Section 3.
Legal Security

Just another reminder that at launch, this Handbook is focused on US and UK based filmmakers whose work will primarily be distributed in the US and Europe. It is absolutely our ambition to ultimately make this a resource for filmmakers everywhere. Given the size of that challenge, we have started with the US and UK and will rely on the input of international documentary organisations and independent filmmakers to go further. If you can help us - 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 that you find yourself far up Shit Creek with fewer paddles than is optimal.

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

We encourage all film teams to think about their legal needs early on 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 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.

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 as dependent on need - be it a media lawyer to help with copyright or defamation, 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 a dynamic with this potentially key member of your team.

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

Put realistic legal costs (between $5-10K depending on the legal complexity of the subject matter) into your budget from the beginning so that your funders and partners can more easily acknowledge your needs and help to solve the problem with you. Some lawyers will give early advice and defer payment until you raise the bulk of your budget which can prevent you waiting too late for crucial advice.

If your film has public interest merit, you may find that a lawyer is willing to take you on pro-bono. There is a well established pro-bono practice in the US legal system. The American Bar Association's ethical rules recommend that lawyers contribute at least fifty hours of pro bono service per year. They have traditionally done such work for charities but increasingly there is interest from lawyers in getting involved in public service documentaries. Cardozo Law has an Indie Film Clinic in NY where you can apply for free help, supported by Laurie M. Tisch Illumination Fund.

In Europe there is not such a tradition of lawyers doing pro bono work but many do so 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.

Suggested Team Discussion Points:

These questions have been designed to provoke team conversation about the 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.
Do you need early legal advice?
Can you afford it or do you have other means of sourcing pro-bono help?
Do you need legal help in more than one country - eg both where you are filming and where the production is based?

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 and is not a substitute for engaging a suitably qualified lawyer at an early stage in production. The main areas of the law filmmakers need to understand are; defamation, privacy, contempt and copyright.

Defamation - Libel and Slander

Defamation law exists in the UK, the US, and elsewhere, to protect the reputation of a person (or company) from defamatory statements made about him/her to a third party without lawful justification. The requirements for a defamation claim vary somewhat from jurisdiction to jurisdiction (in the US, each state has its own law of defamation). However 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 the UK because of the strength of the libel laws.

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.

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;

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 the UK, in defamation proceedings, the "burden of proof" is on the filmmaker (as the defendant) i.e. if sued for defamation, you would have 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 found 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 also ethical dimensions of filmmaking that go hand in hand with accuracy.

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

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), or a fair comment or fair report privilege (US).

The following are some common assumptions which are not defences to defamation in either the US or the UK:

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

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.

Evidence - 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 to consider, along with your lawyers, what evidence would be available to you if you are sued. As noted above, newspaper cuttings etc are not evidence, in that they are not proof of the truth of their content.

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 the allegations, need very careful thought. Expert legal advice should always be sought.

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 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

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 must prove that the statement was false in order to recover for defamation. 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 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 - can be brought against a documentary. In many jurisdictions, these lawsuits have been made illegal on the grounds that they impede freedom of speech or can be counteracted with an Anti-SLAPP law, 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 she 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 indeed in most other legal jurisdictions around the world, 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.

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 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 engage privacy. Even in a public place, if you film someone engaged in a private act, that may also engage 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 in some other way, e.g., because it is in the public interest (UK) 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. Under UK law, 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.

Even if you are a filmmaker based outside the UK, 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 UK's main media regulator's code - 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.

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)

In the UK, 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 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 court proceedings. Breaching these laws is also a criminal offence.

Contempt rules in the UK are more stringent that 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.

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:

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 must familiarise yourself with these resources and seek advice from a suitably qualified lawyer. Note that fair dealing is unlikely to be suitable where your film is for worldwide distribution.

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.

We know that legal help is expensive, so we have been developing a network of pro-bono legal assistance that may be of benefit. If you would like to explore this option, your funders may be able to help you. Otherwise you can try approaching legal firms, many are supporting of the kind of work that independent filmmaker do.

Suggested Team Discussion Points:

Is there a risk of a defamation/ libel accusation being brought?
Have you had your work fact checked to make sure you have sufficient evidence?
Does any of our work infringe on the privacy of individuals - do you have an adequate legally recognised justification?
Are you keeping track of copyrighted materials and have a plan to either clear it or investigate Fair Dealing / Fair Use?
Do you need legal help with contracts for contributors and crew?

3.3 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 filmfilm, 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, as 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

What are the differences between the different E&O options your broker has offered?
Do you need to seek external help from your lawyer or broker to ensure that you can get E&O in time for distribution at a reasonable price?

3.4 Legal Risk Resources

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

Penn Law - Docs & The Law Blog

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

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

3.5 Legal Training Resources for Filmmakers

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 1.1 - OCTOBER 2017