What are the problems with informed consent, what are filmmakers’ experiences, and should we consider alternatives?
As a Must: a Brief Background
The concept of informed consent originally comes from the world of medicine, and the practice of obtaining it existed long before it was actually labelled ‘informed consent’, which makes its exact origins hard to pinpoint. Important though was the growing acknowledgement of individual rights and autonomy. Now it is used in many other fields as well, including documentary filmmaking. The concept hasn’t changed much and a definition could be that informed consent is an autonomous action by a subject or a patient that authorises a professional either to involve the subject in research or to initiate a medical plan for the patient (or both).[i] Informed consent actually has several component parts. The main elements are:
- information: the potential participant should be informed about the procedure, and possible (positive and negative) consequences, risks and results;
- consent: the potential participant should actively give consent;
- voluntariness: consent, and thus the participation, should be voluntary and free of pressure or control; and
- competence: the participant (or alternatively a responsible guardian) should be competent to understand the information given and to consent or refuse.
Of course there are important differences between informed consent in medical practice and clinical research on the one hand, and documentary filmmaking on the other. For example the result, in casu a documentary film, will be made public, usually without anonymity or confidentiality for the participant(s). Another important difference is that in documentary filmmaking there is no prescribed procedure or method. This makes the indiscriminate use of the term ”informed consent’” in documentary filmmaking suspicious to begin with. The issue of informed consent is much debated in the field of medicine and research. The time has come to take a more critical look at its use in documentary filmmaking as well.
For my Ph.D. project on author documentary filmmaking and ethics, I interviewed eighteen Dutch documentary filmmakers (some of whom also make fiction, however). The filmmakers varied in age, experience, and producers involved. Nine were women, nine men. I asked them to talk about the ethics of their profession, about examples of problems they’d experienced in their work, and about decisions they’d taken. They addressed many issues, amongst others the component parts of informed consent. Reviewing their many remarks, the deviations from traditional informed consent in their documentary filmmaking practice seem abundant.
Informing Participants: Telling the Truth, or Not the Whole Truth…
Informing potential participants is considered an important duty of a documentary filmmaker. Participants should know what they consent to. But filmmakers may not tell the whole truth about their project and their plans: they either can’t or they won’t.
Filmmakers say they “can’t“ tell the whole truth because they don’t know yet which footage will be used and how participants will end up in the film. Also, filmmakers may not (yet) have a clear view on the subject. Sometimes filmmakers simply don’t speak the participant’s language and there’s no interpreter. Or potential participants are unknown in advance.
Filmmakers generally inform the participants of the result of the process, i.e. the film. But as far as informing the participants about possible consequences, filmmakers also say they sometimes can’t: They don’t know yet how the material will be used, so they can’t oversee the possible consequences. They don’t know how films – in whatever guise – reach people across the globe; people who they may not want to see the film. One filmmaker said reality changed because of the filming going on. It took an unforeseen direction, which makes it impossible to foresee what will happen as a consequence.
If I can film Dutroux, for example, and he tells me something in secret, I won’t keep that secret
Filmmakers say they “won’t” inform participants completely when they fear it makes participants worry about whether their ‘performance’ will be good enough, thus jeopardising their spontaneity. Sometimes, they want to trigger something and thus use participants’ ignorance. Concerning information about the procedure of filming, filmmakers say they don’t want participants to worry about what is considered the filmmaker’s job: how to shoot and construct the film. They also mention the possibility of losing access to participants when telling the whole truth. Several filmmakers said they wouldn’t tell the truth if that would give them an opportunity to film someone whose ideas or actions have profoundly influenced history and/or are generally condemned. Sometimes, participants don’t live in a film/TV culture and are unfamiliar with filming in the first place. Explaining everything would simply take too much time and effort.
Concerning the result, filmmakers say they won’t show it to the participant when the cultural or geographical distance between filmmaker and participant is considered unbridgeable, when the (political) situation of the participant makes it dangerous, or when participants are not interested in seeing it.
A reason not to inform participants about possible consequences of participating is that filmmakers simply regard it as too much of a burden for participants to have to contemplate all possible risks, however tiny. And the benefits? Well, some filmmakers readily admit that they find it very hard to explain to people what the film could do for them.
Consent or Silence Lends Consent?
Informed consent implicates the actively and intentionally giving of consent. Again there are reasons why filmmakers can’t obtain consent from participants and reasons why they won’t.
When it comes to the act of filming, filmmakers indicate they “can’t” get individual consent if filming unannounced. They “won’t “get individual consent when filming, for example, in a (semi-)public space. In that case they’ll announce when they will come and film, giving people who don’t want to participate a chance to stay away. Some regard filming out in the open, for everybody to see, as a form of informing and thus take silence as consent. Filmmakers also won’t ask for consent if they want to reveal something or someone. The greater good here outweighs the rights of the participants.
