Factual drama – navigating the legal and regulatory risks
Making drama based on real-life stories is a popular content genre but can present many legal and regulatory hurdles.
At a recent event hosted by the Production Managers Association, lawyers Clare Hoban and Paul Schaefer from Abbas Media Law presented a session on how to navigate the potential minefield surrounding translating real events into a dramatic narrative.
We spoke to Clare about some key issues and pointers to remember when putting together a factual drama.
Can you outline some of the early checks and balances that should be carried out when preparing real-life subject matter for dramatisation?
In addition to the underlying contracts that need to be in place e.g. option agreements, writer agreements, actor agreements, music licences, filming permits etc, there are a number of early risk assessments that should be done.
Production should establish which characters are still alive, whether defamatory claims will be made and whether any private information will be disclosed. It’s essential to firmly establish from the outset what aspects of the storyline will be based on fact and where the portrayal will veer into pure fiction.
In the talk we looked at how legal issues such as defamation and privacy affect factual drama. We also looked in detail at how the Ofcom Broadcasting Code rules on harm and offence, fairness, the welfare of children and privacy can affect this genre of programme making.
Does the research have to be fact-checked as if preparing a documentary?
If a drama will present aspects of someone’s life as fact then it should be researched the same way you would a factual documentary.
How carefully do real-life witnesses’ accounts have to be checked?
Very carefully. If you use witness evidence their accounts should not be taken at face value, and speaking to witnesses is only one way of building the evidential picture. Always consider their motive, credibility and whether it is possible to independently corroborate their claims.
How do the decision-making criteria differ from when producing purely fictional drama?
Factual dramas cover a spectrum of content. There are dramas which are as accurate as a documentary through to dramas only very loosely inspired by real events. But in every factual drama the scriptwriter will have to use a degree of dramatic licence.
This doesn’t pose a problem for the neutral scenes that glue a story.
Issues arise when the script portrays the character doing or saying something negative if that portrayal is untrue. Portraying events inaccurately could be a breach of the Ofcom Code under the fairness rules and is also a defamation risk.
In addition, if you intend to depict any sensitive or private aspects of someone’s life, especially aspects not already in the public domain eg sex or health, this could give rise to privacy issues.
Can you describe some of the stipulations/considerations when portraying a real-life person in a drama?
If you intend to fictionalise a real person’s life then you still need to depict them in a way which is fair and accurate and not misleading. A disclaimer at the start and/or end of the programme to explain to the audience the extent to which the programme is accurate or largely based in fiction can be helpful.
But a disclaimer alone would never be enough to make an otherwise problematic drama legally safe.
Programme-makers also need to consider how the broadcast might impact the person whose experience will be depicted, or their family, and contact them where necessary.
Is it essential that the programme-makers consult Ofcom rules and guidelines before moving forward?
It’s really important to understand what your legal and regulatory (Ofcom) challenges might be from the outset. This is why we regularly advise production teams in these very early stages of production to ensure any storyline issues are addressed early and certainly well before casting and filming takes place.
Are there any other vital points to consider at varying stages of development and production? Could you outline some of the most important considerations for writers, researchers and producers?
1. Fact check – always identify what is fact and what is fiction (or what can’t be proved).
2. Consider whether a filmed scene creates a false impression eg sexual tension or aggression where none was written into the script.
3. Use a company to carry out negative name checks. This check will establish whether the names being used in a drama mirror the names of real people and businesses.
For example, if your drama has a fictional storyline about a pie factory in Leeds whose contaminated pies poison customers, your negative check will flag up whether there is a real factory with the same name.
4. Consider whether you need to change the identity of characters. For example, by altering various identifiers such as gender, nationality or appearance.
5. If you do intend to make allegations about identifiable people get advice on whether you should seek a right of reply.
6. Don’t assume someone older won’t complain, they may be even more sensitive about their legacy. Not only is it free to bring an Ofcom complaint, in many cases the law firm bringing the defamation claim will only take a fee if the claim is successful.
7. For broadcast check trails and cut downs don’t create a misleading impression of what is in the drama.
8. Make sure where appropriate those featured have been contacted.
Abbas Media law regularly provides bespoke advice and training to programme makers. Contact firstname.lastname@example.org for more information.
With many thanks to Clare Hoban of Abbas Media Law for her time and expertise in compiling this article.
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