SECTION 3.
LEGAL SECURITY

Just another reminder that at launch, this Handbook was focused on US and UK based filmmakers whose work will primarily be distributed in the US and Europe. This chapter has subsequently been updated with sections on India and Brazilian jurisdictions and a more global perspective to make it more relevant for for filmmakers everywhere. If you are from an international documentary organisation or have specific legal expertise in your jurisdiction and can help with future, more globally relevant editions, please get in touch: contribute@safeandsecure.film

We are seeing increasing numbers of legal challenges to independent documentary films, often to try to prevent distribution. It can be tough to withstand such legal challenges from much better funded adversaries, even when your film and its evidence is water-tight. But the less well prepared you are, and the later you leave it to uncover and address legal issues the more chance there is that you will find yourself up Shit Creek with fewer paddles than optimal.

Please see examples of legal cases against documentary filmmakers at the end of this section.

Key areas of law to get familiar with and how to find out about them

We encourage all film teams to think about their legal needs early on in a production and engage a lawyer to advise as the production unfolds, rather than waiting until deep in the edit to consult, at which point it may be too late or very expensive to get the film made legally safe and the Errors & Omissions (E&O) insurance in place. An E&O policy is usually a mandatory requirement for many funders and distributors who will require evidence of such a policy being in place before a film is published or otherwise exploited.

We encourage all film teams to think about their legal needs early on in a production and engage a lawyer to advise as the production unfolds, rather than waiting until deep in the edit to consult, at which point it may be too late or very expensive to get the film made legally safe and the Errors & Omissions (E&O) insurance in place. An E&O policy is usually a mandatory requirement for many funders and distributors who will require evidence of such a policy being in place before a film is published or otherwise exploited.

As a documentary filmmaker, you should be familiar with a few of the basic areas of law that you're likely to encounter during your work. Inform and educate yourself on these before you start any projects: it is so much better to start out prepared and knowing what you can expect. You don't need to be a legal expert, but it will be well worth your while to familiarise yourself with the law. For an international project, that means informing yourself of the law in the country or countries where you'll be working. There are specific sections on the jurisdictions of India and Brazil to bear in mind, plus more on specific areas of the law to get familiar with later in this chapter.

At a minimum, you should inform yourself of the laws that may be used against you - laws that can be used to stop you filming, or that can be used to take legal action against you to stop you from completing your project or sue you for damages. That includes defamation, privacy and data protection laws which may be used to try to stop you from making allegations or filming 'private' materials; public order legislation (for example, when you are covering protests); laws on the use of hidden cameras or recording devices; and, if you use anonymous sources, whether there are any laws that protect them. You should also be familiar with copyright laws and 'fair use' exemptions, both to protect your own rights and in case you're using materials that may belong to others.

You should also be aware that the law can be a tool for you. In a growing number of countries, there are 'freedom of information' or 'access to information' laws that give you the right to request information from governments and local authorities, subject to some exceptions. Stories that have been broken with the help of these laws include widely publicised scandals around expenses claimed by UK members of parliament, and reporting on the rollback of offshore drilling safety and environmental regulations under the US Trump administration. You should also be educated on your country's film classification and licensing laws, which can be a decisive factor in getting your film screened.

In addition to educating yourself on the law, we strongly recommend that early on you start to investigate insurance to cover your legal costs in case legal action is taken against you. This is known as "errors and omissions insurance", or E&O insurance for short. This is a kind of malpractice insurance for filmmakers, and policies typically protect you against claims of defamation, privacy, copyright infringement, and the unauthorized use of trademarks, amongst others. Initially available only in the US and UK, this type of insurance is increasingly available in other countries as well. You won't be able to do any distribution deals until you have E&O insurance in place, making it an essential requirement. We discuss E&O in detail below in section 3.4.

There are a number of resources and organisations that can help you find this information. Books such as McNae's Essential Law for Journalists, free seminars run by organisations such as the Media Law Resource Centre in New York and similar organizations and law firms elsewhere, and websites such as Columbia University's Global Freedom of Expression Resources all have useful guides and information. A list is provided in section 3.8 at the end of the chapter.

Remember, you do not need to educate yourself to degree standard, and don't presume that having read up on the law you won't ever need a professional lawyer. The goal is merely to be informed - and when the time comes that you do need a lawyer, knowing the basics of the law will help you ask questions and choose the right one.

Keep reading to find out to find out more about these key areas we suggest it's worth knowing more about. But first...

3.1 Finding a Lawyer You can Trust - the Inside Track

Horses for Courses

If you identify that there may be legal issues with your film, consider what type of lawyer is best placed to help you dependent on need - be it a media lawyer to help with defamation; an IP lawyer for copyright; a human rights lawyer to represent one of your subjects who might be under threat; or a lawyer in the country you are filming in to act on the behalf of you and your team. If you are not yet working with a lawyer, work through the discussion points in this section to help identify the type of assistance you might require.

Having identified a lawyer to work with, being clear and transparent with them about what you want to achieve and how you want to achieve it is important - concealing information or intentions sets a bad precedent and is unlikely to be helpful as you build trust with this potentially key member of your team.

How to choose and find a lawyer who is right for you

At some point during the project, you will probably need the assistance of a lawyer. This may be for routine work such as drafting contracts or securing rights; but it may also be because you are being sued for defamation or threatened with other legal action.

It's important not to defer getting legal advice: good advice early on about possible legal pitfalls can help you head off risks and save you making mistakes or misjudgements that end up being expensive down the line. If you are worried about how to pay for this, remember that some lawyers will give advice early and defer payment until you raise the bulk of your budget.

How much to budget for legal expense depends on the specific legal risks of your film, but USD $5k - $10k is a sensible starting number. Bear in mind however that legally complex films can cost significantly more. Put realistic legal costs into your budget from the beginning so that your funders and other partners can more easily acknowledge your needs and help to plug the gap with you.

If you get a legal threat, for example a letter from a lawyer representing someone against whom you have made an allegation who now threatens to sue you for libel unless you retract the allegation, the first rule is: don't panic. Whilst this may be the first time that you have been threatened with the law, there are legal professionals ready to help and assist. Defending legal claims is their daily work and they know what they're doing. Your job is to find the right one for you - and this guide aims to help you in that.

Choosing the right lawyer takes careful planning and consideration.

First, you'll need to consider what area of law it is that you require assistance with. If you have been threatened with a defamation claim, you'll need a lawyer that knows about that area of law; if it is copyright you need assistance with, then a copyright lawyer is required; if you or one of your subjects is under threat, then a human rights or criminal defence lawyer may be required.

In a growing number of countries, law firms have been established that specialize in media law (often also known as entertainment law, or grouped together with technology law). These will have lawyers that specialize across the various different areas of law that a documentary filmmaker is likely to encounter and are a good first port of call. If there are no such law firms in your country, then you will need to find a lawyer that specializes in the right area of law. This is likely to involve sending emails, making phone calls and speaking with a few different lawyers so you can compare and contrast them. You should observe the same security protocols when communicating with lawyers as you do for all other aspects of your production.

You should treat the process of finding a lawyer as shopping around, and you're the one who's in charge of that process. Fellow filmmakers can be useful in this - your colleagues may have dealt with similar issues and can refer you to a good lawyer, or equally, tell you of negative experiences they have had with lawyers. But never choose a lawyer just because you've been referred to them by someone; talk with them and make up your own mind.

In many countries, there are high profile lawyers who take cases that promote progressive and human rights causes. They often have an international profile, and you may be tempted to ask them to represent you. Don't make this your default option, though, always consider your specific needs and the type of response that is most likely to resolve the legal situation you're in. Depending on the situation and politics in the country, in some cases a less high profile lawyer might be more appropriate, particularly if the legal situation you're looking to resolve is technical and a-political in nature. Getting a high profile campaigning lawyer in such a case might be counterproductive - unless you really want to get the media attention. Either way, you should remain in charge of the situation: you are the client, and whatever legal and media strategies are adopted should be fully agreed with you. Beware a lawyer who finds your case interesting and sees it as a potential test case to push the limits of the law - being a martyr for press freedom is no fun.

If you don't know where to start and you can't get any recommendations from others, every country has at least one professional lawyers association - often called the law society, bar association or bar council or something similar. Visit their website, which may have listings of lawyers, or phone them up and ask if they have lists of lawyers and their areas of specialisation.

