Interviews, Release forms, and the Law?

[custerc]

So in the process of considering a new interview for the film, I have run into some ethical questions. I don't want to get too specific but here's a general explanation of the situation:

We're interviewing a subject whose child is missing, and was likely kidnapped from school. The child's teacher somehow failed to mention to them that their child never showed up to school that day until they called, panicked, at 8pm asking why the child hadn't come home. However, some of the child's classmates say they DID see the child at school that day. The school also has CCTV cameras, but the footage from that day has been somehow "lost".

Our subject really wants us to interview this teacher, and while I find it unlikely the teacher will say anything interesting other than "go away!", the evasiveness would be illustrative if nothing else. And our doc really needs some action, as right now we've got a lot of drama but it's all through talking heads (that's another story...)

Anyway, we're shooting in China, and have already found that in some cases police have taken an "interest" in our work and harassed our subjects, so we want to be very careful. One thing I've been considering is doing interviews like this via recording phone calls from payphones, without informing the other party, or getting their consent. This is almost certainly illegal in a number of ways, but it does have some advantages; namely that it gives us the interview without putting us or our subject (the parents) at any risk of arrest or harassment, and does give the "accused" party an opportunity to respond to what's been said about them, although they don't know it's being recorded or that it's for a film. Clarification: there is not really any risk for the people we'd be calling, other than the risk of looking bad in the film. When I say "put our subjects at risk", I mean the parents, our primary subjects.

In China, there's essentially no risk of being arrested for illegally recording an interview; if we're going to be arrested for this film it will be for something much bigger, so I'm not worried about that, but it does present an ethical dilemma of sorts. Is it better not to do the interview and risk having a one-sided film because no one on the other side will go in front of the camera (and some people on the other side would potentially instead confiscate the camera and have us arrested), in other words, not really allowing those people to defend themselves? Or is it better to do the interview, give them a chance to defend themselves, but not be fully informing them of what's happening.

Obviously, neither is ideal, but this is the situation we find ourselves in.

Moreover, I'm wondering how this sort of thing works in terms of distribution down the road. For festivals and for other stuff, I've heard they often want to see all your release forms. But then, I also know of films like "Petition", filmed in China over 13 years using mostly hidden cameras to shoot inside government offices; there's no way there were any "release forms" for the officials who appeared in those films, and they weren't informed, but the film was still distributed, hit festivals, etc. A bigger example would be The Cove; I can't imagine any of those fisherman gave the film crew signed releases, and lots of the film was shot with hidden cameras recording people who aren't aware they're even being filmed.

So....yeah. Thoughts?

 

[MPB]

dilemma? you're talking about lying to people who you say don't have any valuable information to offer, because you're trying to inject a bit of drama into an otherwise lackluster story?

don't make it more complicated than it is. that's not an ethical dilemma, it's a choice.

 

[custerc]

dilemma? you're talking about lying to people who you say don't have any valuable information to offer, because you're trying to inject a bit of drama into an otherwise lackluster story?

don't make it more complicated than it is. that's not an ethical dilemma, it's a choice.

I didn't say they have no valuable information to offer. Indeed, they potentially have extremely valuable information to offer if they can speak to the child's whereabouts, or what happened to the CCTV footage. I do think they're unlikely to share that information though, especially if they know they're being recorded for a documentary production that involves foreigners.

 

[MPB]

sorry if i glossed over the distinction. but you've suggested that these people are at some risk simply for having been in contact with you. that risk doesn't necessarily seem diminished for having taken place over the phone, just delayed. correct me if i'm wrong, but you're suggesting deceiving them for questionable gain, putting them at risk without their consent. it takes some fancy gymnastics to turn around and imply some sort of journalistic integrity is being served because you're providing them the opportunity to tell their side of the story. without their informed consent. how's that work?

 

[custerc]

sorry if i glossed over the distinction. but you've suggested that these people are at some risk simply for having been in contact with you. that risk doesn't necessarily seem diminished for having taken place over the phone, just delayed. correct me if i'm wrong, but you're suggesting deceiving them for questionable gain, putting them at risk without their consent. it takes some fancy gymnastics to turn around and imply some sort of journalistic integrity is being served because you're providing them the opportunity to tell their side of the story. without their informed consent. how's that work?

No, I should have been more clear in the original post. The people at risk from talking to us are the parents, the "wronged party" in this case, who could face retribution if it becomes obvious they were talking to journalists (and foreigners, at that). The people I'm talking about calling w/o consent (i.e. the teacher) are not at any sort of risk; they're the ones who create the risk for the parents (which is what I meant by "our subjects").

