Section 2. Journalistic Accountability
Documentary filmmakers may see themselves as journalists, and may have previous work experience or training in journalism. Equally a documentary filmmaker may regard themselves as fulfilling a totally different role and it's true that docs are often made with different goals in mind than traditional journalism. But regardless of whether you regard your work as journalist or not, if your film puts forward facts that are inaccurate, either because they didn't seem important to you or were not properly checked, that can have repercussions for you, the film and those involved with it.
In contrast to journalists, documentary filmmakers sometimes take advocacy positions. Nonetheless, filmmakers still have the same ethical and legal obligation to be truthful that journalists have. Presentation of inaccurate statements about subjects expose filmmakers to the risk of being sued for defamation: the unmerited undermining of an individual or organisation's reputation by making a false written or oral statement about them to a third party. Also bear in mind that laws vary according to the jurisdiction (see the resources at the end of this section for more information).
Ultimately, due diligence in research, fact-checking, good record keeping and acknowledgement of other's perspectives are all good journalistic practices that are good documentary filmmaking practices too and may ultimately help defend your case if your integrity as a filmmaker is ever questioned.
2.1 Journalistic Guidelines
This is a fascinating area of debate. Whilst documentaries perform a different function - and are often made in a radically different way and ultimately taking a different form from TV news or written journalism - it is important for filmmakers to know how traditional journalism is held accountable before deciding whether these frameworks do or do not apply to their work - and what the consequences of not adhering to them might be.
Fact checking is a vital part of the communication of any information. As the filmmaker, the responsibility to yourself, your team, your contributors and your funders is to ensure the information you're giving is correct and verified. Embracing a point of view or taking an advocacy stance without giving weight to both sides of a story is anathema to traditional journalism.
In the US, a perceived lack of balance can complicate a legal defense such as in the case of the U.S. feature documentary Crude where Chevron applied to subpoena 600 hours of the film's raw footage. The judge dismissed the filmmaker's position that invoked journalist privilege ("a reporter's protection under constitutional or statutory law, from being compelled to testify about confidential information or sources"). A spokesman for Chevron commenting that "somewhere along the line, Joe Berlinger went from being an objective observer to an advocate".
The Ethical Journalism Network puts forward these 5 core principles of journalism which are worth considering how they might apply - or not- to you as a filmmaker:
- Truth and Accuracy
- Fairness and Impartiality
We encourage you to explore the relevant references and journalistic guidelines on the resource page at the end of this section that reflect on the nature of journalism.
2.2 Journalistic Partnerships
Many filmmakers are exploring working in partnership with either individual journalists or with journalism institutions over their work. This can bring a number of advantages. Publications with digital platforms could provide budgets, resources, and potential partnerships (for example the New York Times, the Guardian, Field of Vision, etc). They can help with fact-checking and may partner on investigations. The Center for Investigative Reporting is partnering with more and more independent filmmakers, coming in as a partner to work already being made, but not as a publisher. They, too, have the media lawyers filmmakers may need already on tap.
Over the past few years, more and more traditional newspapers or news sites, as well as non-profit journalism outfits have taken an interest in independent documentary. It's a great time to pursue new partnerships.
There can also be a value in working with an individual journalist whose area of expertise overlaps with the film. Their role does not need to be on-camera but instead they can be paid a fee as a consultant or, if the relationship develops, come on board as an executive producer. As EP's share the legal risk of the film, that is another reason for them to help you make sure you have nailed the story fairly and accurately
Remember also that partnering with an organisation may require you to adhere to their legal and compliance frameworks - which may, or may not, be desirable.
Suggested Team Discussion Points:
These questions have been designed to provoke team conversation about the risks your production may face. These questions are not exhaustive and it is understood that each project has its own bespoke issues that will merit discussion.
|Do you consider yourselves journalists as well as filmmakers? To what extent is your film a form of journalism - whether wholly or partly?|
|Do you understand how your project might be perceived in court and what legal vulnerabilities it may have?|
|Would your project benefit from a journalist to assist with research helping to strengthen the journalistic content of your film project?|
|Would you be interested in a partnership with journalism organisations such as a newspaper or non-profit investigative organisation to provide strengthened journalistic standards to your film?|
2.3 Journalistic Protections
This Guide, the protocol and its checklists should be useful to all filmmakers everywhere, but this first iteration has been developed with American and British filmmakers as the primary users, with their input. As we learn more and consult more widely, we will be able to adapt it to be more useful for our colleagues in other countries.