Your next step should be to select a few lawyers that seem good on paper or that you have been referred to and talk to them. Conduct interviews. Remember, you're shopping around. What you need is a lawyer who will help you finalize your project, produce a great film and get it published. Ideally, this means a lawyer who understands and has an affinity with the business of documentary filmmaking, and who can give you a realistic assessment of your legal situation. If you struggle to find a lawyer with expertise in advising the media or documentary filmmakers, what you need at a minimum is a lawyer who will listen to you, can give you realistic assessment of your options, and will leave you informed to make the right choices. For every path of action suggested by the lawyer, ask what the likely consequences, pitfalls and advantages are.

Finally, choosing a lawyer is also a personal decision. They will be representing you and you need to be comfortable with them, confident that they have listened to you, that they understand your needs and that they are empathetic to your concerns. In short, you need someone who you think you can work with.

Can't Afford a Lawyer / Can't Afford Not to Have One:

Pro bono, low bono and other fee structures

Like any other professional, lawyers will normally expect to get paid for their work. Journalists don't work for free, nor would you walk into an accountant's office expecting to get free accountancy services. You should therefore always budget legal costs into your project, including a contingency for unexpected legal services.

However, in a growing number of countries, lawyers may be willing to work 'pro bono' (that is lawyers' speak for, for free) if the work is considered to be of public interest. In some countries, professional lawyers' associations even require that lawyers do a certain number of hours of work 'pro bono'. In many states in the US, for example, there is an expectation that lawyers do at least 50 hours per year pro bono - equating to about a week's work. They have traditionally done such work for charities but increasingly there is interest from lawyers in getting involved in public service documentaries; while in the UK and elsewhere in Europe, there is also a growing culture of 'pro bono' legal work. It is certainly worth asking lawyers if they are willing to work 'pro bono'. It is well worth approaching firms and individual lawyers to explore possibilities in exchange for a credit and an invitation to the film festival launch.

Often, lawyers are more willing to do what they regard as 'easy' transactional work pro bono, such as drafting contracts which they know is unlikely to exceed a manageable number of hours, and they are less willing to take on the defence of legal actions such as defamation cases, which may well require them to commit hundreds of hours and draw on their law firm's resources.

A number of organisations have been established in recent years that function as pro bono 'clearing houses'. These organisations will assess your legal situation and then try to 'match' you with a lawyer who can work for you pro bono. Please refer to section 3.7 at the end of this chapter for a list of these organisations.

Large international law firms, particularly those with roots in the US, usually have sizeable pro bono practices and they may be keen to represent you. There are significant advantages to this, aside from the fact that they provide free legal representation: they will have significant resources to devote to your case; international links that might be useful in getting your film to international audiences; they are less likely to be susceptible to political pressure from your government; and sometimes the mere association with a large international law firm can provide you and your work with an umbrella of protection.

There are pitfalls to pro bono. If you are represented by a large firm, it is very likely that most of the actual work will be done by junior lawyers, albeit supervised by more senior lawyers. It may also be that, because the project is pro bono, your work has a lower level of priority than other, fee-paying, work; or that lawyers will only be able to do a certain amount of work pro bono or that they may be unwilling to make any changes once they feel that a project has been completed. It is very important that you ask about these things and that you have a clear understanding of what exactly the terms are on which you are getting the free legal advice. If you have an international firm representing you, it is crucial to make sure that they know the local context.

If a lawyer cannot or will not work pro bono, it is worth inquiring into other fee structures. Some are willing to work at reduced rates (sometimes known as 'low bono'), in recognition, again, of the public interest value of documentary filmmaking, or they may be able to do a certain number of hours pro bono but charge for additional work. In some cases, although this is rare, a lawyer may be able to take on legal work on a 'no win, no fee' basis. This means that you pay only if the case is won or settled on favourable terms - and usually it is the person suing you who is then liable to pay your lawyer's fees.

Organizations who can help you find and pay for a lawyer

In addition to the pro bono brokerage organizations referred to above, there are a number of international organizations who can help documentary filmmakers at risk find a lawyer, and often also pay for legal fees. A number of these groups style themselves as providing assistance to "journalists" or "the media", which is a large professional family which documentary filmmakers should consider themselves part of.

Depending on the nature of the film project, a filmmaker might be classified as a 'human rights defender' and therefore be eligible to access specific human rights defender emergency support programs. The subjects of the film might also be classified as human rights defenders and therefore be able to benefit from assistance through these programs should they need it. Please see a list of prominent organizations that provide emergency legal assistance in section 3.7 at the end of this chapter.

Each of these organizations have their own procedures to apply for assistance and forms to fill in. This can seem bureaucratic but there is no way around it - it's part of the due diligence that these organizations are required to do by their donors. Follow-up phone calls can help speed up requests for assistance - be sure to call as well as email soon after submitting a request for assistance (which is usually done through an online portal).

Most of the organizations listed at the end of the chapter are relatively small and specialized in providing emergency assistance. You can also approach one of the larger and better known human rights organizations for support, such as Amnesty International, Human Rights Watch or the freedom of expression advocacy group, ARTICLE 19. They have some resources and may be able to assist, although they tend not to advertise this on their websites.

One potential pitfall in working with any international organization is that you will need to make sure that you are in control of any publicity and advocacy around your case. Some organizations may want to run large publicity campaigns around your case. Sometimes this can be useful, but sometimes it's not - it can be better to deal with legal threats quietly and below the radar. There may also be occasions when an international organization wants to focus on your case as part of a larger campaign. Only agree to this if you and your lawyer agree that this will help your case - this will depend on the individual circumstances of your situation. Always make sure therefore that you are in charge of any strategies that involve public advocacy.

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.

3.2 Legal And Compliance: Global (including UK and US)

This section outlines the main areas of media law you need to be aware of as a filmmaker, and steps you can take to minimise legal risk throughout production. This is not a comprehensive account of the law nor a substitute for engaging a suitably qualified lawyer at an early stage in production but aims to offer an overview of key areas to be aware of.

In most countries, the main areas of the law filmmakers need to understand are defamation, privacy, contempt, copyright, and the laws that govern certification and screening. In some countries, however, the law can be used for political purposes and as a tool of harassment. A range of laws can be invoked to this end, including criminal as well as civil laws. Even if there is little substance to arrests or legal cases brought against filmmakers, journalists or activists, defending cases still takes time and expertise. In these situations, it is important that you have a good overall awareness of the law and your rights, and that you have access to a lawyer.

When a work includes potentially defamatory coverage of individuals or companies who live or reside abroad, regard needs to be had to the laws of these countries as well since claims may be brought there. This is particularly true for the UK; London has a reputation as being the 'libel capital' of the world and courts have allowed actions to be taken there against journalists from the US, Russia and elsewhere.

Defamation - Libel and Slander

Defamation law exists in every country around the world to protect the reputation of a person, a group of persons or a company or organisation from defamatory statements made about them to a third party without lawful justification. The requirements for a defamation claim vary from country to country, and even different jurisdictions within a country (in the US, each state has its own law of defamation).

Libel and slander are both types of defamation. Libel is an untrue defamatory statement that is made in writing. Slander is an untrue defamatory statement that is spoken.

Generally speaking, a statement is defamatory if, when said about a person and published to a third party, it would make reasonable people think less of that person and would cause them 'serious harm' or would be likely to do so. For a company to sue for defamation, the company must be able to show that the defamatory statement caused the company serious financial loss or would be likely to do so. For an individual, reputational harm and emotional distress may be sufficient and, depending on the jurisdiction, some sorts of statements may be considered so damaging that they are deemed to be defamation per se even without additional evidence of harm.

For a person to sue they must show;

• that defamatory language was used about them, meaning that what was said or published lowered the reputation of the claimant in the eyes of society;
• that they were identified or identifiable; and
• that the words were published to another, i.e. a third party.

In many but not all countries, the claimant also needs to show that the defamatory words caused them serious harm.

The requirement in English law, that in order to sue for defamation, claimants must show that a defamatory statement causes serious harm or would be likely to do so (or, for companies, serious financial loss) is relatively new. It was hoped that this new requirement would make it harder for claimants to sue for defamation, although recent case law suggests that the hurdle is not as high as some had hoped it would be. What it does mean though is that trivial matters are unlikely to be actionable.

