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Pulling the plug on a television documentary:a case study

January 2010 - Media, Entertainment & Sport. Legal Developments by Schillings.

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Out of the blue, you receive a call from a broadcaster proposing to feature your company in a prime-time documentary. The broadcaster tells you that they have footage covertly filmed inside the company by a former employee, accompanied by sensational stories from the same source. After carrying out initial enquiries, you ascertain that the former employee left on bad terms, the footage is staged and the stories are, in some instances, untrue and, in others, wildly exaggerated. You must stop the broadcast. Your next two calls are to your PR or communications team and your media lawyers. These teams will work alongside each other to apply just the right amount of pressure on the broadcaster to ensure that the story is dropped. You gather your team around you and prepare as much information as possible to hand over to the media lawyers.

Legal tools

In circumstances such as those described above, it is highly unlikely that lawyers would secure an injunction preventing the broadcast. In the case of purported investigations and exposés of this kind, broadcasters will often seek to rely on the Reynolds defence. Following the decision in Reynolds v Times Newspapers Ltd, subjects of an investigation are entitled to:

  1. i) know the precise nature of the allegations being made;
  2. ii) know the gist of the story that may be broadcast;
  3. iii) be provided with the broadcaster’s evidence in support of any allegations (including details of sources and copies of any film footage on which it intends to rely); and
  4. iv) be given a reasonable opportunity to respond and have the substance response conveyed in the programme, should it be broadcast.

Another relevant factor is the source of the allegations. Broadcasters should be extremely wary of relying on impartial sources. Such sources are unlikely to be credible and it would be irresponsible for a broadcaster to rely on their claims, unless these are verified by an independent party. Correspondence with the broadcaster should bring to its attention all of these points, detailing any of their failures in this regard. This warns them that they may not be able to rely on a defence of responsible journalism in the event that they decide to proceed with the broadcast. The Reynolds principles are also enshrined in the Ofcom Code of Conduct, which applies to all broadcasters. Rule 7 of the Ofcom Code states that broadcasters and programme makers should ‘be fair in their dealings with potential contributors to programmes’. For example, a broadcaster may be in breach of this rule if its employees have carried out undercover filming or posed under an alias without disclosing their interest in the programme to obtain footage or information for broadcast.

process

Continuing the scenario described above, your media lawyers write to the broadcaster immediately to confirm the proposed broadcast date, notifying it that the allegations they are intending to broadcast are denied as grossly defamatory. The lawyers remind the broadcaster of their responsible journalism obligations under the Ofcom Code of Conduct and the Reynolds principles, requiring an undertaking from them within 48 hours that they will not broadcast the material. The correspondence sets out the reasons for the former employee’s dismissal and the cloud that hangs over their conduct, detailing a pattern of fraudulent activity that discredits them and means the broadcaster would be reckless to rely on their input. In response to the request, the broadcaster provides a copy of all relevant footage and a more detailed breakdown of the allegations they propose to make. This extra information illustrates that a lack of understanding of your business has led to a series of false conclusions. Armed with this information, lawyers are able to head off each and every allegation and piece of footage in turn, explaining that the broadcaster has been misled and was in danger of broadcasting defamatory content for which it would be liable.

Solution

Success! Now that the broadcaster knows the problems with the story, it agrees to cancel the broadcast. This case study demonstrates the way in which media lawyers and a PR team can work together to prevent damage to a client’s reputation.

Emergency

But what if you have just hours, rather than days or weeks, to stop a broadcast? Although a responsible broadcaster should inform you about a forthcoming programme and give you ample time to comment, they may not do so until the day of broadcast, if at all. Should such a scenario unfold, don’t despair as you can still take action! Schillings has been contacted by clients about items that a broadcaster is threatening to run on the evening news the same day and successfully intervened to stop the broadcast. In these situations, lawyers write and/or speak to the broadcaster to obtain suitable undertakings, or will even seek an emergency injunction if appropriate. Such intervention will usually result in the broadcast being toned down, postponed or cancelled entirely. The most crucial thing is to act quickly once informed of a potential broadcast and pick up the phone to your media lawyers. If you switch on to the problem promptly, you may just be able to prevent the broadcast for good.

By Laura Tyler, associate solicitor, and Samantha Domin, solicitor, Schillings.E-mail: laura.tyler@schillings.co.uk ;samantha.domin@schillings.co.uk.

Reynolds v Times Newspapers Ltd[2001] 2 AC 127