Ofcom has said new “duty of care” rules despite their arguments they could have a “chilling effect” on reporting.
The new rules have been brought in to help safeguard participants in TV shows after the suspected suicide of a man who appeared on the Jeremy Kyle Show in 2019 and the deaths of former participants on ITV’s Love Island.
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However, the regulator did provide reassurances that the new requirements would be unlikely to be strictly applied to news programming.
Ofcom is adding requirements to section seven (fairness) of the Broadcasting Code meaning programme-makers must inform participants of any potential risks of taking part that may affect their welfare and any steps that will be taken in mitigation.
Ofcom will also require broadcasters to “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”.
They might be considered at risk if they are not used to being in the public eye, the programme is likely to attract a high level of press, media and social media interest, key editorial elements include potential confrontation, conflict or emotionally challenging situations, or they will be discussing sensitive, life-changing or private parts of their lives.
Although it decided against a formal exemption because the Broadcasting Act 1996 applies to all programme genres, Ofcom said it did not “envisage” the bulk of the new rules will apply to news programmes other than in exceptional circumstances “where a specific need for additional care or support is identified for a particular participant”.
“This will be a matter for broadcasters to determine and manage as appropriate,” it said. Current affairs programmes were excluded from this caveat.
The BBC, ITN, Sky News, Channel 4 and Russian broadcaster RT were among those lobbying for a full exemption for news and current affairs content with concerns that such high standards of care could put programmes off tackling sensitive subjects, investigations or rigorous interviews.
Ofcom said on Friday it acknowledged that it “may not be practical or possible to inform a participant of the possible risks to them from appearing in a news and current affairs programme” and that the risk to them is “likely to be very low”.
It also noted that existing guidance accompanying the part of the code in question states there “may be times when it is unnecessary to follow each and every point, for instance in the production of a news item”.
And it made clear broadcasters are not required to conduct a risk assessment to identify risk of significant harm to a contributor if it is justified in the public interest not to do so.
John Battle, head of legal and compliance at ITN which makes ITV News, Channel 4 News and 5 News, said: “It is welcome that Ofcom has explicitly stated these new measures, designed to protect contributors in TV and radio programmes, will rarely apply to news.
“Although an explicit exemption for news proposed by ITN and other broadcasters has not been accepted, Ofcom has acknowledged the strength of concern and accepted essentially that newsgathering practices will not be affected by the changes.”
ITN’s chief executive Anna Mallett said in August the changes “could see a reduction in airtime for eyewitnesses to key news events, members of the public giving their views, and victims of crimes or injustices sharing their stories”.
She added: “Ultimately, both viewers and the victims of injustices and news events will lose out – something which we believe would be significantly contrary to the public interest.”
The new rules will come into force for programmes that begin production on or after 5 April 2021, with further guidance on how they are expected to be followed to be published before then.
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.”