Legal eyes

Hats, chickens, genitals and profanity – these are the things that occupy the mind of a Channel 4 lawyer. Fiona Callister reports on the ten-week legal damage limitation exercise that is Big Brother

It is only fair to warn you that if you continue to read this article – and it is highly recommended that you do – you will end up with the thudding signature tune of Big Brother throbbing through your head for the rest of the day. For those of you who do not know what the tune goes like, you really need to catch up with modern culture, otherwise dinner parties in a few weeks are going to be unbearable. Social invitations are currently flooding in for two Channel 4 lawyers, Nigel Abbas, a lawyer in the Channel 4 legal department, and Neil Pepin, deputy head of the team, just as they did last summer. The reason – apart from both of them being utterly charming individuals – is that they know the truth behind the phenomenon that has provided dozens of tabloid headlines and encourages at least a million people a week to ring a premium rate telephone number to take part in the game. They are the lawyers charged with ensuring that Big Brother stays on the right side of the law. And that involves keeping an eye on nudity, hats, family secrets and chickens.

Just in case any of you have been working on a huge deal for the past year or so and have not had time to watch television or talk to people, here is a basic guide to Big Brother: 10 complete strangers are placed in a house together and filmed 24 hours a day; once a week, following nominations from the housemates, the premium rate phoneline is used to vote people out of the house. Bizarrely enough, it makes highly addictive television.

While the first series last year was broadcasted on Channel 4 and on the web, this year the workload of Abbas, Pepin and the rest of the six-strong legal team at Channel 4 has been increased by the decision to screen live footage from the Big Brother house 21 hours a day on Channel 4’s digital sister channel E4. In the first series, apart from the Friday night coverage when one of the housemates was evicted, the Big Brother programmes were edited highlights from the previous day. This is still the case for the Channel 4 coverage of this series.

Now both the Friday night programme and E4 are ‘live’, although subject to a 10-minute delay. This delay allows the editorial team to edit out both excessive swearing and those things which appear dubious in a legal sense – and this is where Pepin and Abbas come in.

Both lawyers have been involved with Big Brother since the beginning. The first series arrived on our television screens in August last year, but discussions as to how the legal side was to be handled began four months earlier. All six of the team take it in turns to be on call 24 hours a day to take an average of 10-15 queries a day from the production team.

Last year’s selection of housemates was easier than this year’s lot, providing it with a gentle start. Pepin explains: “I’d say this year’s housemates are more troublesome [from a legal and regulatory point of view]. To give you some idea, E4 decided that they should make a note of the number of edits they have to do in a 21-hour period. They did 1,300 edits in that period and it continued at that level on an ongoing basis.”

Most of the edits are for bad language, and while this year’s housemates are apparently more foulmouthed than last year’s, part of the difficulty, says Abbas, is that there has been a spate of birthdays in the series this year causing there to be more boozing, and this is when the trouble starts.

Following last year’s nude body painting episode, for example, this year’s nudity problem came following Brian’s birthday party, when each housemate appeared to drink his or her own bodyweight in alcohol. When Brian was getting out of the Jacuzzi, one of the housemates pulled his swimming trunks off. Happening late at night, this did not pose too much of a problem for the live stream or the Channel 4 post-watershed programme, but the tea time show had to be edited slightly to avoid revealing too much of Brian’s privates. The Channel 4 edited highlights programme is repeated daily at the pre-watershed time of 5pm.

The demon drink itself causes problems for the pre-watershed shows, as excessive drinking cannot be seen to be condoned following the Independent Television Commission (ITC) guidelines.

“It’s not an absolute prohibition,” explains Pepin. “It’s more about whether you show anything that might encourage drinking. So it’s not that you can’t show that they were drinking, it’s more a question of how it comes across.”
“So we show the hangovers as well,” adds Abbas.

While last year’s group did not discuss the outside world much, preferring to talk about themselves, this year’s have been much more open about life outside. “There are fairness and privacy issues when people are talking about people they know and their family and saying things that those people wouldn’t necessarily want broadcast. We’ve had some close calls on that one,” says Pepin.

Privacy became a particular issue during Celebrity Big Brother, which was put on in aid of Comic Relief earlier this year. Vanessa Feltz was one of the housemates, and she started showing signs of strain after being nominated for eviction, which mostly involved scrawling long words such as ‘Incarceration’ on the Big Brother tabletop.

Pepin explains: “Although every housemate signs a form saying we can film them, there could be circumstances when they’re in such mental turmoil that you could conceivably get to the point where you feel that showing what they’re going through would be a breach of their privacy.”

Abbas adds: “Something like [the Feltz incident] is so high profile that the editorial team would want a lawyer there just to make absolutely sure that there wasn’t anything that can come back against the company.”

