Media

Organisational risk climbs entertainment world's agenda

Entertainment businesses need to focus on their 'duty of care' for mental health

If 2019 was the year when media companies reflected on responsibilities for the mental health of participants on their TV shows and platform content, then 2020 was the year that duties for workers in the industry came back into sharp focus, as Covid-19 working practices highlighted the mental strains and stresses on the workforce and businesses were reminded once more to review organisational approaches and measures that can be taken to reduce risks to mental health. Unlike physical health and safety, until recently in many jurisdictions in Europe, mental health and wellbeing have not generally been treated as an "organisational risk" on the corporate resilience or compliance agenda. The legal duty may have existed for many years but, other than in the employment and personal injury sphere (where issues and claims for things such as stress are dealt with reactively and on an individual basis), mental health has tended to have been pushed into a corporate "wellbeing programme" and HR agenda rather than looked at as an organisational risk that should be proactively reviewed. In July 2019, UK media regulator Ofcom started looking at the issue of protecting participants in TV and radio programmes, running a consultation on the addition of sections of the Broadcasting Code to require "due care" to be taken for people participating in television and radio programmes, with a second consultation launched on 13 March 2020, recognising the growing concern in society about mental health and wellbeing and an increase in complaints to them. On 18 December 2020, it was confirmed that amendments will be made to the UK Broadcasting Code to ensure that the wellbeing both of participants in programmes and audiences viewing programmes is assessed and considered in the broadcasting of television. This includes greater requirements around communication and assessment of risks for participants, taking into account concepts of vulnerability, whether they are used to being in the public eye, constructed environments, editorial elements including conflict and confrontation, and the requirement for participants to reveal or discuss sensitive life changing or private aspects of life.

Coronavirus response

While the industry focuses on the wider question of vulnerability and harm for those taking part or viewing its programming, 2020 has also put the mental health and wellbeing of workers (employed or otherwise) back in the spotlight. Industry guidance documents produced for making TV productions and for film and high-end drama during the Covid-19 pandemic specifically remind businesses of the potential mental health impact of working on productions and recommended consideration of rest space and time, assessment of stress risks (using Health and Safety Executive (HSE) standards), increased awareness of fatigue, personal challenges for workers and tools to be used to support workers (including telephone support services). Amid an increasingly digital world where technology enables us to work anywhere and at any time, the risks associated with stress, burnout and other work-related mental health illness have become greater. As well as businesses wanting to avoid these risks, which have an impact on absences and productivity, the message from the regulators (in the UK, by Ofcom and HSE) is that they have gained interest in enforcing against poor practices. Across continental Europe, action has been taken to address workplace ill health, including burnout and new laws have been passed over the last decade or so in Spain (2012), France (2007) and Germany (2013) to try and tackle problems such as long working days in which people are glued to their screens. In France, serious enforcement action has been taken against both a company and its directors personally through the criminal courts in a case against France Telecom.

Mental health focus

For a media and entertainment business in 2021, there is an increasing business case for putting mental health (along with physical health and wellbeing) on the corporate risk and compliance agenda, looking not only at data gathered around absence and illness but also considering the future potential concerns based on working practices, culture and behaviours. We also anticipate an increasing focus from the investment community on positive approaches aligned with corporate responsible behaviour and the environmental, social, and corporate governance (ESG) agenda, which is particularly important for listed businesses and those seeking to grow.

Authors

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Mary Lawrence Partner, UK mary.lawrence@osborneclarke.com +44 117 917 3512

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Lucie Mongin-Archambeaud Partner, France lucie.mongin-archambeaud@osborneclarke.com +33 1 84 82 45 90

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Dr. Jörg Puppe Senior Associate, Germany joerg.puppe@osborneclarke.com +49 221 5108 4192

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Eva Otaegui Partner, Spain eva.otaegui@osborneclarke.com +34 93 419 18 18

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Berta Ferro Lawyer, Spain berta.ferro@osborneclarke.com +34 91 576 44 76