Making Dangerous Docs: What We Know So Far

by Patricia Aufderheide
Image by Ralf/Flickr

Image by Ralf/Flickr

The Center for Media & Social Impact has begun a research project funded by the John D. and Catherine T. MacArthur Foundation on the problems filmmakers face when they tackle deep-pocketed, powerful subjects – whether governmental or corporate, national or international. We are interviewing filmmakers, lawyers, insurers, broadcasters, and investigative journalists to find out how filmmakers can protect themselves when making these “dangerous docs.”

Here’s a preview of what we’ve learned so far.

From Makers, Programmers and Insurers

When filming a dangerous doc, filmmakers often make special efforts to cultivate a relationship with a representative of an opposing view, to ensure that they themselves understand the perspective and represent it accurately. In some cases, they may wait until they have marshaled all their evidence to make contact. Before making claims against the opposition, they make sure the claims are evidence-based, not ad hominem, and that they have ongoing access to that evidence.

Filmmakers are just starting to think about how to protect their data and footage, and many are unsure about available technologies. In general, most try to keep a quiet online presence about the project in production. Standards of record-keeping and fact-checking vary; some filmmakers keep records and even make them public, while others destroy records after release.

Getting errors & omissions insurance hasn’t been a problem for filmmakers making dangerous docs. Even when a previous production has triggered the insurance, insurers will look at the specific case–although their alarm bells go off if they believe the filmmaker has been irresponsible in the past. If trouble has already manifested in the production process of the film being insured, insurers may demand prohibitively high deductibles. War zones and other trouble spots are difficult or impossible to insure in. Subpoena coverage much be purchased separately.

If trouble arises on the media side of things, filmmakers are often ill-prepared to deal with the consequences. Most do not build crisis communications–or indeed any public relations work–into budgets or work plans. For independents, this means diverting resources when smear campaigns happen, and letting media and opponents set the agenda.

From the Law, Lawyers and Law Sites

Thankfully, lawsuits against filmmakers making dangerous docs are rare. Most longform documentary work on controversial, highly charged or investigative topics is executed without claims. Filmmakers who do end up facing litigation have a number of options to pursue.

In some cases, filmmakers may claim reporter’s priviledge, which is recognized within limitations by Federal courts. Some states also have journalistic shield laws. The decisions that filmmakers make throughout their projects can affect whether or not these privileges apply.

Other law suits may fall into the category of “Strategic Lawsuits Against Public Participation,” or SLAPP suits, which are brought against critics to silence them and intimidate them into settlement. Filmmakers facing such suits can protect themselves using anti-SLAPP laws.

These are only interim conclusions. Look out for more results coming soon!

Have you done a “dangerous doc” or investigative film? Have you decided not to do one? What challenges did you face? What would help you in the future? Email das [at] american [dot] edu with your comments and stories.


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