Legals

From 4docs

It is impossible to overstate how important it is to think about the legal aspects of making your film BEFORE you start shooting. You never know who will want to screen your film or where so it's really good to be prepared (ideally in all territories, in perpetuity and for all media - but more of that later!).

There are a set rules that govern factual filmmaking in the UK. Some of the rules are matters of law — such as contempt of court or libel and if you break them you could end up in court. The rest are the rules drawn up by bodies such as the BBC and Ofcom which govern the UK broadcasters. If they show a film which unfairly infringes a person’s privacy for example then the broadcaster will be disciplined and you, the filmmaker, will be pretty unpopular. As the filmmaker of a film you are responsible for knowing what the legal and compliance rules are and making sure your film adheres to them. In extreme cases, where filmmakers have knowingly broken these rules and deceived the broadcaster about doing so, those responsible have been banned from working for individual broadcasters.

Contents 1 Consents and Permissions 2 Products and Logos 3 Libel 4 Fairness and Right to Reply 5 Paying People and Paying Criminals 6 Breaking the Law to make Your Film 7 Advocating Law Breaking in Your Film 8 Secret Filming 9 Faking and Setting Up 10 Avoiding Hoaxes 11 Contempt of Court

Consents and Permissions

This is your most important compliance responsibility.

Firstly there are the people who are going to appear in the film. The Golden Rule: get consents agreed at the time of filming.

Consents can be given in Release Forms and/or on camera. You need to get consent from anyone who either gives you an interview or who otherwise speaks on camera. It's worth having a paragraph on your release form stating the general objective of the film to show informed consent. You don’t need a release form for people on the street as long as your camera was not concealed. You will need release forms for people who are identifiable in sensitive places even if they are not speaking eg) hospital waiting rooms, gay clubs, law court corridors.

You must be sure that each person has given their ‘informed consent’. This means not only that you have been honest about what the film is about but also that you are sure they understand English sufficiently and are of sound mind. Someone who is drunk, mentally unwell or in a state of extreme distress could be argued not to have been able to give informed consent. Children under 16 must have a release form signed by a parent. People 17 and older are generally felt to be sufficiently adult to sign their own forms. Bear in mind that young people may lie about their age to you in order to avoid telling their parents, so double check their date of birth.

It is possible to use an ‘on camera’ release — where you record instructing the interviewee and getting their agreement on film but be warned that whilst a UK broadcaster may accept this, US broadcasters always ask for signed release forms. However think about using an on camera release in addition to the release form if you think you are dealing with a difficult interviewee — someone who might later claim that the signature is a forgery or that it was not properly explained.

LOCCATIONS. You need permissions to shoot anywhere that isn’t either a) the street or b) a property you own yourself. If you want to shoot on the tube, in a hospital, in a club or bar etc remember to leave enough time for your filming request to be processed. These sorts of locations will ask that you put up signs to say that you are filming and that you get release forms for people who appear in shot. You should keep a signed letter of agreement from any location you film in.

And it isn't only people and places. Music, text, websites, shots of advertising billboards, film clips, news footage, news paper-clippings and even your mates photographs can't be used in films without permission. That doesn't mean you'll always have to pay for rights but it does mean checking who owns them, and getting a formal permission from them.

If you do not clear Copyright, the copyright owner can claim that you and anyone screening the film are breaking the law by stealing their rights.

Products and Logos

If you are going to have your film shown on television, you need to be careful about what is called ‘undue prominence’. This means, did you give any one company or product undue screen time. If you are making a film about McDonalds then obviously you are editorially justified in including its imagery throughout. If you are making a film about marketing, make sure you include lots of different logos so that no one company is unfairly featured. However if your film is about education but the key interviewee is leaning against a Coke machine the shot will probably have to be cropped or the Coke logo pixelated. Always look carefully at the shot that is going to last for a long time on screen — is that a Microsoft poster in the background? Also watch out for logos on T-shirts and cabs. Vox pops or short pieces with people in clothes with logos are fine — but not your presenter or key interviewee.