It does not matter whether the statement is intended to be defamatory-what is important is that the statement itself is false, and that the publisher had some knowledge or reason to know it was false. In most cases, it also does not matter if you are republishing someone else's defamatory statement-the republishing itself can be defamatory.

In most countries, once a claimant has shown the three elements referred to above - that a statement was published, that it refers to them, and that it is defamatory - you, the filmmaker (as the defendant), must be able to prove in a court of law that the defamatory statement you made in your film is backed up by evidence and can be proved to be true, or that you could avail yourself of some other defence. In other words, the person suing does not have to prove that the defamatory statement, said about them, is false.

If you are sued and the court finds against you, you would likely have to pay damages (a sum of money, which could be as high as several hundred thousand pounds depending on the seriousness of the libel), plus your own legal fees. In addition, in the UK, you would likely have to pay the claimant's legal fees. Your film could also be subject to an injunction before, during or after the court hearing, in which case it would be prevented from being distributed.

The avoidance of defamatory statements is not intended to be a dampener on free speech - accuracy and fairness are essential aspects of ethical filmmaking.

Now let's look at some examples of defamatory statements:

• Donald has committed a criminal act...
• Hillary is a liar, is dishonest or has committed a fraudulent act ...
• Donald took a bribe; Donald tried to bribe Hillary ...
• George stole from Bill; Bill is a thief ...
• Hillary is violent or abusive in some way ...
• Barack damaged George's property ...
• Ronald is a drug dealer, a drug user or, simply, 'is involved in' drugs ...
• Harry is a hypocrite ...
• Gerald is bankrupt; is nearly bankrupt

If your film alleges something potentially defamatory, of some identifiable individual or company, and you are sued, there are several possible responses. Two of the most common bars to a defamation claim are the truth of the statement, if it is factual, or that the statement asserts an opinion rather than a fact that is capable of being proved true or false, referred to as the honest opinion defence in the UK.

In addition, there are other defences for those who publish defamatory material in certain prescribed circumstances, such as in proceedings in court or in parliament, and when journalists are fairly and accurately reporting such proceedings. Depending on the jurisdiction, such defenses may be referred to as an absolute or qualified privilege (UK and other common law¹ countries), or a fair comment or fair report privilege (US).

The following are some common assumptions which are not defences to defamation in most countries, including the US or the UK:

• I didn't mean to defame X, it was accidental. Intention is irrelevant. Defamation can still occur by juxtaposing images and words in a way that may accidentally defame someone.
• I didn't mention X by name. If X is otherwise identifiable he/she is likely to be able to sue
• I just reported what someone else told me, but I don't necessarily believe what they are saying. In most cases, someone repeating a defamatory statement is just as liable in law as the original speaker
• The statement was intended as a joke, it's obvious that we didn't mean it / it was satirical. Intention is irrelevant. What is important is what would be understood by viewers, readers, listeners
• The statement has already been published elsewhere (on the Internet, in the newspaper, on the radio) and everyone knows it's true.

  Prior publication elsewhere is not a defence that will stack up in a court of law.

"Libel Tourism"

If a work has been shown widely, globally even, it is common for a litigant to choose the most favourable jurisdiction to sue in. Often this can be the UK, because its libel laws make it easy to launch claims. This has led to a phenomenon known as "libel tourism". If your project covers a person, company, organisation or any other legal entity that is either based in the UK or has a presence there, and you make defamatory allegations about them (for example, accusing them of corruption), there is a risk that they may sue you there.

A court may decide to accept a claim brought by, say, an Indian business person in London if it is satisfied that there is a strong enough link with London. Examples of such a link might include business relationships, family links, or ownership of a house. In the past, English courts have allowed a Russian businessman to sue a Russian journalist for defamation on the basis that he had a house in London, some business relationships and intended to move to London at some point in the future.

You should be aware that defending defamation claims in the UK is very expensive - prohibitively expensive, even. Defending a defamation case at trial will cost tens if not hundreds of thousands of pounds, and you are potentially liable for the costs of the claimant's lawyer as well. If you get a defamation claim from a UK lawyer, you should immediately seek legal advice.

There is also a risk of getting sued in other foreign jurisdictions if defamatory allegations concern a person who has a link to one of those countries. Should you get a letter from a lawyer claiming defamation in one of those countries, you should seek legal advice from a lawyer in that specific jurisdiction.

Evidence

The best defence to defamation is to be able to prove that the statement is true. This ultimately comes down to rigorous fact checking, and ensuring that the relevant evidence is available to you if necessary.

If you are sued over defamatory material in your film, and you are looking to defend the claim by proving that your film is substantially true, you are going to need evidence. The best forms of evidence are witnesses' testimony i.e. of things they themselves have seen or heard; and documentary evidence, in other words - notes, letters, emails, documents - or even recce tapes, sizzlers and rushes - which prove particular facts. If you want to include potentially defamatory material within your film, one of the first and most important things is you, along with your lawyers, to consider what evidence would be available to you if you are sued. Newspaper cuttings etc are not evidence, in that they are not proof of the truth of their content - all that they prove is that the allegation has been previously printed in a newspaper, and as noted above, that is not a defence to a defamation charge.

Note that wherever potentially defamatory allegations are made-any allegations of wrongdoing, or incompetence, or other significant allegations-in some jurisdictions (including in the UK) it is very important to seek a right of reply from the subject of the allegations. Where a response is provided, either by interview, or in writing, this should normally be fairly reflected in the film.

How and when to approach subjects with the allegations needs very careful thought. Expert legal advice should always be sought before approaching subjects.

Ensuring that your facts are correct is always going to be extremely important.

Always research facts rigorously; ensure contributions are fairly and accurately edited and do not misrepresent the speaker. Seek a right of reply wherever significant allegations are made, and where relevant ensure that any responses provided are fairly included in your film.

Discoverable Information

If a court case is brought against a film, you may be required to share key documentation with the other side. Your production emails, documents, proposals and notebooks (including your Safe+Secure protocol and checklists) may be deemed discoverable evidence.

Such evidence may be used to substantiate a claim that the film started from a place of prejudice against an individual or organisation instead of proceeding in a fair and balanced way. A stitch-up rather than an investigation in other words.

It is therefore best practice to assume, right from the very beginning, that any written paperwork attached to a project could be used in evidence against it and make sure that you never use loose or prejudicial language.

For example, whilst filling in your risk assessment forms it is fine to say:

"X company has a track record of bringing court cases against journalists writing about their operations. Given that we are investigating whether or not there has been corruption in their supply chains, we are at an increased risk of legal action".

It is not advisable to write:"Given we are going to expose these scoundrels as corrupt, they will probably try to silence us with a court case".

Distinctions Under US Defamation Law

There are important distinctions for US law, which are summarised below; and for India and Brazil we refer to the separate entries for those countries in section 3.5 and 3.6 respectively.

US law is somewhat more protective of free speech rights than English law, owing to the First Amendment to the United States Constitution and similar provisions in State constitutions. This manifests itself in a few ways, most notably the degree of fault required for liability and the burden of proof. In the US, to be defamatory, a statement must be published with some level of fault on the part of the defendant. This requirement varies depending on whether the content concerns a public figure or a private figure.

If the statement is about a public figure, then the statement must be made with knowledge that it was false or with reckless disregard of whether it was false. This is called the "actual malice" standard. However, it is a knowledge requirement and does not refer to motive. If one honestly believes a statement about a public figure to be true, publishing the statement out of spite and with intent to harm is not defamatory in the US, whereas if a statement is published with knowledge of its falsity, it will be defamatory even if the motivation was innocent.

The standard is less strict for private individuals. If a statement is about a private figure, it need only be made with negligence as to its falsity in order to give rise to liability for defamation.

In US defamation proceedings, the burden of proof may shift depending on what state the proceedings are in and whether the statement is about a public or private figure. It is common that, if the statement is about a public figure, the plaintiff (the person bringing the defamation suit) must prove that the statement was false in order to win their case. However, if the statement is about a private figure, the defendant may be required to prove that the statement was true.

If you are operating in the USA, it's also worth being aware that documentaries can become the target of a Strategic Lawsuit Against Public Participation (SLAPP) - a lawsuit that is intended to censor, intimidate and silence critics by burdening them with the cost of a legal defence until they abandon their criticism or opposition. Many jurisdictions,have Anti-SLAPP legislation in place, which attempts to balance a plaintiff's right to bring a legal action with a defendant's right to free expression. Some US states have more robust anti-SLAPP protections than others.