While all housemates have to sign a release form before entering the house containing clauses that they promise not to make defamatory statements, the editorial team did not want to make too many restrictions on their freedom of speech for fear of ending up with 10 weeks of stilted conversation. No explanations were given to the housemates as to what would constitute defamation, a fact that would probably send a chill down many lawyers’ backs given the general level of intelligence of the housemates. Those who have been watching will confirm that Helen is unlikely to be a future George Carman.

Instead, the Channel 4 lawyers have to hope that the 120-strong editorial team working on the E4 stream around the clock are alert enough to predict any problems in time. Most are dealt with by turning down the sound.

“Language is quite a common problem in terms of tea time programmes,” says Pepin. “There are certain words that can’t be broadcast during family viewing. Before the series started, we had to decide how many low level swearwords might be acceptable in a half-hour programme.”

Unfortunately, Pepin is not letting on as to how many naughty words can be used, saying that it is down to common sense on the part of the editorial team.

Hats have also caused slight headaches as this year’s housemates include a man named Bubble who has a penchant for hats. Under ITC ‘undue prominence’ guidelines, brand names cannot be featured in programmes.

So the housemates are banned from bringing in clothing with large brand names to avoid the problem of having to film around the logos. Many of Bubble’s chosen hats were heavily branded, so the team reached a compromise that he could take hats with smaller logos, and as long as he kept changing them, no one brand would receive undue prominence.

Pepin says the production team showed quick thinking when it came to Bubble’s birthday. “They wanted to give him a Chelsea football shirt because he’s a big fan,” he says. “But the current one has a very prominent sponsorship name on, so instead the production company very astutely gave him a ’70s-style one without the sponsor’s name across the chest.”

Editorial justification is a defence to brand name exposure, so when the producers decided to offer Helen a Gucci handbag and shoes for her birthday, the brand use was justified because she had previously said that her ambition in life was to own such accessories.

Similarly, discussion of Josh’s very expensive designer trousers was allowed because it was felt that including that conversation enabled viewers to build up a picture of the newcomer.

Josh’s arrival caused additional undue prominence problems because he owns an estate agency business in Soho. Abbas explains: “When he first came in he was talking about it quite a lot, so the E4 monitors are looking out for any mention now; if he was getting into a big discussion about it then the sound would be dropped, so we didn’t get complaints from rival businesses of undue prominence.”

On a similar theme, early on in this series Helen and Narinder had a spat about whether the latter had called the hairdressers where the former worked “crappy”. “The legal team was called for advice on that one,” says Abbas. “I think that E4 cut bits from that conversation and when it was later put back into the VT packages there were a couple of small things taken out, just to make sure there was nothing defamatory.”

This year’s series started a couple of weeks before the general election, which brought yet another load of regulations into the picture. Under the ITC code, programmes that are broadcast during the campaign period had to be impartial.

“There was a concern about whether they’d get into debates on election issues,” says Abbas. Such a worry was unfounded, as the housemates were more concerned about getting a tan than who was getting into Number 10.

Although the internet is not covered by the legislation and the Channel 4 programme could obviously be edited, E4 again posed the problem. “We felt that a few one-off remarks about politicians wouldn’t be a problem,” says Pepin. “But Channel 4 wanted to ask the housemates on a voluntary basis who they voted for [by postal vote] prior to the end of the voting period. That was recorded in the diary room, which isn’t part of the E4 broadcast. The difficulty was that they’d come out of the diary room and start talking about it openly in the areas where we have a live stream. We then had to alert E4 and their team of checkers that if the conversation had turned to electoral issues, that was another reason to turn the sound down.”

The election provided one problem that Abbas and Pepin could not find a way around. The producers wanted to send people on the politician’s campaign trail to ask them who they wanted evicted from Big Brother. But ITC rules mean that politicians cannot appear on programmes throughout the campaign period unless their appearance has been booked previously.

For this year’s series the release forms signed by the housemates contained two new clauses: one was to state that they had no connections with Channel 4 and the other was not to harm the chickens.

The first was put in following rumours last year that Nasty Nick had had an affair with a Channel 4 lawyer. Pepin says that while this was amusing at the time and most definitely not true, the team decided this year to include the clause – just in case.

The other one was put in following idle conversation in the last series when food was running short over whether they would be allowed to kill the chickens that were provided for eggs. Big Brother ruled no, but the charity People for the Ethical Treatment of Animals (Peta) demanded reassurances that Marjorie the Chicken would not be going in the oven.

This year the chickens can cluck happily to themselves, safe in the knowledge that Pepin and Abbas have helped to save their feathers.