Libel

The UK has very tough libel laws — if someone sues, they may sue the filmmaker, any interviewees in your film who libelled them plus the broadcaster or film festival who shows your film. In court the onus will be on you to prove that you are correct. It is no defence to say that the libel was made in error. If you are dealing with a potentially contentious issue — racism, neglect in a care home, murder then make sure you have a media lawyer on board to advise you and follow the rules of good journalism — fact check and double check people’s statements and stories. If you cannot prove your allegations think twice about including them.

There is one caveat to this — if someone is already dead, their relatives cannot sue for libel on their behalf. However if your film paints a very unfavourable and possible one-sided portrait of someone with a financial estate eg) an author or filmmaker you could be sued by their estate on grounds of damaged reputation and therefore lost earnings.

Accidental libel is a common cause of problems. You have to be very careful what you are inferring with your combination of interview, commentary and picture. A shot of a busy street with a few identifiable people walking past the camera next to a commentary line that say "two out of ten people in the UK use illegal drugs" is an accidental libel unless you can prove that those people are drug users.

As the filmmaker you need to be able to spot statements in your film that could potentially be defamatory or libellous, because they may need to be removed in order to legally screen the film and avoid court proceedings.

Here are some examples of defamatory statements:

• Individual X (who may or may not be named explicitly) has committed some criminal or seriously anti-social act.
• X is a liar or dishonest
• X has committed a fraudulent act
• X took a bribe from, X tried to bribe Y
• X stole from Y
• X is violent or abusive
• X is a drug dealer, a drug user or simply involved in drugs in some way
• X is a hypocrite
• X is bankrupt, near bankrupt or has serious financial problems
• X owes money which he can't or won't pay back
• X sexually abused or harassed Y
• X is a paedophile
• X is cheating on his wife, her husband, or his/her partner
• X is gay (when X is married or claims not to be gay)
• X is very sexually promiscuous
• X has had extreme plastic surgery
• X's activities are putting others at risk or in danger
• Z's products are dangerous or unhealthy
• Z's products are substandard or poor quality
• Z's activities are damaging the environment
• Z exploits its workers in some way

It is worth pointing out that defamatory statements can be distinguished from simple abusive ones. It would generally not be defamatory to say something like "I hate X, he's a wanker", but it would be defamatory to say "I hate X, he's a wanker, a habitual liar, he stole my bicycle and beats up his kids". Someone hearing the former statement would conclude that you didn't like X but it wouldn't necessarily make them think less of X themselves. The latter statements would make people think less of him and are therefore defamatory.

The main defense to libel action is 'justification'. YOU have to be able to prove that the defamatory allegation is true rather than X having to prove that it isn't.

Fairness and Right to Reply

You are obliged to be fair to both sides of a story (or more if the issue is more complicated). What this means in practice is offering a right to reply within the film to people who have accusations made against them. If you film someone making an accusation about the way they were treated by a corporation, a member of their own family, a politician or a neighbour you must contact them and ask for their side of the story. It is not only good journalism to fact check the accusation with them but it is required for ‘fairness’ that you offer to include their reply if they wish to give one. Even if they decline you should include any other factors you are aware of, even if they weaken the central argument of your contributor.

Paying People and Paying Criminals

Most people who appear in documentaries are not paid to do so. You may decide to pay people (if you are making a commissioned film you should run this by your broadcaster) but payments don’t tend to be very high, even for celebrities. Expert interviewees such as doctors or historians are commonly paid about £200 if at all for an interview. Think twice before paying an ‘ordinary’ interviewee. If a person’s only motivation for appearing in a film is money it is likely that their contribution will be a compromise. Could it later be made to look like you paid them to say or do something they would not otherwise have said or done?

