Borat (2006) and a Filmmaker's Responsibility to the People Depicted in a Film
What is a filmmaker’s responsibility to their subjects?
Is the filmmaker’s responsibility simply to meet the requirements of the law (which can often be met by having the people who appear in the film sign a release)? In principle, a signed release can allow the filmmaker to injure that person without fear of a lawsuit. Or is the filmmaker’s duty one that surpasses the legal requirements? In other words, is there an ethical duty to your subjects when you make a film?
Alan Rosenthal’s New Challenges for Documentary contains a section devoted to Documentary Ethics. Rosenthal writes “The problem can be fairly simply framed: Filmmakers use and expose people’s lives. This exploitation is often done for the best of motives, but it occasionally brings unforeseen and dire consequences into the lives of filmed subjects. So the basic question is, what is the duty of care, or responsibility, owed by filmmakers to those they film?” (Rosenthal, 246)
Notice, Rosenthal isn’t asking what is legally permissible – or how a filmmaker can protect herself from a lawsuit. Rosenthal is asking whether a filmmaker has an ethical duty to the film’s subjects. And, if so, what is that duty?
Some filmmakers answer Rosenthal’s question through “informed consent.” This is when the filmmaker informs the subject of how he or she will be depicted in the film, and how this may affect the subject’s life. Consent obtained by deception, coercion, or from someone who is physically or mentally not competent to consent is not considered “informed consent.”
What about Borat (2006)?
Most of what has been written about the rights of the people who appeared in Borat (2006) concerns issues of legal liability. And, although the makers of Borat have been sued (and they’ve had to pay lawyers to defend against those claims), no one claiming they were injured by the film has (as yet) recovered any money from the producers of Borat.
So the makers of Borat (2006) have found a way to protect themselves from legal liability (more on that below). But what about the ethical responsibility of the makers of Borat?
Among those duped by Sacha Baron Cohen for his film Borat were the citizens of the Romanian village of Glod, a Roma town whose name literally means “mud.” In the real-life Glod there is no running water, although they do have cable television. It was only while watching subtitled excerpts from the finished film that the citizens of Glod realized they’d been made to stand in for a village in Kazakhstan, all the while being mocked and ridiculed and portrayed as backward criminals and idiots.
The results of this deception are documented in a film, Carmen Meets Borat (2009), by Dutch director Mercedes Stalenhoef. Carmen Meets Borat (2009) focuses on Ionela Carmen Ciorobea, a 17-year-old Glod resident whose dreams of moving to Spain for a better life were allegedly derailed by the way her village was depicted in Borat (2006).
Carmen Meets Borat director Mercedes Stalenhoef sides with the citizens of Glod: “These people were not informed of what they were participating in…He [Cohen] told them, ‘It’s a documentary,’ and that’s what they thought. And then it was a comedy, and they were called nasty things. I think if you make a film, you should inform people so they can decide for themselves if they want to participate, and how much money they want for it.…They [the villagers] got not so much money [from Cohen’s crew]—like, three euros.”
This problem (ethical duty to participants in a film) is not new. Frederick Wiseman’s 1968 film High School, which chronicles the interactions between teachers and students in urban Philadelphia also left many participants feeling abused. This despite the fact that they had given consent to be filmed – and even initially approved of the film. According to Wiseman, he showed the finished film to the high school’s teachers and staff, and they were thrilled with it. And then, after the film was released, and reviews were written, many participants changed their minds.
The ethical problems that a filmmaker faces in making a documentary are not answered simply by having the subjects sign a release. Whether filmmakers are ethically responsible when their subjects feel humiliated or ill-used is a matter of debate. The legal questions are a little easier to navigate.
The contract that on-screen participants in a film are asked to sign, known as a "release," typically includes language that protects a filmmaker from legal claims. Filmmakers get releases to reduce the chances that they will be sued. When a participant in a film doesn't sign a release, the filmmaker needs to understand their exposure.
The American system of law sets out various rights that an individual can enforce when they are injured, even when those injuries are not physical. For example, you can sue in civil court when someone injures your reputation or invades your privacy. Accordingly, in addition to the ethical problems (that no court can enforce), the villagers in Borat (2006) might have a variety of LEGAL claims against the filmmakers.
Perhaps the strongest legal claim against Borat (2006) would be for invasion of privacy, on the theory that the villagers were portrayed in a false light. False light invasion of privacy occurs when an individual is falsely portrayed in a highly offensive manner. For example, posting a photograph of a man who has never committed a crime on the "America's Most Wanted" website would be false light invasion of privacy.
In addition to false light invasion of privacy, the citizens of Glod could argue that they were defamed. Defamation occurs when information is published about a person that creates a false impression and injures the person's reputation. Defamation is often divided into two categories:
SLANDER, which is an oral comment made to others, and
LIBEL, which is a fixed statement, whether printed, broadcast or published electronically. In the case of a film, because it is fixed in a tangible medium, the claim would be libel.
Any citizens of Glod (assuming the producers of Borat had neglected to get a signed release) pursuing a claim of libel would have to prove that there were false statements made about them. For example, the woman depicted as a "prostitute" in Glod would have to prove she wasn't a prostitute to succeed with a defamation claim. Further, to win in defamation, the claimant must prove the injury to their reputation. In American courts, "injury to reputation" usually means the party who is claiming defamation must show they’ve lost money because of the false statement.
If the information that is published is true, there is no defamation. Or, as some courts have stated, the truth is an absolute defense to defamation. In our hypothetical case, the producers of Borat could defeat a claim of defamation if they could prove that the claimant had actually been a prostitute. Literal truth in every element is not required, provided that the statement is substantially true. This is why many people don’t sue in defamation. If you claim you were defamed, it opens you up to claims that the statement was "substantially true." For example, the producers of Borat could argue that it was "substantially true" that the woman depicted as a prostitute was a prostitute, because on one occasion she had sex with a man after he bought her something.
In the case of the citizen’s of Glod, there are probably statements made in Borat that are factually untrue. But note, participation in a performance almost always involves creating a false persona. If the townspeople of Glod signed releases which gave the filmmakers permission to depict them as characters in a film - it is unlikely any court would find that an actor in the film (even one who suffered an economic loss because they were depicted in ways that were not true) could recover for defamation or invasion of privacy.
Moviemakers who are creating situations where an individual might have a false light claim or a claim in defamation, are well-advised to obtain broad releases.
A release can provide very strong legal protection. A carefully worded release can protect the filmmakers from legal claims, as it apparently has for the producers and distributors of Borat (2006).
But a release doesn’t answer the ethical problem – your duty to your fellow man when making a film – especially if deception is involved.
Rosenthal, Alan (ed.), New Challenges for Documentary, University of California, Berkeley 1988.