Lights, Camera, Crisis: The Corporate Affairs Implications of TV Dramatisation
By Damian Reece, Senior Counsel at Instinctif.
The success of Mr Bates vs The Post Office proves that sometimes drama is a far more effective way of telling a real-life story than the news media.
Paula Vennells, the ex-Post Office CEO, has shot to infamy because of actor Lia Williams’ portrayal of her for ITV, rather than because of the drip, drip news coverage of the subpostmaster scandal since 2009, when Computer Weekly’s Rebecca Thomson broke the story. There’s also an election looming and politicians see votes in siding with ordinary people for once.
But could your CEO be the next to star in a dramatisation of real life events? Doing a “Vennells” is now the lingua franca for reputation crisis and every CEO in the land rightly wants to know how they’re going to deal with a script writer rather than a news reporter.
The obvious first point is to always act with integrity. Don’t lie, nothing’s more important than the truth, and if your company has values then live them, don’t just talk about them. Do that and the chances are you’ll never do a Vennells. But the risk is there, and it’s a growing one. Dramatisation of news stories is increasingly popular. The Financial Times’ excellent short play People You May Know names several companies and organisations in a fiction about data abuse during COVID-19. Julia Roberts in Erin Brockovich and Simon Russell Beale in The Lehman Trilogy are just two other outstanding examples of where drama trumps news for telling true stories.
So how do you deal with a drama about you and your business and what are your rights?
We’ve asked Jo Sanders from Withers, and Thomas Rudkin from Farrer & Co, two leading media and reputation lawyers, for their advice:
If a company knows a drama is being planned how best can it prepare and approach this issue?
TR: A sensible and strategic communications strategy is likely to be the way to go. Legal advice can always supplement this both pre- and post-broadcast. However, making a complaint about a drama should be carefully considered; doing so could easily become a story in itself and the prospects of success are likely to be limited in most cases.
JS: Assemble all the facts. If the drama is part of a well-publicised issue then consider whether direct engagement with the producer is likely to be beneficial or not. If there is significant material in the public domain then there is no basis on which to ‘stop’ a drama, but it might be important to make sure that the producers have had access to a complete body of the evidence which they cannot ignore, so that a production is not based upon a partial selection.
This presupposes that the drama will be sticking mainly to events that are public knowledge. There are different and significant risks if portraying someone in their private life. This arises often in biopics (such as films about rock stars or actors) but there is no reason the same problems would not be encountered in fact-based drama. If the drama were to speculate about a CEO’s private reaction to public events, or how events might have affected their home life, or show them struggling to cope or facing medical issues, then that would create a very significant risk for the production. An individual in those circumstances could say they have a reasonable expectation of privacy and the drama had infringed that. It is why most dramas stick to public domain material or secure the consent of key figures.
Note that in Mr Bates vs The Post Office, the private reactions of Paula Vennell’s were not depicted. She was only depicted at work and in meetings that were documented as part of the legal process or other public record.
Can companies expect to be contacted by a drama production for comment or input?
JS: Not necessarily. If the person is already in the public eye, if they hold a prominent role or position, and if their involvement in events is well catalogued and facts already established then there is no compunction for a production to make contact.
There would be greater risk to a production if it was making a film not based on a body of evidence that had already established the facts. If the production wanted to make new allegations about a real person or company, then to do so without making any contact to check the facts would be very high risk. However, a production that did make contact in these circumstances would also have to accept that if it was shown contradictory evidence, it would have to drop the claim from its story.
An alternative for a production company might be to not include allegations against a real person and instead air critical allegations against a wholly fictionalised organisation or character that could not be equated or identified with a living individual or real company.
TR: It is very unlikely. We have advised clients on biopics and other drama productions, and they have never been contacted for comment in the way of a news story. They might be consulted depending on whether the production company wishes to collaborate.
If a company learns of a drama production being planned or produced, can they intervene and ask for details or a right to input into the script etc?
