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The Ofcom Gap: VOD, UK Broadcasters and Ethical Fact-Based Filmmaking
Jessica Gunning in Baby Reindeer Netflix’s breakout hit Baby Reindeer brought into vivid relief an issue long at play in the UK: VOD platforms do not have to jump through the same regulatory hoops as broadcasters, for whose programs “compliance” is a necessary headache. The UK’s extensive regulatory framework for broadcasting is overseen by the UK’s Office of Communications (Ofcom), a super regulator covering a vast array of communications from postal services to internet provision and online safety, radio and television. The ten sections of Ofcom’s broadcasting code provide a detailed roadmap for broadcasters to ethically make and deliver programs, addressing a vast number of topics: protection of children, issues around harm and offense to the audience, undercover filming, informed consent and the special treatment of vulnerable contributors.
The code has evolved and expanded over the last two decades. Though it does not have a specific libel section, rules about accuracy, fairness and privacy would have ensured rigorous camouflaging of any identifying characteristics about real individuals while making a fact-based drama like Baby Reindeer. But at Netflix, which is not currently beholden to Ofcom, the attempt to disguise the stalker at the heart of the Baby Reindeer series seemed slapdash enough that internet sleuths very quickly identified Fiona Harvey, who has since launched a lawsuit. Had Baby Reindeer been made for the BBC, ITV or Channel 4, arguments go, in-house lawyers would have ensured that due precautions were taken to mask the identity of real people depicted in the program, particularly as it was loudly signposted with “This is a True Story.”
Much of the discussion has compared Baby Reindeer to the BBC’s I May Destroy You, where Michaela Coel similarly dramatizes a history of abuse. The identity of the abuser was so masked in that series that internet sleuthing did not ensue. The program was made within the framework of the BBC editorial guidelines, which also have to comply with Ofcom. The BBC editorial guidelines predate the Ofcom code and are even more detailed in their scope, taking into account the fact that the BBC is a public service broadcaster funded by a license fee and held to a higher level of accountability than other broadcasters.
As is often the case in the digital age, regulation can lag behind behavior. Recent changes to the Ofcom code provide more protections for reality show contributors after a spate of suicides from Love Island participants. These changes include more detailed risk assessments and screening around casting, including the strengthening of informed consents so that participants understand what they are signing up for and the public scrutiny they will likely undergo.
Ofcom gives the public a chance to complain about any aspect of rule-breaking, then decides internally whether to carry out a full investigation. Investigations based on complaints can be incredibly detailed and a drain on resources for broadcasters and production companies. For example, a 2023 investigation into the infringement of privacy of a member of the public by the popular documentary series 24 Hours in Police Custody ran to some 33 pages in its explanation of how it examined the episode and partially upheld the complaint. Sanctions range from insistence on corrections to financial fines to, rarely, revocation of broadcasting licenses. In February 2022, in the wake of Russia’s invasion of Ukraine, Ofcom launched 29 different investigations into Russia’s coverage on RT. Ultimately it concluded the state broadcaster was not “fit and proper” and revoked its license in March.
Platforms operating outside of Ofcom regulation need not jump through as many hoops regarding how contributors or the public might be impacted by their program making. Lawyer Sandhiya Sophie Argent, co-founder of the media law firm Creators Counsel, says the Ofcom regulatory framework should serve as an ethical structure regardless of the platform. “Sometimes I will say to clients, ‘I know you’re not strictly regulated by OFCOM, but you might want to keep in mind this, that and the other.’ From my perspective, it doesn’t make that much of a difference in the delivery of my advice. I still think it’s a really good structure.”
However, it is costly to undertake compliance procedures, such as following duty of care procedures for reality TV participants, which can include mental health protections like psychotherapists and aftercare counseling. “If you don’t have to follow some of the strictures of Ofcom, then you probably wouldn’t choose to purely from a resource perspective,” Argent says. “I think sometimes people are asked to make very high-end complex programs on very small budgets.”
One veteran director, who made scores of documentaries for the BBC before going freelance, offers an example of where the framework might be useful. Her first series for a US streamer was a very negative experience; speaking on condition of anonymity, she says she could not trust the care with which the rushes of the interviews of traumatized contributors would be handled. At the BBC in her years making documentaries, the first question you ask is, she says, “‘Does this person have a diagnosis or psychiatric disorder? If so, what are the implications of that for telling this story?’ But clearly, streamers don’t ask that question. They’re just like, ‘How can we tell the best story?’”