Example: Oscar-winning filmmaker Errol Morris, his producers and distributors were sued by the subject of his 2010 documentary 'Tabloid' after the subject alleged she was tricked for appearing in the film. Morris and his co-defendants brought an anti-SLAPP motion on grounds that the lawsuit served to stifle free speech. Ultimately, after a number of other accusations by the subject, the case was dismissed for lack of prosecution.

Privacy / Public Interest

In the UK, the US, and most other countries around the world, individuals have a legal right to privacy. As filmmakers you also have the right to freedom of expression. Balancing these two rights is at the heart of understanding privacy law.

In most cases, the act of filming someone is an infringement of their privacy. If you film someone in their home that is almost certainly likely to infringe their right to privacy. Even in a public place, if you film someone engaged in a private act, that may also infringe privacy. Content related to a person's sexual habits are very likely to be an invasion of privacy and content related to their innermost thoughts and private life (e.g., illness, diaries, affectionate letters, conversations with family members) requires a very strong public interest in the content or else must already have been published by the persons themselves.

In the US, there are multiple types of privacy claims, which vary state by state. Examples of such claims are: public disclosure of private facts; false light invasion of privacy (i.e. portraying someone in a false light); intrusion into private affairs; and misappropriation of one's name or likeness.

In the UK and many other common law countries, privacy claims are similar although they go by different names - "breach of confidence", for example. A growing area of privacy law - and therefore an area of concern for journalists and filmmakers - is data protection law: this protects an individual's personal information. Originally found in EU countries, this concept has spread to many other countries as a corollary of EU trade agreements and can be used by individuals to stop journalists from publishing what is deemed to be 'personal data' unless they can show publication is for the purpose of journalism, academia, art or literature and that they believe publication would be in the public interest.

When contributors agree to appear in your film and sign a release form they are in effect consenting to have their privacy infringed (by the act of filming them). When consent has not been given, you could be infringing that person's right to privacy.

Whenever film-makers infringe individuals' privacy rights, this must be warranted - either by having the individual's consent, or in some other way, e.g., because it is in the public interest (UK and many other common law countries) or is newsworthy (US).

If you infringe privacy, this may lead to you being sued. As with other areas of the law, if you are unsuccessful, this may lead to the court ordering that you pay money damages (which can be quite substantial) and imposing an injunction against your film, preventing you from showing it. Privacy law is an area of law where injunctions are common and in extreme circumstances could lead to your film sitting on a shelf for long periods of time.

Secret Filming is the most obvious example of where privacy rights are infringed. In some cases this can be justified by the public interest. If you are considering secret filming, it is very important that you seek expert legal advice before you carry it out. This ensures that it is set up correctly (i.e. legally) and allows it to be used in your film. Undertaking secret filming without advice could lead to that material being deemed unusable at a later date when you seek a legal opinion for your E&O insurance, so it is best to plan in advance in collaboration with your lawyer. We request that you follow these procedures in order to avoid making yourself vulnerable to legal challenge.

'Door Stepping' - this is where you turn up at somebody's house or place of work unannounced and attempt to film an interview with them. Such interviews without prior arrangement need careful thought - getting it wrong is likely to infringe privacy unwarrantably and could lead to an injunction.

Public Interest. As noted, secret filming and doorstepping (and indeed other infringements of privacy) can sometimes be justified by the 'public interest'. So, what does the public interest mean? Black's Legal Dictionary definition is rather vague "The welfare of the public as compared to the welfare of a private individual or company. All of society has a stake in this interest and the government recognises the promotion of and protection of the general public." The Ofcom Broadcasting Code - the code of the UK's media regulator - gives the following more specific examples of the public interest: revealing or detecting crime, protecting public health or safety, exposing misleading claims made by individuals or organisations or disclosing incompetence that affects the public. Many other common law countries follow similar definitions, but you should be aware that there is an element of uncertainty inherent in this. If you are in doubt, it is best to seek legal advice.

Newsworthiness (US)

Determining whether an invasion of privacy will be defensible as newsworthy in the US is a complex legal question that is very dependent on the specific circumstances. When prominent figures such as politicians and celebrities are involved, courts have found some details of their private lives to be newsworthy. However, in the recent high-profile case Terry Gene Bollea v. Heather Clem, et al, (a.k.a. Hulk Hogan v. Gawker), a jury awarded Hulk Hogan $115 million after Gawker published a sex tape depicting the famous wrestler, even though he had repeatedly appeared on radio programs publicly discussing issues of a personal and sexual nature.

Whenever you are seeking to rely on the public interest or newsworthiness to justify infringements of privacy or the revealing of confidential information, we request that you seek advice from a suitably qualified lawyer. If legal proceedings were brought against your film in such circumstances, it would be for a judge to decide ultimately if the public interest defence succeeded and justified the infringement of privacy.

Contempt (UK and most common law countries)

In the UK and most common law countries, the law of contempt exists to protect the integrity of the legal process and allows trials to proceed without undue outside influence. In particular, jurors deciding criminal trials in the Crown Court must be able to consider the facts of the case presented to them in court, and come to a verdict based on those facts, without being swayed by extra details and claims that may be in the public domain i.e. reported by the media. In some countries, such as India or Singapore, contempt laws also prohibit what is known as 'scandalizing the court'. This has its origins in the common law and prohibits any attempt to bring the courts into contempt and lower their authority. In many countries this remains in active use and is used to protect the judiciary from criticism.

In the UK, contempt laws make it a criminal offence for filmmakers to publish information which amounts to a substantial risk of serious prejudice to certain active (current) legal proceedings. It is also a criminal offence to do an act in contravention of a specific reporting restriction or court order made by a judge.

In the UK, there are also laws about who can have access to certain documents which are created or supplied for the purposes of court proceedings. Breaching these laws is also a criminal offence.

Contempt rules in the UK and most other common law countries are more stringent than in some other countries e.g. the United States. However, wherever films touch upon legal proceedings, particularly current proceedings that are on-going, film-makers must check to see whether there are any legal restrictions on reporting those proceedings - whether contempt rules apply or whether a specific order has been made by the court restricting what can be reported or referred to.

What can be reported and what cannot varies according to the type of court and trial - a brief summary can be found on the BBC Academy website here, but legal advice should always be sought.

3.3 Securing Legal Rights

Copyright and Clearances

Filmmakers must begin clearance work at the inception of the film, continue during filming and complete it at final cut. The following are some of the clearance procedures an insurance company recommends a filmmaker follow:

• When utilising underlying works such as book, scripts or screenplays, a copyright report should be obtained to make sure the chain of title of all works on which the production is based is thoroughly investigated and cleared back to the original copyright owners to determine that all grants or transfers in the chain of title permit you to assign or sub-license the material in your production.
  • Written agreements must exist between the producer, creators, authors, writers, performers and any other persons providing material.

• Written releases must be obtained for faces and likenesses of any recognizable living persons. All releases must provide the producer with the rights to edit, modify, add to and/or delete material, change the sequence of events or of any questions posed and/or answers given and to fictionalize persons or events.
  • Musical rights must be obtained from the composer and/or performers of specially commissioned music and/or cleared with the owners of pre-existing music and/or recordings.
    • All licenses and consents must be obtained from the copyright owner and any person or entity depicted in the film clip and photographs. A documentary filmmaker will need to obtain permission from the copyright owner and permission from people being depicted in the film clip. If the Fair Use doctrine is to be utilised, a filmmaker must obtain a fair use opinion letter from an experienced clearance attorney.

Fair Use / Fair Dealing

Underlying rights in third party copyright works should normally be cleared/licensed. In exceptional circumstances however, you may be able to rely on fair use or fair dealing.

Fair use and fair dealing are defences to copyright infringement. Fair use is a US defence; fair dealing is a UK defence. These defences enable content producers, in certain prescribed circumstances, to use small parts of other people's copyright works without the copyright owner's consent, even where permission has been explicitly refused.

This is a complicated area of law which has received much scrutiny in the filmmaking space leading to many misconceptions and assumptions.

It is also important to note that fair use is an area of US law which has developed in a distinct direction from fair dealing - in other words they are not the same. Material which may fall within the fair use doctrine may not fall within fair dealing.