TR: There is no entitlement to a script/copy approval. One could approach the production company and ask for information about the show. That might create some pressure. If the show turned out to be inaccurate in some way, then the failure to engage could be criticised and relied upon in any complaint or communications strategy.
JS: Yes, however there is no right or entitlement to see material in advance. Ultimately the production company and broadcaster will take their own view on whether they think it would be helpful to share material but there might be circumstances where they would welcome input or co-operation.
Can a person or company expect the same rights (e.g. right of reply etc.) from a drama production as a news publisher?
JS: It doesn’t usually work in exactly the same way for a couple of reasons, although the applicable law is the same. It is most typical for dramas to draw heavily or even exclusively from factual sources that are already in the public domain, such as court transcripts or judgments, Select Committee hearings, or books or articles on the same subject. This might give some practical comfort that either the content is already available and not the subject of a complaint, or that the drama would only be depicting events that are not disputed or the facts have already been proved. If that’s the approach then there is less need to offer a right of reply if no allegations are being made that have not already been conclusively proved by some other means.
It may also be that the production company will, through the use of disclaimers, try to shift the impression that what it is saying is true by, for example, saying that the drama is inspired by real events but that facts have been changed. This is not, however, a failsafe and if ultimately a person is depicted in a way that means viewers believe the detail of that portrayal then that is the real test.
The BBC Editorial Guidelines (6.3.51 and 6.3.52) deal specifically with portrayal of real people in dramas. These say that generally people should be contacted in advance with a view to securing co-operation, although there’s less of a need to do so if they are in the public eye. The portrayal should be fair and must be based on a substantial and well-sourced body of evidence and also be in the public interest. Although this only applies to the BBC, responsible drama producers are likely to take a similar approach.
TR: In my experience it’s very rare (if ever) that the subject of a drama production would be given a right of reply. That does not mean they do not have the same rights more generally. But a right of reply is not in any case an absolute right (even in relation to news, although it is generally regarded as almost obligatory in that context). If, when viewed objectively, the production would be regarded as making factual (as opposed to fictional) allegations or revealing private/confidential information about the subject(s), then legal action is possible in principle. However, there will be questions about whether harm has genuinely been caused by a dramatic representation and a disclaimer will often be added (e.g. “this programme is based on real life events, but some scenes and characters have been imagined”) that provides additional protection, in that it makes clear that not everything in the show should be considered a true reflection of facts.
Once a drama is aired, do those portrayed have rights to insist inaccuracies are corrected?
TR: Because most shows do not purport to present a comprehensive/fully accurate history, that provides some protection to the production company/streaming service/broadcaster. The question will be whether a reasonable viewer would understand a particular scene to be a genuine statement of what happened in reality. The mere fact that a scene is inaccurate does not necessarily give rise to a basis for legal action, especially if the show is not purporting to be a complete telling of history. Minor inaccuracies do not give rise to a cause for legal action, but if a scene presents something which is harmful to the reputation of the individual/company and viewers can be shown to have treated it as a factual representation, there is in principle the basis for a complaint. I have not been involved in any cases where dramas have been themselves corrected, but the production company/streaming service could be persuaded to double down and issue a statement making clear that not everything is to be treated as factual.
JS: Yes, although that might be opposed by the broadcaster if it felt that the alleged inaccuracy would not have been understood to be real, or that the complainant was not the subject of the portrayal. And there is always a balance to be struck between a valid complaint and looking insensitive, self-absorbed, or humourless.
Can they take legal action?
JS: Yes. A key issue is likely to be the extent that a person or company has been identified by the programme (if they’re not named) and the meaning of what has been alleged about them (how it was understood by an ordinary viewer). A case was brought unsuccessfully in the US over the show ‘Billions’ which failed at the first hurdle because the complainant was not sufficiently closely identified as the fictional character. Some years ago, Channel 4 agreed to pay compensation to an individual who bore a striking (but entirely accidental) similarity to a character in Peter Kay’s Phoenix Nights.