Basically, it could go like this:

We directly/openly attempt to interview teacher -> Teacher refuses to talk, tells us to leave -> Teacher then calls police, tells them that parents have been talking to foreign journalists who are asking questions

That creates potential risk or harassment and arrest for us and for our main subjects (the parents). And it has already happened once, with a different set of subjects. There is no real risk for the teacher, or for any police though (aside from the risk of looking bad in the movie, depending on what they say).

But the teacher, in particular, may actually have a legitimate case. S/he is going to look like an asshole if I can't get it from anyone, though, because at the moment the only ones who will talk to us are the parents, and they don't portray the teacher too kindly.

Anyway, I updated the original post to clarify that point.

 

[MPB]

i see. i'm sorry if i misconstrued your description.

but i'm still not quite sure i understand. if the teacher tells you nothing of any real value, either because they have no information or because they aren't willing to share it, you propose to include that conversation in your doc to indicate or imply some sort of evasiveness. you hold out some small hope, however, that the teacher will provide some information that will... implicate themselves or someone else as complicit or negligent? if so, doesn't that take us back to our uninformed risk?

 

[Peternap]

I have no idea if what you're proposing is legal in China. In the USA, in some states yes, in some no.

Ethical? It depends. If you record it and there is no implication or connection to the missing child, just don't use it. If it does produce something, use it.
The ethics are pretty simple. Your job is to produce the facts. Period! If the facts include this person interviewed, use em.

 

[custerc]

i see. i'm sorry if i misconstrued your description.

but i'm still not quite sure i understand. if the teacher tells you nothing of any real value, either because they have no information or because they aren't willing to share it, you propose to include that conversation in your doc to indicate or imply some sort of evasiveness. you hold out some small hope, however, that the teacher will provide some information that will... implicate themselves or someone else as complicit or negligent? if so, doesn't that take us back to our uninformed risk?

Well, there's also a chance they could exonerate themselves somehow. And if they implicate themselves in the <em>kidnapping of a child</em> (who, in all likelihood, has been sold into prostitution), to be perfectly honest, I am not going to care that much about having recorded them without their permission.

And realistically speaking, the risk to the teacher from our film is negligible, beyond embarrassment. I suppose if they really implicated themselves somehow, it could lead to some kind of legal punishment -- a small fine, perhaps -- but honestly that kind of outcome is extremely unlikely. SO we're talking about uninformed recording, certainly, but minimal risk. We may also opt not to use the teacher's real name.

Perhaps that's not fair -- it's OK to record "bad" people without their permission -- but that seems to be the line a lot of docs draw....I don't recall anyone getting upset that those dolphin-killing fisherman's rights were violated in The Cove, for example.

 

[MPB]

if they were guilty of perpetrating a crime, or complicity, i don't think i would have a problem "catching them out" and using the material. however, if the parents have been subject to police harassment as a result of speaking about the matter, i think it would be irresponsible to subject a teacher or anyone else to the same harassment, if they were actually providing you with information regarding the crime. if they were not complicit i can't see how deceit on your part can be justified.

as documentarians we often feel very strong associations with our subjects/stories, and somehow transfer whatever righteousness we see in the story to our endeavor to tell the story. but they're distinct, and the stories we tell can't be seen as more important than the lives of those actually living them. a camera can be used as a weapon, and i guess i err on the side of overemphasizing safety where weapons are involved.

good luck, it sounds like you're engaged in a very worthy project.

 

[custerc]

if they were guilty of perpetrating a crime, or complicity, i don't think i would have a problem "catching them out" and using the material. however, if the parents have been subject to police harassment as a result of speaking about the matter, i think it would be irresponsible to subject a teacher or anyone else to the same harassment, if they were actually providing you with information regarding the crime. if they were not complicit i can't see how deceit on your part can be justified.

Agreed. But we wouldn't be subjecting them to that, as no one would know anything about the conversation, unless they chose to report it themselves. Even after the film came out, if the police there happened to see it -- unlikely as it's difficult/impossible to distribute independent documentaries in China -- I would think they'd be fine, as it would be clear from the film they didn't know they were talking to a foreigner (which is generally the worst part as far as security forces are concerned; many take the attitude that it's one thing to talk about problems and another to share them with 'outsiders')

But to be fair I can't be sure. Nor can I be sure what response the teacher will give.

To be honest, I think we'll probably try to shoot it and see what happens. Rather than engage in further hypotheticals, it will be easier to assess whether or not we should use the footage once we know exactly what's in it.

 

[atarijedi]

I'd just like to tell you that in Canada, what you are suggesting is completely legal. You can record audio/video any interaction as long as 1 party is aware of the recording, and is ok with it.