Is A Documentary Investigative Reporting? Should Filmmakers Be Covered By Journalist Shield Laws?

from the seems-reasonable... dept

Wed, May 12th 2010 1:46am — Mike Masnick

While there are still ongoing arguments over whether or not bloggers should be considered journalists when it comes to keeping their sources and source materials confidential, there's another arena impacted by all of this as well: documentary filmmakers. A judge has ordered a documentary filmmaker to turn over "cut" footage to Chevron from the filmmaker's documentary about Chevron's involvement in pollution of the rainforest in Ecuador. Chevron believes that there may be footage that will help it get a lawsuit filed against the company by Ecuadorians dismissed. While the filmmaker argued that the works were protected, the judge shot that down in saying that since there were no confidentiality agreements signed, that the material is not confidential. That seems like a rather broad ruling over whether or not a journalist can protect their sources. Do all journalists now need to sign confidentiality agreements with sources?

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Filed Under: documentaries, journalism, movies, shield laws
Companies: chevron

6 Comments

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Rose M. Welch (profile), 12 May 2010 @ 1:34am

If so, would their confidential names be on the confidential paperwork and how would that impact discovery in a lawsuit?

What would happen to those written agreements when the journalist died?

The safest place for the name of a source is in the mind of the journalist.
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Workingindust, 12 May 2010 @ 2:52am

On the other hand
While I'm all for the eco side protecting the planet and all there have been many instances where special interest groups protecting this animal or that, publish their edited footage to make damaging claims against their opponents. However when news organizations ask them for the raw video they clam right up and keep up with their 'it's in our video... trust us' rhetoric.

If you make a movie or documentary that shows that group 'a' is doing something horribly wrong, be prepared to show all your raw video. IMHO that’s the only way you can keep your credibility.
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- Rose M. Welch (profile), 12 May 2010 @ 3:14am
  
  Re: On the other hand
  Well, yes and no.... Take, for example, taped interviews of whistle-blowers, that are later modified to protect the identity of the interviewees. The release of such raw material might seriously harm the interviewee. In such cases, the release of sources and raw material would be less important than protecting those sources.
  
  So while I agree that the release of raw footage can be a very good thing, I don't think it's necessary, or even the most important thing. If the owner of the raw material would rather suffer public scorn and disbelief than give up their mats, so be it.
  
  In essence, I don't think that we should be using the law to bludgeon filmmakers and journalists into giving up their sources or source material.
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Paul Alan Levy (profile), 12 May 2010 @ 4:04am

Tough case
Interesting case, thanks for calling it to attention.

Seems to me the case may be a harder one because the documentarist got blanket releases from the folks he filmed, allowing him to include anything he filmed part of the publicly released movie, and the participants whom he filmed participated for the very purpose of making their actions public. The documentarist entered into specific agreements on confidentiality with some folks, not others. Another hard aspect is that the documentary was made at the instance of the plaintiffs' lawyers, as a way of publicizing their case; and the lawyer seeking the discovery made some strong arguments about why the material being sought could be central to his case. http://graphics8.nytimes.com/packages/pdf/arts/revised050chevron.pdf And the journalist privilege is a qualified privilege, that involves a balancing of the need for confidentiality against the needs of the person seeking discovery.

Still, the opinion is a bit odd because it begins by quoting a Second Circuit opinion saying that the journalist privilege is stronger when there was an assurance of confidentiality, and weaker when there is not. But after deciding that there was no assurance of confidentiality, the opinion does not go back to perform any balancing test.
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Pixelation, 12 May 2010 @ 8:05am

If the footage will help Chevron, why is the film maker resisting. Is it simply to protect his sources or is it just "I shouldn't have to"? Will Chevron be allowed to use what they find for anything other than protecting itself in court?
It seems like he should be able to edit out footage with anyone he has a confidentiality agreement with.
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Tony, 12 May 2010 @ 9:50am

Chilling Effect
There is also the issue of trust and the chilling effect. Documentary filmmakers go to great lengths to gain the trust of people and communities to allow them to film in the first place (especially when dealing with indigenous groups or victims of wrong doing). Subjects have to believe they will be treated fairly in the final cut. If in the end the filmmaker then is forced to turn over footage to companies or governments that trust will be broken. It could be much hard if not impossible to get people to agree to be on camera if they fear the raw footage will turned over.
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