The Guidance reflects broader government guidelines around safe working conditions, and will be updated as the lockdown eases further, government advice evolves and feedback is provided from being on set, but there are already many implications that those across the industry should consider. For now, the Guidance is split into two parts: (i) basic requirements for producers (in conjunction with their commissioning broadcaster), and (ii) key areas to consider when assessing risk on productions, with suggested controls to implement.
Under the Guidance, producers will need to assess COVID-19 risks and record how they are managing those risks in a dedicated risk assessment document. Commissioning broadcasters are also advised to engage with producers around how these risks are assessed and managed.
Consequently, broadcasters’ agreements with production companies will likely require updating to take account of these additional obligations, and pro forma chain-of-title documents may also need to be updated. Financing agreements may be updated as well, requiring assurances that appropriate assessments have been completed, or even requesting copies of those assessments and imposing consequences should producers fail to comply. A bank’s credit committee, for example, may be far more concerned with on-set risk assessments now than they would have been before the pandemic.
A basic requirement of the Guidance is the heightening of precautions for everyone on set, and the Guidance puts forward examples of how to do this. It is likely a number of these processes will involve the collection of personal data and therefore due consideration of the potential data privacy issues will be required. This will be particularly important if data regarding the health of an individual is collected and processed, as this a special category of personal data and processing of this kind of data is prohibited unless it falls under one of the listed exemptions.
The Guidance also puts forward a number of suggestions of to how to increase the safety of the production environment. This includes offering mental health and wellbeing support, making changes to existing scripts to take into account social distancing, reviewing set design to reduce the requirement for close working, using boom or fixed microphones, enhanced cleaning procedures, and bringing directors and other relevant roles in earlier on the planning and prep to establish what is required to deliver the production.
All of these measures are likely to increase production costs, and in turn budgets, which may prove difficult for broadcasters or distributors to contribute to upfront, at a time when they too are suffering losses. Already we are beginning to see an increase in broadcasters asking producers to rely on third party financing for programmes that they would traditionally cashflow themselves.
Although a useful start, the first iteration of the Guidance leaves many questions unanswered, and will need to be refined over time, not least to discuss consequences (if any) for non-compliance. In addition, the British Film Commission’s Codes of Practice for Film and High-End TV Drama Production are set to be published by the end of May. These codes will be complementary to the Guidance, but care will need to be taken to ensure that both sets of guidelines don’t contradict each other.
Separately to the issues in relation to production logistics, insurance also remains front of mind for many producers. When lockdown was initially imposed and the production industry was brought to a standstill, an immediate question was whether the insurance policies in place could cover the financial disruption caused by COVID-19. Insurance providers will doubtless update their policies covering disruption caused by COVID-19 (and pandemics in general), and compliance with the Guidance may become a crucial element of this. With it being unknown whether further outbreaks may occur and stricter lockdown measures enforced again, it will be imperative that production companies review insurance policies and discuss with brokers whether compliance with the Guidance may help to mitigate premium increases.
The full text of the Guidance can be found at https://www.itv.com.
Our Reed Smith Coronavirus team includes multidisciplinary lawyers from Asia, EME and the United States who stand ready to advise you on the issues above or others you may face related to COVID-19.
For more information on the legal and business implications of COVID-19, visit the Reed Smith Coronavirus (COVID-19) Resource Center or contact us at COVID-19@reedsmith.com.
Client Alert 2020-347
