The Fonejacker Exemption

The television show Fonejacker will doubtless turn its star, Kayvan Novak, into an international comedy phenomenon like Sacha Baron Cohen. But on the surface, it appears that its basic premise – recording prank calls made to unsuspecting members of the public – breaks a host of broadcasting and privacy rules. Whilst being very funny at times, and hence popular, Fonejacker has also generated its fair share of complaints to Ofcom, the UK regulator. None of these complaints have so far been upheld. How does Fonejacker comply with the privacy regulations that prevent the secret recording of telephone conversations? Dig a little deeper into the regulations, and the explanation is easy to find: comedy broadcasts are simply exempt from those requirements. Here is what the relevant clause of the Ofcom Broadcasting Code says:

8.15 Surreptitious filming or recording, doorstepping or recorded ‘wind-up’ calls to obtain material for entertainment purposes may be warranted if it is intrinsic to the entertainment and does not amount to a significant infringement of privacy such as to cause significant annoyance, distress or embarrassment. The resulting material should not be broadcast without the consent of those involved. However if the individual and/or organisation is not identifiable in the programme then consent for broadcast will not be required.

That means Fonejacker has to skirt a fine line. For example, reeling off sexual double entendres at an unsuspecting old lady may seem pretty funny to some people, but is wrong if it causes the victim distress. Now we all know that what upsets some people will be shrugged off as harmless fun by others, so that seems like a pretty vague rule. Fonejacker can also avoid the need to ask for consent if the victim cannot be identified. Which is another vague rule: who can say for certain whether anybody listening will recognize the voice of the victim?

The regulator obviously gave this rule some thought. The minutes of their content board noted “a long standing broadcasting tradition of set ups, wind ups and other forms of surreptitious filming and recording for entertainment purposes which relied on this technique”. So the argument was that if secret recordings for entertainment were acceptable in the past, they must be acceptable in the future. It must be hard work being a regulator ;) If Fonejacker continues to grow in popularity, there will doubtless be a craze of copy-cat shows and wannabe individuals uploading their efforts straight to YouTube. Some of those are bound to step over on to the wrong side of the regulator’s vaguely-defined line. Dealing with that mess will really mean some hard work for the regulator. So if you want to have a laugh, call the regulator and ask them some stupid questions about what they do and how they justify their pay packets. Just be sure to tape the conversation and share it with the rest of us over the internet. Then we can all join in the fun – at their expense ;) Trust me, there has been plenty of times that I have laughed at what the regulator comes out with (usually it is a case of laugh or cry, and I prefer to laugh). It seems to me that I should secretly record any future conversations with them. There is always entertainment value in the nonsense the regulator spouts, and if I recorded it, I could share it with all of you. I wonder if they would see the funny side of that…

Eric Priezkalns
Eric Priezkalns
Eric is the Editor of Commsrisk. Look here for more about the history of Commsrisk and the role played by Eric.

Eric is also the Chief Executive of the Risk & Assurance Group (RAG), a global association of professionals working in risk management and business assurance for communications providers.

Previously Eric was Director of Risk Management for Qatar Telecom and he has worked with Cable & Wireless, T‑Mobile, Sky, Worldcom and other telcos. He was lead author of Revenue Assurance: Expert Opinions for Communications Providers, published by CRC Press. He is a qualified chartered accountant, with degrees in information systems, and in mathematics and philosophy.