Do networks owe reality TV participants a duty of care?

Yes.

Networks have been found to be the employers of reality TV participants, and therefore owe participants a duty of care during their “employment”. The Work Health and Safety Act 2011 (NSW) requires that networks, as employers, must ensure the health and safety of the participants while they are engaging in the shows. This includes an obligation to take reasonable care not to expose the participants to unnecessary risks and to prevent physical and/or mental injuries or harm.

The NSW Workers Compensation Commission (now the Personal Injury Commission) established that agreements and releases cannot exclude an employment relationship from arising between a network and a reality TV participant for the purposes of the Workers Compensation Act 1987 (NSW).

In the decision of Nicole Elizabeth Prince v Seven Network (Operations) Limited [2019] NSWWCC 313, the commission found that the parties had an employment relationship despite Channel Seven’s “non-negotiable” conditions and rules. They were subsequently held responsible for the psychological injuries that Ms Prince suffered.

Similarly, Green v Seven Network (Operations) Ltd [2021] NSWPIC 458 affirmed this duty of care. In this matter, a former contestant of My Kitchen Rules pursued compensation for psychological injuries due to vilification and bullying from producers and the network. In the end, the commission held that Green was entitled to compensation for the injuries sustained.

Does Frankensteining breach this duty of care?

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It depends.

Networks often require participants to enter into contracts ahead of filming, which permits the network to “alter, adapt, utilise and exploit the program in any way it sees fit”. This allows the networks to then “Frankenstein”, which will ultimately make their programs more entertaining.

Whether or not this edit is in a positive or negative light will depend on whether a network breaches its duty of care. If someone is edited as a villain and then subsequently gets bullied or harassed, then the duty of care may have been breached. Alternatively, if the edit is in a positive light and benefits the person in question, then a breach of duty of care would be hard to establish as no harm came to them.

What does this mean moving forward?

Considering the above, questions are being raised as to what this means for participants moving forward, and the UK framework serves as a promising example of how reality TV could be better regulated in Australia.

In the UK, within the span of three years, two former Love Island participants committed suicide, as well as one of the show’s former presenters. A parliamentary inquiry was set up to investigate in April 2021, which resulted in amendments to The Office of Communications (Ofcom) Broadcasting Code. Ofcom is the government-approved regulator and competition authority for the communication industry in the UK. They have acknowledged that “attitudes in society to welfare and wellbeing” have progressed, which meant the code needed amending to reflect this.

Section 7 of the code was amended to introduce two new practices to ensure that broadcasters take due care of people at risk of harm. Damian Collins, the MP who chaired the committee inquiry, stated that “it’s not a special duty of care. It’s bringing them [the broadcasters/networks] on par with other professionals”. The section recommends that a risk assessment be conducted prior to filming to identify any risks of significant harm. It continues by providing a list of reasons as to why a contributor may be “at risk of significant harm”, including the contributor not being familiar with being in the public eye, the filming of the program being in an artificial or constructed environment, and that the program is likely to attract media and social interest.

While this is certainly a step in the right direction, it is not yet a perfect solution to the issues that reality TV presents. Critics have raised questions as to this “one-size-fits-all” approach to regulating reality TV and other mediums such as radio. Additionally, Ofcom is a post-broadcast regulator and cannot interfere with the direction of creative content — it can only intervene once something has already aired.

Currently, the Australian framework does not specifically provide for reality TV and its participants. Instead, it vaguely sits within the category of commercial free-to-air TV, meaning it is governed by the Commercial Television Industry Code of Practice, together with regulations overseen by the Australian government and Australian Communications and Media Authority (ACMA).

Unfortunately, the adverse effects of reality TV participants serve as a reminder that these people are not actors playing out a character. They are the people we interact with on a daily basis who are presented to the public on a silver platter. The Frankensteining technique compels viewers to form opinions that are often distorted and evidently result in injury. Because of this, Australia should heavily consider affording participants stronger protections, much like the UK has.

Isabella Bagus, Morgan Graham, and Chantal Ryan are graduate lawyers at McCabes.