In the US, “All the people that I was interviewing were suffering from quite high levels of trauma, vomiting up incredibly intimate details of trauma and abuse, and in some cases sexual abuse and incest, that they had suffered.” The situation was concerning enough for her to contact her exec back in London. “I said, ‘I am very, very worried that when this gets into the cutting room, there won’t be any editorial policy to protect these people, and there will just be the commercial imperative on the part of the streamer to make the most salacious program possible, and that I will have no say in that.’” The executive replied, “‘There is no safety net. The only thing this streamer will care about is whether we are risking a lawsuit. So, they will be worried if we defame somebody or libel someone in any way. In terms of protecting the vulnerability of these people, they will have no concern.’”
She ended up curbing interviewees just at the moment when they got too personal, something counterintuitive to most interviewers. “When someone started really getting into the nitty gritty of really gruesome stuff, I said ‘I think we should take a bathroom break. Go and dry your eyes, redo your eyeliner. Let’s all have a cup of tea and reconvene in 15 minutes.’” The British camera crew were surprised by her approach. “If we’d been making that for the BBC, those moments would have felt like TV gold. But the crew would have known that you capture them, then you make that decision in a room full of people—editorial policy look at it, lawyers, channel executives—and weigh it up. Or, as a director, you decide in the edit with your editor that it’s not going to make the cut, and then no one else even knows it’s there. In a normal situation, you would gather all the material without having to worry how it might be used, but I realized that those conditions simply didn’t apply. I had to enforce my own internal editorial policy guidelines on set.”
The unequal playing field between broadcasters and streamers might be coming to an end. Under a new UK Media Bill recently passed by the outgoing UK parliament, VOD services would also need to come under Ofcom regulation. In the next few months Ofcom will consult with the public and draft guidelines for these regulations.
For veteran documentary editor Sam Santana, there is a noticeable difference between making programs for Ofcom-regulated broadcasters vs streamers. “With a streamer I would say that I don’t ever seem to have the same sort of pressures that I would have with a broadcaster. When I’ve done documentaries with Channel 4 and BBC, [Ofcom rules] are always in the back of our mind. Personally, it doesn’t make a difference because [the ethics are] ingrained. However, it does seem that I’ve never had to show a documentary to a streaming lawyer. If you’re making a documentary for BBC on Channel 4, there’ll always be a lawyer who watches the cut—and you will also not only have a BBC lawyer, but a BBC compliance team to watch it. The two come hand in hand. I don’t ever remember having to show something to say a Prime, Netflix or Apple lawyer.”
For Santana, bringing the streamers under Ofcom practice would be welcome. “I think the knowledge that Ofcom could come and help regulate would make us all a bit more cautious about what we can and cannot say on a streamer product, which, in my opinion, is a good thing.” “Occasionally streamers have to bow to a bit of pressure but there’s no regulatory hook that demands answers to questions,” Argent says. “Ofcom could have the power to ask for your unedited footage, which can be quite telling at times.”
Both Argent and Santana maintain that the Ofcom framework rather counterintuitively allows for more risk taking. “I always quite like the Ofcom structure most of the time, because if you can tick off a lot of the things, you get that confidence for really risky things,” says Argent. “I’ve advised on undercover filming really tricky people, on factual dramas involving crime profile matters. You end up feeling quite safe and strapped in, because you’ve got that structure you can answer all the questions from a legal, regulatory perspective and reputation perspective.”
Having to undergo an Ofcom investigation is a lengthy and resource heavy process that program makers are keen to avoid. It’s also not a way for potential complainants such as Harvey, who is suing in US courts for tens of millions of dollars, to get rich. “There isn’t a way to make millions—it’s not like the legal process in that respect,” says Argent. “It is a more of a transparent have-my-day-with-the-regulator judgment.” But the outcome of an Ofcom decision might be used to then pursue a more lucrative legal judgment. According to Argent, “If the regulator deems that your privacy has been infringed it can be used as ‘Look, even the regulator said that this is quite good grounds. Now I’m going to go and sue.’”