The Center for Social Media and Impact at the American University has provided a comprehensive set of resources to help US filmmakers navigate this area of the law.

If you are considering relying on fair use or fair dealing, you should familiarise yourself with the basics of the law and seek advice from a suitably qualified lawyer. Note that if you intend your film for worldwide distribution, you are unlikely to be able to rely on the fair dealing exception.

Contracts

Contracts with your contributors and crew are legally binding and need to be carefully drafted. It's important to note that any breach of contract by you is not covered by E&O insurance so any legal fees or financial penalty resulting from this would need to be covered out of your own pocket. Always hire a suitably qualified lawyer/professional to handle your contractual matters.

Suggested Team Discussion Points:

3.4 Media Liabilities / Errors And Omissions Insurance (E&O)

Errors & Omissions (E&O) protects filmmakers from lawsuits pertaining to theft of idea, copyright infringement, libel, slander, invasion of privacy, defamation, product disparagement, trade libel, infliction of emotional distress, right of publicity, outrage and outrageous conduct, false light, wrongful entry, false arrest or malicious prosecution. E&O insurance covers not only damages that a court may order a filmmaker to pay, but also legal costs.

Errors & Omissions is a mandatory requirement for distribution deals with studios, television, cable networks, DVD and Internet sites. These distributors of media require the filmmaker to protect them from claims that may result when the production is released and exploited. Distributors normally outline the required licensing terms and limits in their agreements -- for example, standard limits are £1,000,000 per claim (£3,000,000 aggregate) with an excess of £10,000.

Insurance companies will need a legal opinion in order to quote for worldwide E&O insurance. It is usually not possible for this opinion to be offered until picture lock on a film, when the film has been thoroughly 'legalled' (including the verification and presentation of all requisite contributor release forms and key contracts) and any required changes made. This period of time - when the film is finished but before insurance has been secured - is a vulnerable time for the filmmaker. This is particularly true if you are making a film about a powerful person / organisation and you have had to grant that person / organisation an opportunity to respond to potentially damaging allegations that you make in your film. It is possible for that person to seek an injunction of your film. Acting swiftly to secure E&O as soon as possible by providing a legal opinion to the insurance company from a suitably qualified lawyer - and one acceptable to the insurance company.

Because E&O insurance is only likely to be in place once the film has been completed, carefully consider what information is being shared about the film in the public domain and whether it may be legally prejudicial to the production or could dissuade E&O insurers from getting involved. This includes film website, social media, material associated with pitching forums and markets.

Finding The Right Broker

Only use an E&O broker who is experienced in providing insurance for non-fiction films. This ensures that your policy is fit for purpose and affords you proper protections. Brokers who mainly deal with fictional film may not be appropriate for your documentary. Your best source of information on brokers is your fellow filmmakers, ask them! Some recommended brokers include:

? Media Insurance Brokers (UK)

? Fractured Atlas (US)

? Chubb (US)

? Hiscox (UK)

? Axis (UK)

? One Beacon (US)

Filling Out The Application Form

The application form is likely to be long and detailed. If it is not, this is a red flag that your broker is not equipped to find insurance for you! You must fill out the form correctly - innocent mistakes could result in not getting cover, or the insurance company claiming at a later date that the insurance is invalid. Do not try to 'fudge' answers or second guess if you are unsure what the form is asking - if in doubt ask your lawyer to help you fill out the form, or seek clarification from the broker.

Do not intentionally leave out information that you feel could damage your chances of getting cover. This includes threats of claims against your film. You could find that your policy is invalidated further down the line.

Understanding Deductibles

A deductible is an 'excess' applied to your policy. An insurance company will often quote a high deductible if they think a film is risky and will attract claims. However, not only does this place you in the position of having to pay a high excess in the event of a claim, it can cause difficulties getting distribution; most distributors will require an E&O policy with a deductible of no greater than £25,000.

Compare And Negotiate

If possible, try to get more than one quote for your E&O policy as for low risk films the prices can vary considerably. Pay close attention to the deductible, how much the policy will pay per claim as well as the aggregate amount the policy covers and when selecting insurance and negotiating.

Suggested Team Discussion Points

3.5 Legal And Compliance - India

This section outlines the main areas of media law you need to be aware of as a filmmaker working in India, and steps you can take to minimise legal risk throughout production. This is not a comprehensive account of the law and is not a substitute for engaging a suitably qualified lawyer at an early stage in production.

Filmmakers should be aware that there is a common practice across India of using the law for political purposes, as a tool of harassment. A range of laws can be invoked for this purpose, including criminal as well as civil laws. Even if there is little substance to arrests or legal cases brought against filmmakers, journalists or activists, but defending cases still takes expertise and time and it is important for filmmakers to both know the law and have access to a lawyer.

In addition to the main areas of the law filmmakers everywhere should understand, in India you need to also be aware of the law of sedition. You should also know that the laws relating to defamation, privacy, and contempt are subtly different in India from elsewhere. If you want your film to be shown in India, you also need to be aware of the process and requirements applied by the Central Board of Film Classification. The following paragraphs outline the main features.

Note that if your work includes potentially defamatory coverage of individuals or companies who live or reside abroad, regard needs to be had to the laws of these countries as well since claims may be brought there. This is particularly true for the UK; London has a reputation as being the 'libel capital' of the world and courts have allowed actions to be taken there against journalists from the US, Russia and elsewhere. You should refer to the section on 'libel tourism' in the main text of section 3.2, above.

Defamation - India

Defamation law exists to protect the reputation of a person (or company) from defamatory statements made about him/her to a third party without lawful justification.

Libel and slander are both types of defamation. Libel is an untrue defamatory statement that is made in writing. Slander is an untrue defamatory statement that is spoken orally.

A statement is defamatory if it is made to cause harm to the reputation of a person, company or organization, or if the person making the statement should have known that it would cause harm to reputation. Companies as well as individuals may sue for defamation, and even public bodies such as government departments (although in practice, it is usually public officials who would file a claim). Under Indian law, defamation is a criminal offence, meaning that an accused may be arrested, prosecuted and, if found guilty, punished with a fine or imprisonment for up to two years; as well as a civil matter, which means that a person may be sued for financial damages.

For a person to sue they must show;

• that a statement has been 'published' (that is, made to a person other than the claimant and the defendant);
• that they were identified or identifiable; and
• That it is defamatory, meaning that it tends to lower the reputation of the claimant in the eyes of society

When a claimant shows this, a judge can issue an injunction prohibiting further showing of the film until the matter is settled on the merits.

In a criminal defamation case, the prosecution must prove beyond reasonable doubt that the offence of defamation was committed with intent, or "with reckless disregard for the truth".

Whereas, in a civil case, it does not matter whether the statement is intended to be defamatory-what is important is that the statement itself is false. In most cases, it also does not matter if you are republishing someone else's defamatory statement-the republishing itself can be defamatory.

Once a claimant has shown the three elements referred to above - that a statement was published, that it refers to them, and that it is defamatory - the "burden of proof" is on the filmmaker (as the defendant) to prove that the defamatory statement you made in your film is backed up by evidence and can be proved to be true, or that you could avail yourself of another defence). In other words, the person suing does not have to prove that the defamatory statement, said about them, is false.

Under Indian law, the most common defences to a defamation claim are the truth of the statement, if it is factual, or that the statement was made in good faith and concerns an issue of public interest. In the case of a criminal defamation claim, a defence of truth applies only if the statement also concerns a matter of public interest. For example, if a defamatory allegation is made of a public official then for a defence of 'truth' to succeed, it would also need to be demonstrated that the allegation relates to that official's public functions. If a defamatory allegation is made purely in relation to a public official's private life, such that they are engaged in an adulterous affair, a judge may not be persuaded that publishing this is in the public interest.

In addition, there are other defences for those who publish defamatory material in certain prescribed circumstances, such as in proceedings in court or in parliament, and when journalists are fairly and accurately reporting such proceedings and concern an issue of public interest.

Prior publication elsewhere is not a defence that will stack up in a court of law.

