Ofcom introduces new rules protecting the mental health of those participating in TV and radio

The question: What measures will TV and radio broadcasters have to put in place to protect the mental health of participants?

Key takeaway

TV and radio broadcasters will have to take due care over the welfare of people who might be at risk of significant harm as a result of taking part in a programme they produce. The participants must also be informed about any potential welfare risks that might arise from their participation and any steps the broadcaster or programme-maker intends to take to mitigate these risks.

The background

In March 2021 Ofcom updated section seven (specifically 7.15) of the Broadcast Code to include a provision requiring broadcasters to take due care over the welfare of a participant 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.

The new rules apply to all programmes that began production on or after 5 April 2021.

The development

Ofcom also specify that a participant might be regarded as being at a risk of significant harm as a result of taking part in a programme for reasons including:

• they are considered a vulnerable person
• they are not used to being in the public eye
• the programme involves being filmed in an artificial or constructed environment
• the programme is likely to attract a high level of press, media and social media interest
• key editorial elements of the programme include potential confrontation, conflict, emotionally challenging situations
• the programme requires them to discuss, reveal, or engage with sensitive, life changing or private aspects of their lives.

Broadcasters should, under the new rules, conduct a risk assessment to identify any risk of significant harm to a participant, unless it is justified in the public interest not to do so. However, the level of care required will be proportionate to the level of risk associated with their participation in the programme.

Why is this important?

The rule changes set a clear standard for the protection of participants’ wellbeing, especially given the level of notoriety and criticism often faced by participants in, for example, reality shows such as Love Island. The Broadcast Rules therefore require that broadcasters take steps to help protect them from the onslaught of attention and undoubted impact thereof on their mental health.

The rules will apply to online broadcasters, such as YouTube, and can include original programming that might put participants at risk of damage to their welfare mentally.

Any practical tips?

According to Ofcom’s guidance on the new rule, published in March 2021, there are some best practice considerations that broadcasters and programme-makers should be mindful of:

• having written guidelines and/or procedures in place setting out key considerations for working with participants in particular programmes, and production staff should be familiar with them and have access to them where needed
• making and retaining records, contemporaneous notes, and/or any other documentation, which can assist in demonstrating what information and support was offered and provided to a contributor during production
• seeking of independent expert advice from qualified specialists where needed at different stages of production, including in the participant selection phase to help with the selection process can assist in identifying, before production begins, people who may be vulnerable, or may become vulnerable. This early identification can then enable the assessment and management of any reasonably foreseen risks in advance
• participants should have access to specialists in certain circumstances without the need for intervention by production staff, and participants should be given a nominated single point of contact within the production team with whom they can liaise throughout the production process
• aftercare should also be given to participants and programme-makers should be flexible to the type of support a contributor might reasonably require or request and remain responsive to a contributor’s needs for an appropriate period of time after the programme has been broadcast.