British TV broadcasters are forbidden from paying criminals to talk about their criminal activities, however long in the past, unless there is an overwhelming public interest e.g. to reveal police corruption. If you are working on an idea you want to sell to a broadcaster make sure you haven’t already promised your interviewee something you cannot deliver. Also remember that the law courts may have a different idea of what constitutes a criminal to you — a convicted graffiti artist or someone charged with growing cannabis for example.

Breaking the Law to make Your Film

You can’t do it. You can film law breaking — drug taking, trespass, soliciting etc but you cannot encourage the contributors to break the law for the camera. You must be able to justify the footage on the grounds that it would have occurred whether or not you were there to film it. You must not in anyway contribute to the law breaking. For example, if you give contributors a lift in your car to get to a dealer or lend them money to buy drugs you may be considered to be aiding and abetting criminal activity. And whatever they do, you cannot take part. If they trespass, you can film this only from the other side of the private property sign.

If you film people breaking the law there is a chance that when your film is distributed the police will investigate it. They may ask for your contacts and for all the footage you shot in evidence. You cannot refuse to help them. Do not promise contributors that you will protect them if the police come knocking because you will not be able to — they need to make a decision on whether they wish to take the risk and be filmed (in reality it is rare for the police to investigate).

Advocating Law Breaking in Your Film

The final film cannot encourage or excuse law breaking. You may want to hear from a sex worker why she solicits but this must be her viewpoint and the film must remain balanced. Likewise we may hear from someone why they think everyone should smoke grass but the film must be clear that this is still an illegal act with penalties for those who get caught. In addition, you cannot show in your film trade secrets of how to commit a crime. This includes showing people every step of drug preparation or every step of how to break into a car.

Secret Filming

Factual television is governed by very different rules from entertainment. Don’t think that because entertainment shows are constantly secretly filming people or catching them by surprise that you can use the same techniques in a documentary. You are obliged to honour the privacy of individuals and not door stop them or secretly film them without exceptional reason. If you are making a commissioned documentary for a UK broadcaster you will have to get permission to door stop or secretly film — based on an overwhelming public right to know. If you are not making a commissioned documentary and use these techniques you will probably either need release forms for those people you filmed or be able to strongly justify such footage.

Faking and Setting Up

It can seem like a fine line between documentary licence and downright misleading footage. We have all seen ‘observational’ footage of people waking up in the morning and turning the alarm clock off and we don’t imagine that the crew really waited all night beside the bed to capture that moment. However you should think hard about sequences which, whilst presented as observational footage, are in fact scenes which the filmmaker has wholly orchestrated. If you wish to include scenes like this you need to be honest with the audience and either show that this is the case, by including the directors voice behind camera or adding in commentary ‘I asked X to go and confront their neighbour and I came along to film what happened’. Observational footage (unlike reality TV) makes a claim to the audience that everything it captures reflects life as it is normally lived by the contributor. If you are going to instigate the action in any significant way you need to consider whether you are breaking this contract with the audience. It is a common source of complaint from contributors that a documentary misrepresented them because they were seen to do things which they would not normally have done but only did on the insistence or suggestion of the director.

Avoiding Hoaxes

In recent years there have been a number of cases where contributors to documentaries deliberately trick or hoax the filmmaker. They may claim to be people they are not, use false names or simply give a wholly dishonest interview. Ultimately you are responsible for verifying what they say. Use your journalistic instincts. Ask to see a passport to check the name they have given you. Fact check what people tell you. It is always worth asking yourself ‘what if this isn’t true’ and ‘what would verify their statement’. If you remain even slightly sceptical you should reflect this in your film and let the audience decide for example using commentary that says ‘this is what X claimed to have seen but no one else was able to confirm it’.

Contempt of Court

Contempt of Court is when you risk prejudicing the jury in a case. If you have made a film with contributors who subsequently get in trouble with the law, it may prevent your film from being shown until they have been to court and the case settled. The principle is that no documentaries should be shown which the jury might watch and might influence their judgement of the case. What this means is that you should keep contact details for your contributors and be prepared to get in touch to check they are not awaiting any court cases at the time that your film will be shown to an audience.