Under The Spotlight: Undercover Filming

03 October 2018

If a picture says a thousand words, a video says infinitely more. Undercover filming adds significant weight to allegations and articles, particularly as only a very small proportion of what is recorded will ultimately be used and there may be significantly more raw footage supporting the target’s position or providing proper context.

While care should be taken not to say or do anything which could reflect badly if it was recorded, it is impossible to completely prevent this, especially as things can be taken out of context or selectively edited. Should you find yourself the target of undercover filming or recording, it is vital that you do all you can to protect your reputation and privacy prior to the footage being published. This includes legally challenging the publisher’s decision to record covertly and the accuracy of the allegations the footage is intended to support, as the resulting harm is often instantaneous and any later vindication will not undo that.

The recent IPSO ruling in complaints brought by Sam Allardyce against the Telegraph’s 2016 ‘Football for Sale’ articles is a case in point and has raised serious questions as to when complaints about secret recording will be upheld.

The law, and the various codes governing print media and broadcasters, set out when clandestine recording is permitted. For example:

  • Clause 10 of the IPSO Editors’ Code says: “The press must not seek to obtain or publish material acquired by using hidden cameras or clandestine listening devices; or by intercepting private or mobile telephone calls, messages or emails; or by the unauthorised removal of documents or photographs; or by accessing digitally-held information without consent” and “Engaging in misrepresentation or subterfuge, including by agents or intermediaries, can generally be justified only in the public interest and then only when the material cannot be obtained by other means”.
  • BBC Guidelines say:  “Secret recording must be justified by a clear public interest. It is a valuable tool for the BBC because it enables the capture of evidence or behaviour that our audiences would not otherwise see or hear. However, secret recording should normally be a method of last resort. The intrusion in the gathering and transmission of secret recording must be proportionate to the public interest it serves. Where there is a higher legitimate expectation of privacy, the BBC requires a higher public interest test to be achieved before recording secretly”.

Approving the publication of undercover footage is a two-stage process. Both the decision to record and the decision to publish need to be justified. Generally, recording can only be justified where there is prior strong evidence that the secret recording will prove wrongdoing and that there is no other way of obtaining the proof.  

Complaints are rarely made about secret recording by itself. They often accompany defamation or accuracy complaints and, if those complaints are upheld, the fact that the secret recording has taken place and been published or broadcast is often a factor which increases the damages.

Undercover footage was a key aspect of Mr Allardyce’s complaint, alongside accuracy. He argued there was no justification for the level of subterfuge employed by the Telegraph, nothing in their articles suggesting that it had been alerted to any specific wrongdoing that would justify an undercover investigation and that when the investigation found no wrongdoing, the undercover footage was published anyway with serious false allegations based on it.

While IPSO ruled in Mr Allardyce’s favour in respect of three inaccuracies, it also ruled that the undercover footage did not breach the IPSO Code. You would think that, in order to come to this conclusion, the Telegraph would have had to have shown IPSO some evidence that supported its decision to secretly record, but it did not have to. It was enough for IPSO simply to be told that the Telegraph “considered” its source to be “credible and reliable”, that other sources had repeated the allegations and for the Telegraph only to provide evidence that senior editorial staff were involved in the decision-making.

While both sides subsequently claimed the IPSO ruling as a win for them, it threw up several interesting points concerning covert footage, including:  

  1. The question whether a newspaper has a reasonable belief that subterfuge would uncover material in the public interest does not appear to be one that newspapers will struggle to convince IPSO to rule in their favour on. On the basis of this ruling, it appears as though a newspaper only needs to say that they have evidence.
  2. There is a significant inequality of arms when complaints about undercover footage are made. The person who was recorded will not have a copy of the recording or the transcripts. They will be at a disadvantage when challenging the undercover footage as they will be relying upon memory and recollection, whereas the media would have access to all the evidence, which might strengthen the individual’s complaint or undermine the media’s position. In Mr Allardyce’s case, it took IPSO around six months to obtain the transcripts of the Telegraph’s footage. His complaints may have been able to be resolved more quickly if the transcripts and raw footage were provided at the outset.
  3. The consequences of undercover footage being published, particularly where allegations it has been used to support are not proven, are never sufficiently remedied. Mr Allardyce swiftly lost his job as England manager as a result of the Telegraph’s articles, which were later found to have been inaccurate.

As most undercover filming is part of lengthy investigations, the impact of IPSO’s ruling on journalistic behaviour and future complaints will take some time to be seen. In the meantime, the media will feel more confident about their ability to justify undercover filming and those who may be targeted by it should be extra vigilant.

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About the Author

Ben Hobbs

Senior Associate

Ben specialises in reputation protection. His work covers defamation, privacy, harassment and intellectual property rights.

646 934 6219