In Britain, the media’s focus on fakery in documentaries has reached explosive heights. Consequently, the broadcasting regulatory body has started to follow rigid rather than sensible measures to protect viewers from untruthfulness, which can challenge freedom of expression.

BRIAN WINSTON
Dr Brian Winston is the first holder of the Lincoln Professorship at the University of Lincoln, United Kingdom. He was a Pro Vice Chancellor for 2005-2006 and the former dean of Media and Humanitie

BRIAN WINSTON discusses the conflict.

The story that began with the Guardian newspaper’s exposé of Carlton Television’s faked documentary The Connection, about a Colombian drug smuggler, will not go away. Every week in Britain there seems to be another scandal about documentary “fakery”.

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In February ’98, a documentary about rogue builders was exposed as having a number of faked scenes, including one where two men were supposedly filmed stealing building supplies.

In August, a film crew was accused of making children in the care of a local council beg on the street and, in the case of one 15 year-old girl, solicit as a prostitute.

In September, a programme about fathers and daughters was pulled at the last moment when it was revealed that one of the ‘fathers’ was actually the young woman’s boyfriend.

In December ’98, after a lengthy quasi-judicial inquiry, Carlton was eventually fined £2 million by the regulator, the Independent Television Commission (ITC), for breaking its legally binding programme code by having people ‘act’ the roles of drug traffickers, pretending to have smuggled heroin (actually just sweets) into Britain.

By the turn of the year, the papers were no longer interested in only documentaries. A popular BBC daytime confessional talk show was revealed to have used “faked guests” hired through an agency.

In February ’99, men in a scene from a documentary transmitted in 1997, who were shown picking-up rent-boys in Glasgow, were revealed to have been members of the production team. The Commission fined Channel 4 £150,000 for this unlabelled ‘reconstruction’.

In March ’99, two programmes were in trouble for employing criminals on production teams. In one, a freelance reporter accused an antique dealer of selling stolen goods; but the dealer was working undercover for the police who were actually investigating the reporter, a man with a criminal record for theft. The second ‘scandal’ involved a researcher on a programme about illegal guns transmitted no less than three years earlier. He too was revealed as having a criminal record, and many scenes in the film were shown to have been set up.

The moral panic in the newspapers shows no sign of abating. The coverage, though, is also fast descending into farce. Now the journalists are breast beating about the ethics of using tamed wild-life for close-ups in nature films!

The broadcasters’ response to this veritable witch hunt (conducted, do not forget, by one of the least ethical presses in the free world) has been extraordinarily muted. Of course, nobody can condone misrepresentation and mendacity, but the profession has made little attempt to explain the everyday interventions of the documentary filming process

One reason for this is that the broadcasters have been picked off one by one. Moreover, the industry is unwilling to confront the underlying reasons why so many documentarists are playing fast and loose with reality.  Most television documentaries are made by small independent production companies which are really nothing more than a disguise for a casualised, insecure workforce. To get a commission from a broadcaster often entails promising more than can be delivered. Failing to deliver is widely seen as a one-way ticket out of the industry. With these pressures it becomes easy to see why programme makers are firstly prepared to promise what they cannot be sure of filming and secondly to fake it when they fail.

But while it is easy to see why the broadcasters do not feel able to defend themselves, the scale of the attack begins to raise other issues. There is the question of freedom of expression.

It is not illegal under British law to tell lies; you can’t sue politicians, for example, on that basis. If damage results from telling lies, then that is a different matter. What is chilling about the witchhunt is that the ITC, a government regulatory agency, has in fact invented a wholly new offence which can be termed ‘abuse of public trust’. If found guilty of this offence, you may expect substantial penalties to be levied without damage to any party being proved.

Technically, of course, the ITC would deny this. It would claim to be merely enforcing its Programme Code, specifically Section 3.71 which says dramatised reconstructions in factual programmes must be identified as such for the viewers. Compliance with this Code is part of the contractual obligations incurred by broadcast licence-holders like Carlton. But, in effect, the scandal is caused not by any breach of contract but by fakery. The offence is really that a misrepresentation has been broadcast, thereby abusing public trust in the medium.

