Documentary reality television's privacy problem

Abstract

Documentary reality television is hugely successful. The genre, which includes shows like Police Ten 7, Coastwatch and Border Patrol, consistently outperforms other television formats and fills free-to-air television schedules. In these shows ride-along film crews and body-worn cameras record agencies as they go about their tasks. Often these agencies are public authorities and their tasks are statutory functions. The purpose of this paper is to examine the genre’s privacy implications. It concludes that the genre is systemically unlawful. It is unlawful because it breaches the privacy rights of involuntary participants. The paper considers the privacy implications by examining the genre against the shared features of the publication tort and the Privacy Broadcasting Standard. Both of these consider that it is a breach of privacy to broadcast material subject to a reasonable expectation of privacy, where that broadcast is highly offensive unless there is an applicable defence. While the material broadcast represents the work of agencies, it also represents the personal stories of everyday people going about their lives. Often the moments captured are significant life events and intimate moments for those people. By agreeing to contribute to the genre, agencies agree to broadcast these life events without the active involvement of the participants. Research has also found that this is often occurring without informed consent. While the focus of this paper is on the private law implications of the genre, it identifies that some public authorities’ involvement in the genre may also be ultra vires. The paper finishes by considering why, if the genre is systemically unlawful, people are not suing. It considers that general issues with access to civil justice and the powers of the Broadcasting Standards Authority stand in the way of potential complainants. It finishes by considering some solutions that could improve the situation.