may not view it in the same light as they do - with potentially
negative consequences.

Public interest
Despite the increasing legal emphasis on the importance of consent, both the law
generally and the regulatory codes continue to acknowledge that it is not always
appropriate or possible to seek consent. In these situations, it may still be permissible to
film and disseminate the results provided that this can be construed as being in the
public interest.
In some legal contexts, there is considerable overlap between the concepts of public
interest and freedom of expression in the sense that freedom of expression may be

18 Handbook Of Ethnographic Documentary, Vol.1, Part 3 - Chapter 1, Legal Issues: Principles

referred to in legal judgements, particularly since the passage of the Human Rights Act,
as being in itself in the public interest. However there are circumstances in which public
interest may be successfully offered as a legal defence when an argument based simply
on the right to freedom of expression would not be considered by the courts to be
sufficient. But the practical difficulty here for documentarists is that the definition of
what constitutes the public interest is almost always going to be a contentious matter.
Historically, there has also been a tendency on the part of the courts in the UK to
acknowledge that there is a legitimate public interest in the affairs of public figures, even
in personal matters that in the case of less well-known subjects might be considered to be
protected by a reasonable expectation of privacy. Even whilst often repeating the
hackneyed legal aphorism that there is an important difference between matters of public
interest and matters the public find interesting, English judges have shown themselves
disposed to define public interest very broadly insofar as public figures are concerned,
applying it to almost anyone in the public eye, either permanently or temporarily, be it in
politics, the arts or entertainment. They have also included those whose activities affect
substantial numbers of people, such as otherwise anonymous managers and directors of
companies.38 Moreover, they have shown a tendency to permit the publication of highly
personal details about the lives of such public figures on the grounds that, whether or not
they have sought to be considered as such, they act as role models for the population at
large.39
On this last issue however, as we have seen, there has recently been something of a shift
in legal attitudes and in a way that is particularly significant for film-makers. For, as I
described above in relation to the Naomi Campbell case, it was the use of photographic
images that contributed to the Law Lords coming down, by a narrow majority, in favour
of the claimant. Although they recognized that it was in the public interest that the fact of
her drug addiction be reported, particularly as she had previously lied repeatedly in
denying it, they did not accept that this public interest extended sufficiently to cover the
photographs of her leaving the drug addiction clinic.
However where a public interest defence is still likely to be accepted is in cases in which
the subject has been involved in some form of malpractice, criminal activity or other
highly anti-social behaviour. As examples of a public interest that may justify an
intrusion on individual privacy, the Ofcom Code lists the following: the protection of
public health and safety, the detection and exposing of crime or misleading statements by
individuals or organisations, and incompetence in public office. But it recognizes that
public interest can also be invoked in relation to the dissemination of images of
individuals who have not themselves been guilty of any misdeed, but who have been
caught up in events of such significance that a legitimate public interest in publication
overrides their right to privacy. This might be the case, for example, in the aftermath of a
natural disaster, some bomb outrage or a violent political demonstration.
38

See Cauchi 2002:16

T his was, for example, an important consideration in A-v-B&C, 2002, the case dealing with the extramarital affairs of the professional footballer Gary Flitcroft. See Pike 2002.
39

19 Handbook Of Ethnographic Documentary, Vol.1, Part 3 - Chapter 1, Legal Issues: Principles

But whatever the circumstances in which public interest may be invoked, the Code
stresses the importance at all times of proportionality:
Any act that relies on a defence of public interest must be proportional to the actual interest
served. This will be a balancing exercise which will depend on the individual circumstances of
each case. Where, for example, there is a significant intrusion into an individuals private affairs,
particularly where that individual is innocent of any offence and/or where there is a significant
risk of distress, an important public interest is likely to be required.

In short, the determination of whether privacy considerations or the public interest should
prevail is not something that can be resolved by reference to a hard and fast set of rules
applicable across the board, but rather must be the result of a considered judgment in
each and every particular case. As a result, like so much else in the law relating to the use
of visual media, for practising documentarists there remains an unsettling residue of
uncertainty about what they can or cannot do without risk of breaking the law.
*******

These then are some of the most important general legal principles that govern
documentary film-making in the United Kingdom. With these in mind, we can now turn
to consider more precisely in the following chapter how they impact on the actual
practice of film-making
21/3/5 7936 words, 10,233 including footnotes