If you are sued under civil law and the court found against you, you would likely have to pay financial damages (a sum of money, depending on the seriousness of the libel), plus your own legal fees. You would likely have to pay the claimant's legal fees as well. Corporations are known to sue for high amounts - in the 100s of crores - and while courts do not often award high or punitive damages, the mere possibility that they might has a real chilling effect. If you are sued under criminal defamation laws, you face imprisonment for up to two years and a fine. For both civil and criminal cases, your film could also be subject to an injunction before, during or after the court hearing in which case it would be prevented from being distributed.

The avoidance of defamatory statements is not intended to be a dampener on free speech - accuracy and fairness are essential aspects of ethical filmmaking. Always research facts rigorously; ensure contributions are fairly and accurately edited and do not misrepresent the speaker.

While Indian law does not require it, it is nevertheless good practice to seek a reply whenever potentially defamatory allegations are made-any allegations of wrongdoing, or incompetence, or other significant allegations. Where a response is provided, either by interview, or in writing, this should normally be fairly reflected in the film.

How and when to approach subjects with allegations, needs very careful thought. Expert legal advice should always be sought.

"The process is the punishment"

One of the reasons that it is so important to seek legal advice immediately when a defamation claim is received is that the process of defending a claim can be very punitive in itself. In India, defamation cases can drag on for years, and it is common for claims to be lodged in cities hundreds of miles from the defendant's - your - residence, forcing you to make multiple return trips and invest time, money and effort that you should instead be spending on your films. The fact that the criminal law can be used for defamation is a further deterrent: the threat of criminal punishment looms heavy. An expert lawyer will help you navigate these obstacles and, as much as possible, ease the process of defending a claim.

Privacy

In India, the right to privacy is constitutionally protected. As filmmakers, you also have the right to freedom of expression. Balancing these two rights is at the heart of understanding privacy law.

In most cases, the act of filming someone is an infringement of their privacy. If you film someone in their home that is almost certainly likely to infringe privacy. Even in a public place, if you film someone engaged in a private act, that may also infringe privacy. Content related to a person's sexual habits are very likely to be an invasion of privacy and content related to their innermost thoughts and private life (e.g., illness, diaries, affectionate letters, conversations with family members) requires a very strong public interest in the content or else must already have been published by the persons themselves.

When contributors agree to appear in your film and sign a release form they are in effect consenting to have their privacy infringed (by the act of filming them). When consent has not been given, you could be infringing that person's right to privacy.

Whenever film-makers infringe individuals' privacy rights, this must be warranted. There are three possible exceptions: first, that a person has become a public figure by raising controversy or thrusting themselves into the public spotlight; second, if information considered private is in fact based on public records; and third, government officials cannot claim privacy in respect of the performance of their public functions.

If you infringe privacy, this may lead to you being sued. As with other areas of the law, if you are unsuccessful, this may lead to the court ordering that you pay financial damages (which can be quite substantial) and imposing an injunction against your film, preventing you from showing it. Privacy law is an area of law where injunctions may be issued and in extreme circumstances could lead to your film sitting on a shelf for long periods of time.

Secret Filming is the most obvious example of where privacy rights are infringed. Courts have held that in some cases this can be justified by the public interest and that the camera can be used as a tool for justice. However, whatever is filmed must be true and there can be no entrapment. If you are considering secret filming, please read more about it in section 3.2 and know that it is very important that you seek expert legal advice before you carry it out.

Sedition

India has strict public order laws that filmmakers should be aware of, particularly in relation to sedition, hate speech and for the prevention of terrorism.

"Sedition" is the offence of bringing the government into hatred or contempt, or exciting or attempting to excite disaffection towards the government. The expression "disaffection" includes disloyalty and all feelings of enmity. The offence dates from the colonial era and there is a clear tension between it and the very concept of democracy - bringing the government into contempt could be said to be part of the core job description of opposition politicians. Yet, it has survived into the democratic era, in India as it has in many other countries (in the UK itself, seditious libel was abolished only in 2010), and cases are brought regularly: against cartoonists, political dissidents, and even against villagers protesting a nuclear power plant in Kerala.

A key exception is that the law does allow criticism of government policy or measures, "to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection." This has been relied on by the courts to acquit defendants who expressed criticism in strong terms, but without inciting violence or seeking to start a revolution - for example the cartoonist referred to above was eventually acquitted. The problem for filmmakers (and other journalists) is that the offence still exists, and that prosecutions continue to be instigated, placing a heavy burden on defendants (as with defamation claims, it is common for sedition claims to be lodged hundreds of miles from where a defendant lives, forcing frequent travel back and forth). It is therefore important that filmmakers steer clear of the boundaries and seek legal advice on this point.

Indian filmmakers will be acutely aware that religious sentiments are running high. Individuals who have (been perceived to) criticise religions have been arrested whilst mobs have lynched individuals accused of disrespecting their religion. Separate penal code provisions prohibit religious hate speech, defined as "promoting enmity between different groups of the country on the grounds of religion, race, place of birth, residence, language, or any such grounds"; committing any act that is "prejudicial to the harmony of the public"; and "deliberate and malicious acts, intended to outrage religious feelings or any class by insulting its religion or religious beliefs". As with sedition, not many prosecutions are successful but they are nevertheless instigated. If your project touches critically on issues of religion, you should consult your lawyer.

Filmmakers should also be aware of India's strict anti-terror laws, particularly in Jammu and Kashmir, and in Jharkand and Chhattisgarh. You should consult a lawyer if you plan to film in any of these places, as well as draw up a security plan. There has also been a severe clampdown on armed revolutionary groups and all those suspected of sympathizing with them, which has resulted in the arrests of civil society activists. Any filmmakers planning projects on topics that touch on these issues should consult a lawyer.

The Central Board of Film Certification

In order for your film to be shown it needs to be certified by the Central Board of Film Certification. This body has a track record of making it difficult for documentary filmmakers to get their work out. In 2014, it refused to certify the documentary film No Fire Zone, about the Sri Lankan civil war. It had won a string of international film awards, including at human rights film festivals, but the Board refused to certify it on the grounds that it would 'prejudice friendly relations' between India and Sri Lanka.

Under the Cinematograph Act of 1952, the Board may refuse to certify a film if the Board deems that it is against the interests of the sovereignty, integrity or security of the State, friendly relations with foreign States, public order, decency or morality, involves defamation or contempt of court or is likely to incite the commission of an offence. The Board may also direct you to cut or otherwise change parts of the film that it deems to contravene any of these interests; it may require you to get additional clearances from persons featured in the film; or it may issue a restricted certification.

Decisions of the board can be appealed to a Tribunal, and documentary filmmakers have been able to overturn decisions of the Board in this way. It goes without saying that the assistance of a lawyer will be required in this.

The team behind "An Insignificant Man" managed this after meaningful international pressure and legal assistance; When the team initially applied for a censor certificate, the Board asked the filmmakers to obtain "no objection" certificates from Prime Minister Narendra Modi, former Delhi Chief Minister Sheila Dixit and the protagonist Arvind Kejriwal, and to edit out the names of Congress and BJP politicians. This was unacceptable to the filmmakers who appealed to the Tribunal which eventually ruled in their favour, emphasizing that "requiring no objection certificates from public personalities would cull the documentary cinema, rather render the making of a documentary on political scenario nigh impossible."

Fair Use / Fair Dealing

Underlying rights in third party copyright works should normally be cleared/licensed. In exceptional circumstances however, you may be able to rely on fair use or fair dealing. Under Indian law, fair dealing is allowed for the purposes of private use, including research; criticism or review; or for the reporting of current events and affairs. In India, as elsewhere, this is an area of law that is under development.

Suggested Team Discussion Points:

3.6 Legal And Compliance - Brazil

This section outlines the main areas of media law you need to be aware of as a filmmaker working in Brazil, and steps you can take to minimise legal risk throughout production. This is not a comprehensive account of the law and is not a substitute for engaging a suitably qualified lawyer at an early stage in production.

The legal and political environment for independent filmmakers has deteriorated markedly since the inauguration of President Bolsonaro. There has been a strong emphasis on 'enforcing' public security, at the cost of the protection of human rights. Police violence has become an even bigger issue than it already was and the rule of law is in decline. The authorities have very little tolerance for criticism and press freedom is not respected. There has been politically motivated violence and arrests, including of journalists and activists. If your project touches on sensitive topics, such as crime, narcotrafficking or the environmental and land rights issues on which Bolsonaro has initiated controversial policies, or if you intend to film public protests, you should take appropriate legal and security precautions.