And that is against natural justice. First, it doesn’t apply to everybody, or even to all broadcasters, just those controlled by the ITC. (The BBC, for example, in effect regulates itself.) As for the newspapers which have been leading the witchhunt, any suggestion that they might be liable for printing non-libellous untruths would be seen (in my view, quite rightly) as a serious threat to free expression. So the current UK situation does not have all media workers equally liable to tell the truth.

Second, and even more worrying, this “abuse of public trust” offence does not require that any damage be shown. Much was made of the fact that the Carlton documentary had been seen by nearly four million people in the UK, but how had it actually affected them? Were they distressed to learn about a new heroin route into Britain? Did they go out hoping for cheaper heroin and become upset when they couldn’t find it? The same is true of all these other cases. How has the viewer been damaged? And, if no damage can be shown, why should an arbitrary group of documentarists have a government regulator impose heavy penalties?

The idea of free expression is not without limits. There will always be quite proper restrictions — official secrets, the names of rape victims, blasphemy, obscenity, libel and slander.  But in all these cases there is either damage or universal applicability, neither of which is in play in the current crop of British television documentary scandals. Our history makes it clear that being untruthful in public is not an actionable offence of itself: ‘You are not free to cry, “Fire!!”, in a crowded theatre’. But you will only be liable if identifiable people are injured or distressed.

I am not saying that documentarists should not be held to account if they lie and cheat. They should most certainly be exposed and they should suffer the consequences of that exposure – the public destruction of their credibility, the denial of opportunities to make further films.  But that is not the same as fining people whose actions have not actually harmed the audience. If they cannot be taken to court, they should not be fined.

The third legalistic objection is that the ITC requirement that ‘reconstructions’ be labelled for the audience is completely ill-defined and apparently based on some quite primitive vision of how films get made. This vision is clearly grounded in the rhetoric of Direct Cinema with the implication that the ‘fly-on-the-wall’ film maker captures reality as it happens and that anything other cannot be documentary. But that is, as we know, tendentious nonsense. It ignores how the vast majority of documentaries, even those most obedient to Direct Cinema’s rules and strictures, are made.

It is actually extremely difficult to draw a clean line between what might be considered ‘reconstruction’ and what might not. Let me give a classic example to illustrate what I mean. In his autobiography, The Camera and I, Joris Ivens recalls an incident during the filming of Rain:

“On the big central square of Amsterdam I saw three little girls under a cape and the skipping movements of the legs had the rhythm of raindrops. There had been a time when I thought such good things could be shot tomorrow as well as today; but you soon learn that this is never true.  I filmed those girls without a second’s hesitation.  They would probably never again walk at that hour on the square, when they did it wouldn’t be raining, and if it was raining they wouldn’t have a cape, or skip in just that way, or it would be too dark or something.”

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Joris Ivens, Dutch filmmaker

At first sight there seems to be a real, and clearly defined, gulf between what Ivens filmed and what he would have had to do if he had left it. In that case, the event before the lens would not be happening without the direct instigation and intervention of the film maker; whereas in the other, the skipping children would be skipping whether Ivens was present with his camera or not.  But what of the realities of normal film making practice? Ivens did not report whether or not he had any conversation with the children; but what if he had asked them to repeat some skipping steps? Or if he had asked them to continue to play for his camera after they stopped playing for themselves? Would that have required, under the terms of the ITC Code, a warning to the viewers that they were watching a reconstruction?

Of course, we all understand that the Code is really talking about misrepresentation not reconstruction; but, if that is the case, it ought to say so. Levying fines of millions on the basis of such loose and ill-thought-out rules is, again, not acceptable in a free society.

There is a basic ideological advantage, though, in continuing to panic about documentary “truthfulness” on television: Undermining the truth claims of some programmes on television implicitly suggests that other programmes which have not been exposed and fined must therefore be true. So a New Age documentary which lays out ‘evidence’ for UFOs but which is not then attacked for abuse of public trust must be ‘truthful”? This might be an absurd example; but, as the NATO bombs fell on Serbia, it was not hard to think of other television programming where such an implicit endorsement of ‘truthfulness’ has considerable ideological value and force. “Reculer pour mieux sauter” appears to be the order of the day when it comes to “bombing”UK documentaries.

 

 


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