So a written release is worth something after all.

The trial judgment in the legal battle over “The Opposition” shows it’s not that easy to “revoke” consent to be in someone else’s doco, provided you weren’t tricked into it.

In an earlier post I wrote about the injunction granted by the New South Wales Supreme Court against “The Opposition”, director Hollie Fifer’s debut documentary about a land dispute in Papua New Guinea. The film was due to premiere at the Toronto Hot Docs Festival in May 2016. However, before the premiere one of its key participants, Dame Carol Kidu, sought to “revoke” her consent to participate, arguing she had been misled to believe it was only a student film with no commercial release.  On the basis of these claims Dame Kidu got a temporary injunction on some of the footage featuring her. The film screened in Toronto in substantially truncated form as a result of this court order.

The trial judgment, handed down by Rein J on 8 July 2016, lifted this injunction. It is a comprehensive win for Ms Fifer and the other defendants, Media Stockade and Beacon Films.

The decision will come as a relief not only to the defendants but to other filmmakers. The injunction decision was somewhat unprecedented and some of the legal arguments advanced were quite novel in the context. These arguments, had they succeeded at trial, would have presented new challenges for filmmakers obtaining participant consents from persons who are not in a “vulnerable” category (such as being under a mental disability). The plaintiff’s arguments challenged industry practice around:

  • how much a filmmaker has to do to explain a project, when a participant claims not to have read what was sent to them;
  • the legal effect of early discussions between filmmaker and participant;
  • the value of obtaining a signed release;
  • the effect on a consent when the focus of a film project subsequently changes; and
  • whether a participant can “revoke consent” at any time.

While there are still grey areas around the legal “status” of a written release, these issues have been clarified, to some extent, by the court in the trial judgment.

The dispute

As reported earlier, the dispute revolved around the evolution of Ms Fifer’s student film project about Dame Kidu, former opposition leader in the PNG parliament, and her involvement in a land dispute at the Paga Hill settlement. The film began as a student film assignment, but through the course of filming was ultimatley funded for commercial release. The film also changed direction from its original focus on Dame Kidu’s career, towards a broader examination of the political turmoil surrounding Paga Hill. Dame Kidu claimed that she had not understood that the film was to be anything more than a student film, and disagreed with the change of focus. She claimed not to have read correspondence disclosing that the film had secured funding for commercial release, and that Ms Fifer had behaved “unconscionably” and misled her. Ms Fifer and the other defendants maintained that they had not misled Dame Kidu and that the project had evolved in part because Dame Kidu had invited to Ms Fifer to film at a demolition protest at Paga Hill, where Dame Kidu remonstrated with police.

The April “holding pattern” injunction

On the injunction application in April, Slattery J found that Dame Kidu had provided enough preliminary or “prima facie” evidence to ground a temporary injunction before a full trial. However, citing the “immense importance” of freedom of speech to an open society, the court injuncted only part of the documentary, namely the use of certain footage featuring Dame Kidu. His Honour also required Dame Kidu to post security of AUD$250,000 against damages and costs to be assessed for the defendants should she lose the final hearing at trial.

The findings at trial

Dame Kidu had less fortune at the trial. The judge generally favoured the evidence of Ms Fifer. His Honour threw out the somewhat curious claim that an “oral contract” had been formed between Dame Kidu and Ms Fifer at the time of initial discussions about filming. The contract law fundamentals of “consideration”, or exchange of money or other benefit, and of intention to form legal relations, were absent. As his Honour pointed out, if Dame Kidu had revoked her consent before filming had occurred, there would have been no binding contract on which Ms Fifer could rely to force Dame Kidu to participate.

His Honour also dismissed Dame Kidu’s claim to be under a “special disadvantage” which seriously affected her ability to make an informed judgment in her own interests as to whether to participate. Dame Kidu was not in any such special category of vulnerable person. While Rein J accepted that Dame Kidu had a “busy life”, Ms Fifer could not be responsible for her failure to read or comprehend emails. Ms Fifer had “objectively” done enough to explain the project, and had not misled Dame Kidu. Even though the focus of the film had changed, this was not enough to invalidate Dame Kidu’s consent, particularly as the change in direction was partly due to Dame Kidu’s own actions.