The main areas of the law that filmmakers in Brazil need to understand are defamation, privacy and copyright. You should be aware that defamation and the disclosure of confidential information are criminal offences punishable with imprisonment and/or a fine, although in practice most cases are brought under civil law statutes which provide for the claimant to be awarded financial compensation. Your film could be injuncted - meaning it would sit on the shelf - pending resolution of a case.

Note that if your work includes potentially defamatory coverage of individuals or companies who live or reside abroad, regard needs to be had to the laws of these countries as well since claims may be brought there. This is particularly true for the UK; London has a reputation as being the 'libel capital' of the world and courts have allowed actions to be taken there against journalists from the US, Russia and elsewhere. You should refer to the section on 'libel tourism' in section 3.2, above.

Defamation, calumny and injury

Defamation law exists to protect the reputation of a person (or company) from defamatory statements made about him/her to a third party without lawful justification. Under Brazilian law, defamation is a criminal offence and can also be pursued under civil law. Under the criminal code, penalties of imprisonment and a fine are available (although imprisonment is seldom imposed) and the police can get involved; under civil law, the claimant can be awarded financial compensation and it's the person claiming to have been defamed that pursues the case, not the police or state prosecutors. In practice, most cases are taken under the civil code.

There are three provisions in Brazil's criminal code that deal with 'defamation': Article 138 prohibits 'calumny'; Article 139 prohibits 'defamation'; and Article 140 prohibits causing 'injury'.

The criminal offence of calumny is committed by intentionally falsely accusing someone of a crime. Examples of convictions for calumny include the case of a newspaper that accused a judge of threatening them with fines and imprisonment of its staff but could not prove these accusations; and, in another case, unproven allegations of election fraud. The only defence to a charge of calumny is truth: the person making the allegation must be able to prove that it is true.

The criminal offence of defamation is committed when a false statement is made about a person that intends to harm their reputation. Examples of statements found to have been defamatory include a newspaper report that accused a mayor of not being transparent about municipal accounting procedures; and an accusation in another newspaper that a mayor was "mentally disordered". But for criminal defamation to stand up in court, the police/prosecution have to show that there was "intent" on the part of the filmmaker to defame and that can be really difficult to prove unless there is very clear evidence. A defence of 'truth' is available only if the person about whom the statement was made is a civil servant and the criticism concerned the exercise of their public functions.

The offence of 'injury' is committed when a statement is made that offends a person's honour and dignity. This can be the mere use of words that express a negative image and that offend someone's self-image. Whilst there is a public interest defence based on the constitutional right to freedom of expression, this will not allow for what can be perceived as 'name calling'. For example, a news report that described a political candidate as a "hypocrite" and "false moralist" was held to be injurious because the court held that the intention had been to offend rather than make a criticism in the public interest. In another case, a journalist was convicted for referring to a local mayor as a "scoundrel": the court held that this went beyond the permissible expression of criticism. On the other hand, calling a political opponent "selfish" and a "political opportunist" was found to constitute legitimate criticism. Similarly, referring to an elected politician as "incompetent" and "unable to exercise their function" was not held to be injurious because there had not been intent to cause injury, but instead to inform public debate.

Now let's look at some examples of potentially defamatory, calumnious or injurious statements:

• Donald has committed a criminal act...
• Hillary is a liar, is dishonest or has committed a fraudulent act ...
• Donald took a bribe; Donald tried to bribe Hillary ...
• George stole from Bill; Bill is a thief ...
• Hillary is violent or abusive in some way ...
• Barack damaged George's property ...
• Ronald is a drug dealer, a drug user or, simply, 'is involved in' drugs ...
• Harry is a hypocrite ...
• Gerald is bankrupt; is nearly bankrupt

For calumny, injury and defamation it is considered an aggravating circumstance if the offence is committed against a public official, the President, or an elderly or disabled person, or if there are discriminatory elements to the allegations (for example, if the defamatory statement makes reference to someone's ethnicity or religion).

The prosecution in criminal cases for calumny, defamation and injury must prove 'intent'. This can be a high hurdle. For example, a journalist who had reported that proceedings had been instituted against an education institution was acquitted of defamation because the court held that the journalist's intent had been to inform the community, not to defame.

Under civil law, a person may sue for financial damages for defamation, calumny or injury regardless of whether a criminal case has been lodged. There is a common practice of public officials and even judges suing for large sums in compensatory damages. Companies can and do also sue. Because of Brazil's slow justice system, cases tend to take years to get resolved, leaving the threat of damages hanging over the head of the accused.

The avoidance of defamatory statements is not intended to be a dampener on free speech - accuracy and fairness are essential aspects of ethical filmmaking.

If your film alleges something potentially defamatory, of some identifiable individual or company, and you are sued, the two most common defences are (1) the truth of the statement, if it is factual; or (2) that the statement constitutes legitimate criticism in the public interest.

In addition, there are other defences for those who publish defamatory material in certain prescribed circumstances, such as in proceedings in court or in parliament, and when journalists are fairly and accurately reporting such proceedings.

The following are some common assumptions which are not defences to a charge of defamation, injury or calumny:

• I didn't mean to defame X, it was accidental. It is possible to defame through negligence as well as through intention. Defamation can still occur by juxtaposing images and words in such a way that you should have known that this might accidentally defame someone.
• I didn't mention X by name. If X is otherwise identifiable he/she is likely to be able to sue
• I just reported what someone else told me, but I don't necessarily believe what they are saying. In most cases, someone repeating a defamatory statement is just as liable in law as the original speaker
• The statement was intended as a joke, it's obvious that we didn't mean it / it was satirical. While there is an exception for satire if understood as legitimate public criticism, this is a narrow exception and must remain within the bounds of what an ordinary person would understand as acceptable . What is important is what would be understood by viewers, readers and listeners.
• The statement has already been published elsewhere (on the Internet, in the newspaper, on the radio) and everyone knows it's true.

  Prior publication elsewhere is not a defence that will stack up in a court of law.

Whenever potentially defamatory, injurious or calumnious allegations are made-any allegations of wrongdoing, or incompetence, or other significant allegations-it is good practice to seek a reply from the subject of the allegations. Where a response is provided, either by interview, or in writing, this should normally be fairly reflected in the film.

How and when to approach subjects with the allegations needs very careful thought. Expert legal advice should always be sought.

Privacy / Public Interest

Brazil's constitution recognizes that all individuals have a right to privacy. As filmmakers you also have the right to freedom of expression. Balancing these two rights is at the heart of understanding privacy law.

There are multiple types of privacy claims. Examples of such claims are: public disclosure of private facts; false light invasion of privacy (i.e. portraying someone in a false light); intrusion into private affairs; and misappropriation of one's name or likeness. You should be aware that the disclosure of confidential information is a criminal offence, unless justified in the public interest.

In most cases, the act of filming someone is an infringement of their privacy; Brazilian law grants strong protection to individuals over the use of their image. If you film someone in their home that is almost certainly likely to infringe privacy. Even in a public place, if you film someone engaged in a private act, that may also infringe privacy. Content related to a person's sexual habits are very likely to be an invasion of privacy and content related to their innermost thoughts and private life (e.g., illness, diaries, affectionate letters, conversations with family members) requires a very strong public interest in the content or else must already have been published by the persons themselves.

When contributors agree to appear in your film and sign a release form they are in effect consenting to have their privacy infringed (by the act of filming them). When consent has not been given, you could be infringing that person's right to privacy.

Whenever film-makers infringe individuals' privacy rights, this must be warranted - either by having the individual's consent, or because it is in the public interest.

If you infringe privacy, this may lead to you being sued. As with other areas of the law, if you are unsuccessful, this may lead to the court ordering that you pay money damages (which can be quite substantial) and imposing an injunction against your film, preventing you from showing it. Privacy law is an area of law where injunctions are common and in extreme circumstances could lead to your film sitting on a shelf for long periods of time.

Secret Filming is the most obvious example of where privacy rights are infringed. In some cases this can be justified by the public interest. If you are considering secret filming, it is very important that you seek expert legal advice before you carry it out. Please also see the earlier section on Secret Filming for more general information.

Exceptions to copyright

Underlying rights in third party copyright works should normally be cleared/licensed.