The notes in this first iteration below concern only the US and UK to date but please find a list of resources at the end of this section that will be helpful for those in other countries - and remember that journalistic protections vary from country to country, even for E.U. members. See the resources at the end of this section to identify specific legislation relating to journalists in the country you are filming in.
It is worth noting that if you will be filming at a public event or a private event that is open to the press then press credentials may be beneficial. Contact your national journalism organisation to register for a badge and understand what specific protections it may accord.
In the US journalists have considerable constitutional protections. The good news is that to ensure that journalists remain protected, many lawyers are working to uphold your First Amendment rights (Congress shall make no law prohibiting the free exercise thereof or abridging the freedom of speech, or of the press). Nonetheless, there are still frequently instances in the US where journalists are arrested, impeded in their work, surveilled or pressured to reveal sources. Most worrisome is that as a documentary filmmaker, your legal rights as a journalist may be questioned or denied - as illustrated in the case of 'Crude' .
Whilst journalists in the UK have legal protections, they also have to contend with notoriously draconian libel laws - that have caused the UK to become known as the number one 'libel tourism' destination. This refers to the practice of pursuing a case in England and Wales in preference to other jurisdictions, such as the United States, which provide more extensive defenses for those accused of making defamatory statements. Whilst the most notorious examples of 'libel tourism' have involved print journalists, it does not exclude documentary filmmakers.
In addition, UK Parliament has recently adopted the most extreme surveillance legislation in UK history, the 2016 Investigatory Powers Act (also known at the 'Snoopers Charter') which dramatically reduces protection for whistleblowers, journalists, and their sources, potentially posing a serious threat to investigative journalism.
In 2017, the Law Commission proposed a new so-called 'Espionage Act' which would make it easier to classify journalists as 'spies' for obtaining leaked information, along with the whistleblowers who provide it to them.
It's worth noting that wherever you are in the world, if you are in possession of leaked documents of any sort, be aware of the legal implications in that particular jurisdiction; if the owner-organisation or government found out, could they injunct the film and/or could you be arrested for breaking the law?
Where There Is No Rule Of Law
If and when you are filming in a country or state when there is weak rule of law, it is crucial to ensure you are even more aware of the risks that you and your team might face and how to mitigate against them. Please also take time to read through the Committee to Protect Journalists Journalists Security Guide as an additional resource.
Suggested Team Discussion Point
|Do you know your rights, both as a citizen and journalist, in the countries you will be operating in?|
2.4 Undercover Filming
Undercover filming has specific risks and responsibilities attached to it. In general, covert recording of a conversation or a situation is considered an illegal invasion of privacy and its unlawful use can lead to criminal prosecution. When used in a journalistic context, it needs to adhere to local laws whilst editorially justified to be in the public interest it serves (i.e. it should not be something that is simply of interest) and deemed to be fair. Working with a lawyer to ensure the undercover filming has been set up in a legal way will help to mitigate against unnecessary legal risk.
Regardless, it can be very stressful and in such circumstances, mistakes are more likely. Before undertaking this type of filming, think carefully about the risks that your team or your subjects are undertaking, what can go wrong and what the consequences could be. You will need a clear action plan for every eventuality.
It's also important to take care that you have not filmed yourself speaking in a way that could be used against you if there is a legal case brought against the film. In this unfortunate eventuality, all your rushes would be discoverable, as well as notebooks, proposals, recce tapes and sizzle reels.
Please review the checklist at the end of this section and ensure an appropriate risk assessment form is filled out for each instance where undercover is deployed (such as the one accompanying this document).
It's also worth noting, that if you intend to incorporate any undercover filming provided by an external source, it needs to be verified and justified, using the same filters as you would apply for your own undercover filming.
See also guidance on page 30, below.
Suggested Team Discussion Points
These questions have been designed to provoke team conversation about risks your production may face. These questions are not exclusive and it is understood that each project has its own bespoke issues that will merit discussion.
|Are you intending to do undercover filming or audio recording? If so, have you consulted with a lawyer? Have you got a clear action plan for every eventuality agreed by key team members?|
|Are you aware of the different undercover technology available and have you picked the most suitable equipment for the situation you want to cover?|
|Are you aware of the laws around undercover filming in different US states and different countries you may be filming in?|
2.5 Journalism Resources
Libel, Ethics And Fact Checking Resources
Journalistic Protection Resources
Media Legal Defence Initiative (international)