Ideally, before exploiting the film, you should obtain direct consent from anybody appearing on camera. Where consent has not been obtained, filmmakers must decide if they can still include the image or whether they will need to take steps to obscure the individual’s face. For the purposes of this guide, filming is defined as any filming or photography that will be used for either private or commercial purposes, including theatrical distribution and broadcast,
By virtue of the European Convention on Human Rights and the Human Rights Act 1998 everybody has a right to a respect for their private and family life, their home and their correspondence. The Court has held that “wrongful disclosure of private information” and “misuse of private information” would breach an individual’s right to respect for their private life, and, in certain circumstances, publication of an image of the relevant individual would amount to the misuse of private information.
Practical tips for filming people
Where possible, obtain written consent from anyone shown on camera. If an individual is the focus of a particular shot or video then consent is essential. If you have captured an individual in the background of a shot and they are clearly identifiable, you will also need their consent. Remember that even if someone’s face is obscured, they could still be identifiable in other ways (i.e. through their car number plate).
Obtaining consent does not always entail a detailed rights agreement. It can be a short, simple statement confirming the individual has granted his/her consent for their image to appear in the production. Keep these in a safe place with all the key documents for the production.
If it is not possible to obtain specific consent, you should ensure that the area in which you are filming is clearly marked and sufficient warning notices are visible at the entry points. These should state in plain English and a legible font that filming is taken place and that by entering the area individuals are granting consent for their image to be used in a production. They should be informed that if they do not want to grant consent they should inform a member of the production team or avoid the area in question. If possible, take and keep photos of these signs in situ.
You should not include any images of people in situations which might be regarded as private (i.e. coming out of a fertility clinic) without their specific consent, ideally in writing. You should not show any images of children without the consent of the child and/or a parent.
You should not use images of an individual in a manner that could be defamatory and lower their reputation. Avoid all manipulation of an image that suggests a context or meaning that was not part of the original image and do not associate an individual with a negative or damaging story unless such association is accurate and truthful. Remember that what you might think of as harmless could be very damaging to a different person’s reputation
Where you cannot obtain consent, either specific or generic, you should carefully consider whether the individual in question is actually identifiable and whether they have an expectation of privacy. You should also contact your production’s Errors and Omissions Insurance provider, as they should be able to provide experienced guidance.
If in doubt, seek specialist advice or take sufficient steps to disguise the individual’s identity.