While Rein J refrained from making a final determination on the legal status of the standard participant consent Dame Kidu had signed, it was evidence of Dame Kidu’s understanding of the project, and of the scope of her consent to use the footage. Nor did he definitely rule whether, legally speaking, a participant can subsequently “revoke” their consent at will. The release in this case was stated to be “irrevocable” but nothing was made of this in the judgment. From the result, however, the case appears to affirm that participants who change their minds generally can’t simply revoke consent once the interview is done. There would need to be some kind of misleading conduct or other legal breach by the filmmaker, or evidence of a conditional consent permitting withdrawal in some circumstance.

Next steps

Assuming Dame Kidu does not appeal, there will now be a damages and costs hearing to determine how much compensation the defendants are entitled to as a result of the injunction of their film by the plaintiff.

Implications for obtaining releases

The case shows that a consent to participate in a film project, given by a person of full legal capacity on the basis of reasonable and truthful disclosure of the nature of the project, is not generally legally revocable at will after the filming of their contribution has been completed.

The case also affirms the general principle that once an interview has been filmed, the footage is the physical and intellectual property of the filmmaker.  Only in exceptional circumstances would or should a court intervene in the filmmaker’s right to use the footage for the purpose for which it was obtained. This is separate from the question of whether any cause of action arises out of the content of the footage or the way it is ultimately edited or presented by the filmmaker. Both judges made clear that these proceedings were not about the content of the documentary, or whether Dame Kidu agreed or disagreed with its editorial focus.

The case also recognised that film projects can change direction to some extent during production, and after consents have been obtained, due to the natural unfolding of events. This of itself does not invalidate the initial consent. This is consistent with a recognition that filmmakers have editorial control of their projects. While there was no explicit referencing of free speech in the trial decision, this decision implicitly upholds the free speech values referenced in the earlier injunction proceedings.

By refusing to apply protective concepts of “unconscionability” and “special disadvantage” to a plaintiff of full legal capacity, the court appropriately kept the legal position of the parties separate from subjective ethical judgment.

The decision affirms that a written consent to be filmed is not essential, but is simply a form of evidence of the nature and scope of consent. However, it is clear from the case that, in the event of any dispute by a participant, documentation of consent is useful. Written consents are also relied on by investors in the film industry.

So a written release is worth something. It’s evidence of consent to be filmed.

Tips for obtaining releases

When seeking a consent for an interview from a participant for a film project, the nature of the project should be broadly outlined, taking care not to mislead the participant, and emphasizing that editorial control of the project remains with the filmmaker.

If no written release is required and it is not convenient to obtain one, an on camera consent can be useful. Any emails or other records of initial explanations of the project for the purpose of obtaining consent should be retained.

If a “standard” release is to be signed to secure the participation of a key participant the following might be considered:

  • Include a broad general statement about the theme of the project providing that this is not too limiting should the project take a different direction;
  • Take extra care with participants who are vital to the project and without whose consent and ongoing cooperation the project cannot proceed;
  • Consider updating standard releases to reflect the needs of particular projects;
  • If a participant is to be given a legal right of withdrawal up to a certain point this needs to be very carefully drafted so as to be clear to all parties;
  • Any ethical or editorial protocols about filming consents, preview screenings and consultations with key participants should be carefully considered in relation to their legal status and the implications for editorial independence;
  • where a release is particularly long or complex or will result in the grant of legal rights such as in a musical performance, it may be prudent to give the participant the opportunity to obtain legal advice; and
  • Key participants could be offered a courtesy copy of their release.

Vulnerable participants

The case does not deal with the special issues that can arise with vulnerable participants such as children or the mentally infirm. In these cases a court is more likely to be protective of the participant, and legal and ethical issues may be more closely linked. It may be necessary to take additional steps to ensure that proper consent is obtained.

This post is not legal advice. For advice on your particular query, please contact me.

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