You turn up at your local hospital for your antenatal appointment or one of your routine scans and there’s a notice on the door saying filming is taking place. Are you within your rights to stop the filming you as you talk to your midwife or have your scan? And, if you didn’t see the notice and hadn’t realised there was filming, can you stop the broadcasting of the footage?
With the growing interest of TV audiences in the issues around pregnancy and childbirth – witness the huge popularity of programmes such as One Born Every Minute – more and more TV crews are turning up at antenatal and maternity units, looking for ‘real-life’ stories that their viewers will want to watch.
And that’s fine, of course – as long as we all know we’re being filmed, and we’re happy about it. But, as happened recently, at The Rosie Maternity Hospital in Cambridge, it can sometimes happen that we don’t know.
True Visions Productions were recently (April 2019) fined £120,000 for filming at The Rosie Hospital’s walk-in clinic for mums-to-be who have concerns about their pregnancy without adequately informing the mums-to-be that they were being filmed by CCTV-style cameras placed in the examination rooms.
What made things worse was, it’s thought that footage, recorded for a Channel 4 documentary on stillbirths, could have captured extremely sensitive and upsetting moments, such as women being told they’d miscarried. (Channel 4 says none of the unlawfully acquired footage was included when the documentary was broadcast).
So, could a film crew just start filming me in hospital?
No, not without letting you know about it. But how thoroughly they need to let you know – and check you’re happy with it – would depend on what the situation was.
If the film crew had got proper permission from the hospital authorities and were filming people at some distance or in the background, as part of a programme about hospitals in general, for example, “it should be enough to inform/warn people and give them the opportunity to opt out,” says expert lawyer Alexandra Whiston-Dew, a managing associate at Mishcon de Reya.
“So,” says Alexandra, “it can be enough to stick up a notice or give out ‘to whom it may concern’ letters.”
“If, on the other hand, the proposed filming is of specific individuals, in personal or intimate circumstances, then film makers should obtain the informed, documented consent of each of the participants.”
This is where the film crew at The Rosie Hospital went wrong. They’d got permission from Cambridge University Hospitals NHS Foundation Trust to film, put “limited notices” up in the waiting area and near where the cameras were, and had left letters about the filming on tables. But the mums-to-be attending the clinic weren’t specifically asked for permission for their walk-in appointment to be recorded.
So, I should be asked for my permission to film me specifically?
Yes. You should be given a consent form to sign – or not, if you don’t want to be filmed – that gives your express permission to be filmed and for the footage to be broadcast.
What can I do if I realise I’ve been filmed but don’t want to the footage to be used?
If you feel that you’ve been filmed without permission, you have the right to notify the production company, particularly if you feature prominently.
“The strength of your complaint.” says Alexandra, “will depend on the circumstances and nature of the filming. Generally speaking, if you believe that broadcasting the footage would breach your privacy and is unjustified, you should contact the production company and make clear that they should have sought your consent, and that your consent is in any event withheld.
“Try to be as specific as possible about why the footage is private and what the potential impact of broadcasting it, including the effect on your family. If you choose to instruct a lawyer to help you complain, they can tell you exactly what rights you have under the circumstances and how to protect them.”
What if I give permission for filming but then change my mind?
“You should register the withdrawal of your consent as soon as possible,” says Alexandra, “and seek confirmation that the footage will not be used.
“The courts will look at consent (and the absence of consent) when deciding whether a person had a reasonable expectation of privacy, which includes consent that was later withdrawn, before broadcast.”