What’s in a film?
(Take 1)

In the first of a series of pieces, Alex Wade from Reviewed and Cleared looks behind the lens – and finds quite a lot of law.

What’s in a film?

If the person answering this question says ‘not much – someone points a camera and that’s it’ – chances are, for this individual, Apocalypse Now is not a brilliant reimagining of Joseph Conard’s novella Heart of Darkness but a boring, if noisy, search for an obese person who lives up a river and chops cows’ heads off.

Or, more precisely, Die Hard with a Vengeance does not reference Pulp Fiction. No, not a bit of it. It is merely a coincidence when John McClane, played by Bruce Willis, tells Samuel L Jackson’s hot-headed Zeus Carver that he spent his suspension from the police “smokin’ cigarettes and watchin’ Captain Kangaroo”. That this is a quote from Flowers on the Wall, which Willis sings along to in Pulp Fiction, which also starred Jackson, is a complete accident.

Not so fast. Musicians – or record labels, at least – are hot on their rights. Was it OK to quote from The Statler Brothers’ song? It was just a few words – surely it was fine? What about Conrad and his rights? He’s dead! But what of his estate? Did the film’s director, Francis Ford Coppola, need permission before he could swap Conrad’s Congo for the US conflict with Vietnam? What if someone came along and decided to make the film again, but this time with Marlon Brando’s Colonel Kurtz a little more mobile – an active recruiter of acolytes, complete with a business card (‘Cow to be Killed? Call Kurtz’) and phone number? What could possibly go wrong?

You see where I’m going. A vast array of work goes into creating a film – from production, writing and finance at the outset to casting, camerawork, cinematography, sound, acting, wardrobe, editing and direction. And then there’s something else.

The law. It’s there, underpinning just about every scene. Whether a film is being streamed, shown on SnapChat, Facebook, YouTube, Twitter, Vimeo, some other digital platform, in a cinema or even on good old-fashioned TV, thought needs to be given to the law. Specifically, the kinds of law that can come back and bite.

If you’re a filmmaker, you’ll know there’s more to a film than pointing a camera. But it pays to have a working knowledge of how the law intersects with the film you want to make.

Here’s a quick overview of Defamation, Privacy and Contempt of Court, from a UK law perspective. I’ll look at other areas in the coming weeks.

Defamation

I’m aware of a lawyer in a large, multinational practice who once advised a client, upset over the content of a TV news broadcast, that he could sue for slander. Wrong. We hear people speak on TV but what they’re saying is treated as publication in permanent form. Slander applies to verbal statements that are transient; libel is the cause of action for what’s broadcast. Together, libel and slander constitute the tort (from the French – it means ‘wrong’) of defamation.

And the stakes, in libel, are high. Damages for a very serious allegation – that someone is a child abuser, or murderer – would likely come in at £200,000 but the UK’s ‘costs follow the event’ system means that the loser pays all: the lawyers’ fees on top can easily run into six or seven figures. This is bankruptcy and loss of house territory. So, when prepping for your next recording, ask yourself:

• Are you making allegations that are statements of fact about an identifiable individual or company?
• Are those allegations likely to cause ‘serious harm’?
• Can you prove them?

And, if in doubt, don’t go to a lawyer who knows nothing about media law.

Privacy

You’re making a documentary on skin conditions. Someone tells you about John, who had a peculiar rash that lasted for seven years and then disappeared. The same kind person sends you photographs of John. They’re startling and would work nicely as inserts in your film.

But does John want his skin rash broadcast to everyone and anyone?

Privacy looms as large as defamation because, thanks to the Human Rights Act, everyone has a legal right to respect for their private and family life, home and correspondence. You’ll need permission to show:

• Things that take place inside the home – sex, sexuality, mental and physical health, familial interactions;
• Things that take place on private property – this can include pubs, parties, restaurants and nightclubs;
• Situations where a person has ‘a reasonable expectation of privacy’. These always include matters pertaining to a person’s health, so you need to find John and ask for his consent before showing those photos.

Contempt of Court

This time, your documentary is about knife crime outside schools in London. There’s a strong public interest in the topic, but, by definition, it could be tricky – and not just because of defamation.

What if you obtain an interview with a gang member who’s seen the light – who wants to come clean and set the record straight? It’s great viewing but there’s just one thing: he’s been charged under section 142 of the Legal Aid Sentencing and Punishing of Offenders Act 2012, which makes it an offence to carry a knife in a public place or school.

The gang member’s admission to carrying knives and wanting to go straight might be morally laudable but publishing it ahead of the trial would be a contempt of court. It would create a substantial risk of serious prejudice (to the jury’s deliberations).

So, to avoid falling foul of the contempt laws – which are designed to ensure that a jury views an accused’s alleged misdeeds solely on the facts, uninfluenced by extraneous matters – ask yourself: are you discussing or featuring somebody that has been arrested or charged with an offence?

Once proceedings are ‘active’ – meaning that there has been an arrest, or charge, or the issue of a warrant – the provisions of the Contempt of Court Act kick in. You have to be very cautious about commenting on the accused’s alleged offence – and you can be guilty of contempt regardless of what you intended in your broadcast.

What’s in a film?

With luck, neither libel nor an infringement of privacy. And certainly not a contempt of court, for which the sanction can be imprisonment.

And, when you’re making Call Kurtz, not a phone number like the one used in Netflix’s wonderful hit series Squid Game. The card given to potential participants in Squid Game featured a phone number that – ooops! – belonged to a real person, who received thousands of phone calls. Anyone for data protection law? Misrepresentation? Libel? Privacy?

And a payout?

Alex Wade is the CEO of Reviewed and Cleared, a specialist pre-broadcast and pre-publication law firm. He and colleagues will be contributing to Performance in the coming weeks on legal issues in filmmaking. Contact Alex via alex@reviewedandcleared.com