You need to be aware that unlike in the US or UK, Brazilian law does not recognize the concepts of 'fair use' or 'fair dealing'. Instead, the law lists several limitations on the rights of the authors, which can be relied upon if you are challenged (including in litigation). This list includes the following:

• the reproduction of a news article, naming the author;
• the reproductions of speeches given at a public event;
• the quotation of a passage for the purpose of criticism or debate, naming the author;
• the reproduction of short excerpts provided that it does not adversely affect the normal exploitation of the work or causes harm to the interests of the authors;
• paraphrases and parodies, so long as they are not true reproductions nor discredit the original work.

Any copyrighted works that are on permanent display in public places may be freely filmed.

If you are considering relying on these exceptions, you should seek advice from a suitably qualified lawyer.

Suggested Team Discussion Points:

3.7 Legal Security Resources

Emergency legal assistance to journalists/ filmmakers

The following are the most prominent of the organizations that provide emergency assistance to journalists:

Global

• The Committee to Protect Journalists provides on-the-ground advocacy and rapid response support to journalists who are injured, imprisoned, or forced to flee because of their work: https://cpj.org/emergency-response/how-to-get-help.php
• The International Federation of Journalists' Safety Fund is a lifeline for journalists in need or under threat, and can provide assistance to help pay for lawyers: https://www.ifj.org/donate.html
• The International Women's Media Foundation has an Emergency Fund through which they provide women journalists with a lifeline of support in times of crisis, including to provide legal aid: https://www.iwmf.org/programs/emergency-fund/
• The Assistance Desk of Reporters Without Borders (RSF) provides financial and administrative assistance to journalists who have been the victims of reprisals because of their reporting, including to pay their legal fees: https://rsf.org/en/individual-support
• The Qatar-based Doha Center for Media Freedom can provide funding to help journalists find and pay for lawyers: https://www.dc4mf.org/en/programmes/assistance/advocacy/

USA /CANADA

• The US Reporters Committee for Freedom of the Press provides free legal representation and other legal resources to protect the rights of journalists: https://www.rcfp.org/what-we-do/
• The Cardozo Indie Film Clinic provides free legal services to filmmakers producing independent, documentary and student films and to artists providing services in independent and documentary film: https://cardozo.yu.edu/clinics-professional-skills/clinics/indie-film-clinic
• Volunteer Lawyers for the Arts provides access to dedicated legal representation and focused education programs for artists including filmmakers: https://vlany.org/
• The US Society of Professional Journalists has a Legal Defense Fund that can be used to provide journalists with legal or direct financial assistance: https://www.spj.org/ldf.asp
• The US-based Press Freedom Defense Fund provides essential legal support for journalists who are targeted by powerful figures because they have tried to bring to light information that is in the public interest and necessary for a functioning democracy: https://www.pressfreedomdefensefund.org/
• The Canadian Journalists for Free Expression's Journalists in Distress program provides humanitarian assistance to journalists around the world whose lives and well-being are threatened because of their work, and can help pay for legal fees: https://www.cjfe.org/journalists_in_distress_fund
• Based in Canada and established by a journalist who was imprisoned in Egypt, the Fahmy Foundation provides advocacy and financial assistance for journalists at risk, including for legal defence: http://www.fahmyfoundation.org/resources-advocacy.html

UK

• Headquartered in London but partnered with specialist media lawyers around the world, the Media Legal Defence Initiative can help you find and pay for a lawyer if you are being sued or if you have been attacked and need a lawyer: https://www.mediadefence.org/get-help
• The UK-based Rory Peck Trust provides grants to freelance journalists and their families in crisis, including to pay for legal costs: https://rorypecktrust.org/freelance-assistance/Assistance-Grants

Europe

• The Netherlands-based organization, Free Press Unlimited, runs a legal defence fund that provides support to journalists who face prosecution or imprisonment and who are unable to afford a lawyer or trial costs: https://www.freepressunlimited.org/en/safety-for-journalists/legal-defense-fund-for-journalists
• The Danish organization, International Media Support, runs a Safety Fund which provides immediate support for journalists who are victimised as a direct result of their work, including to pay for lawyers: https://www.mediasupport.org/what-we-do/safety-for-journalists/#safety-fund
• The Germany-based organization, Journalists help Journalists, provides emergency assistance to journalists in need, including for legal defence: http://journalistenhelfen.org/english/
• The Russia-based Mass Media Defence Centre provides legal assistance to journalists at risk: https://mmdc.ru/

And here are some of the most prominent international human rights defender organisations who could help with legal assistance:

• Frontline Defenders provides rapid and practical financial support including to help pay for legal fees for human rights defenders at risk: https://www.frontlinedefenders.org/en/programme/protection-grants
• Freedom House can provide emergency assistance to human rights defenders, including providing funding for legal defence: https://freedomhouse.org/program/emergency-assistance-programs
• FIDH, the international Federation for the Protection of Human Rights, has an emergency fund for Human Rights Defenders at risk through which it can provide support for legal assistance: https://www.fidh.org/en/issues/human-rights-defenders/financial-support/grant-application-for-human-rights-defenders-at-risk
• The French organization, Agir Ensemble pour les Droits de l'Homme, runs an emergency fund for human rights defenders at risk, including to pay for lawyers: http://www.aedh.org/en/home/what-we-do/emergency-fund-for-human-rights-defenders The Urgent Action Fund for Women's Human Rights provides emergency assistance to women human rights defenders at risk, including for legal defence: https://urgentactionfund.org/apply-for-a-grant/
• The Euro-Mediterranean Human Rights Foundation provides emergency grants to human rights defenders at risk, including to pay for legal defence: http://emhrf.org/urgent-grants/
• The East and Horn of Africa Human Rights Defenders Project provides emergency protection to human rights defenders in the region who are at risk, including through finding and paying for lawyers: https://www.defenddefenders.org/get-help/
• The World Organisation Against Torture provides emergency support to human rights defenders at risk, including for legal defence: http://www.omct.org/human-rights-defenders/financial-support/
• The women's rights organisation MADRE provides Crisis Response for Human Rights Defenders, funding emergency legal aid to human rights defenders under threat: https://www.madre.org/grantmaking

Pro bono "clearing houses" include:

• Cardozo Law has an Indie Film Clinic in NY where you can apply for free help, supported by Laurie M. Tisch Illumination Fund.
• i-Probono, an organization works worldwide but has particular strengths in South Asia connecting individuals and civil society organizations with lawyers. They have a track record of providing journalists and documentary filmmakers with legal defence: https://www.i-probono.com/about-us
• The International Senior Lawyers Project, which has a specialist media lawyers program: http://islp.org/
• The Global Network for Public Interest Law, PILNet, which has a global pro bono lawyers clearinghouse as well as country-specific programs in Hungary, Russia and China: https://www.pilnet.org/public-interest-law/contact-public-interest-law-institute.html
• TrustLaw, a global pro bono law program run by the Thomson Reuters Foundation: http://www.trust.org/trustlaw/

Legal Guides

The Law Offices of Mark Litwak and Associates: A Basic E&O Checklist

Indiewire - A Guide to E&O Law

Desktop Documentaries - Guide to Different Types of Insurance

Rory Peck Trust - Insurance for Journalists Guide

Channel 4 - Media Law Book

Media Defence - Manual on EU Defamation Law

Fair Use, Free Speech & Intellectual Property - CMSI guide

Mapping the Documentary-Journalism Landscape - Jonathan B. Murray Center for Documentary Journalism

Reporters Committee for the Freedom of the Press (US)

Legal Blogs

Penn Law - Docs & The Law Blog

Zoom In - Legal Online Magazine for Film and TV (Abbas Media Law)

Legal Case Studies

Filmmaker of CRUDE has footage subpoenaed by Chevron

The subject of QUEEN OF VERSAILLES sues for defamation
Gun rights group sues Katie Couric and filmmakers for defamation
Lily Tomlin claims damages against Nick Broomfield

3.8 Legal Training Resources for Filmmakers

Legal Training

US law schools like Yale and Penn are increasingly teaching courses on visual media and documentary to law students. And MA documentary courses usually include a legal component.

The Media Law Resource Center hold occasional trainings for journalists:

Media Law Resource Center one day training

If you know of any short legal courses or workshops for documentary filmmakers, please let us know: contribute@safeandsecure.film

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EDITION 2.2 - OCTOBER 2019