Some filmmakers feel more obliged to ask for consent to use the images than to film. But they won’t ask when participants don’t keep their end of the deal, an issue I will return to later. Sometimes participants are not traceable or there is no contact. Another reason not to ask for consent for individual images or scenes, or for the film as a whole, is that filmmakers don’t want to give others the right to veto the material. They see it as their job and their right to use the images as they see fit.
Filmmakers indicated they treat consent given by superiors or representatives of institutions or organisations different from consent given by individuals. With organisations, they regarded the boundaries as challenges, to be crossed. They’d actively try to film things – or individuals – they were told not to film. With individual participants, filmmakers would ask about that one issue participants indicated they didn’t want to talk about, because that is where life is being lived. But they said they’d respect boundaries if individuals insisted.
A “quit claim” is generally seen as the material informed consent. Some filmmakers however indicated they won’t use them, or they left it to the producer to get them signed. They indicated that by the time you need to fall back on this contract, you’ve botched it.
Voluntariness of the Consent Decision
The decision to consent should be taken voluntarily, regardless of what is being consented to (filming in general, filming a certain scene, using certain footage). Voluntariness means the decision is taken in absence of control, the decision is intentional and understood. Filmmakers mentioned little about the extent of voluntariness of the consent decisions of their participants. But they related voluntariness to paying a participant. Some feel paying is no inhibition to voluntariness and spontaneity, and feel better doing so; others say it is an inhibition, and therefore reject paying. Some see it as a compensation for invested time and missed income. Still others won’t pay but will give presents.
You shouldn’t be too careful … children can take quite a bit
Competence to Consent
Traditionally, and legally, everybody who is allowed to be responsible for their own lives is considered competent. This excludes the obvious categories, such as children, the mentally disabled, and the demented elderly. But competence is a continuum, ranging from completely incompetent to completely competent.
Filmmakers “won’t” take into account the requirement of competence when filming people who are unfamiliar with the medium. Such people might not be considered to understand what they are really getting into – being unfamiliar with film and TV – but that won’t prevent them from being filmed. Also, some filmmakers come to mutual agreements with children they’re filming. They make separate agreements with minors on details of filming, even though the parents are responsible. On the other hand, filmmakers say they disregard the competence of people who they feel can’t oversee what they are saying or doing. For some participants, such as politicians and others working in the public sphere, professional competence is expected: as they should know what they’re getting into, they need less protection.
Considering the above, informed consent in documentary filmmaking is more a myth than reality. Apart from the ‘won’ts’, which not everybody may find justifiable, there are the ‘can’ts’, which make true “informed” consent impossible. And informed “consent” may be split between consent to being filmed versus consent to use specific scenes or images, and institutional versus individual consent. And what happens once consent has been given?
After Informed Consent
Consenting to participation means there is a certain form of reciprocity. In the case of filming: if the participant agrees to be filmed, s/he enters into a form of cooperation with the filmmaker. To what extent are participants then obliged to inform the filmmaker about certain things – and about what?
Filmmakers indicated they expect their participants to stick to their consent and hope they like the experience. But their participants didn’t always inform them of facts relevant to the film, e.g. about the time and place of a meeting. Filmmakers accidentally found out there is more to the story than the participant told them. Filmmakers warned participants about possible consequences, but participants didn’t always tell filmmakers about experienced consequences, even when filmmakers insisted they did so, and thus prevented filmmakers from helping them.
In theory, informed consent entails the freedom to quit the process any time you want. This means voluntariness is a precondition at any moment. In practice however, it is impossible to check voluntary cooperation with every shot or edit. It seems that the strict requirement of voluntariness needs to go with engagement. And so the myth of informed consent and the necessary reciprocity of engaging in a project call for an alternative approach to the inflexible traditional informed consent.
Traditional informed consent is a one-way phenomenon: I give consent to you, you do something for me. But if participants consent to participate in a documentary film project, they enter into a form of cooperation with the filmmaker. The filmmaker expects her/him to keep the deal and stick to agreements, and vice versa. It’s an agreement, and it’s mutual: it’s something two or more individuals do. So my first suggestion would be to replace the idea of consent with agreement. But that was the easy part.
More complex is an alternative to the ‘informed’ element. In traditional informed consent, the informed part is also one-way: the professional/filmmaker informs the subject/participant. If we make this a mutual aspect, we arrive at something like communication or dialogue. In traditional informed consent, the competence of the professional is taken for granted. But participants should feel free to ask about the filmmaker’s competence and experiences as well. Filmmakers may communicate about their profession, their views, etc., and explain what they know in advance and what not and why they can’t or won’t inform their participants about everything. In the end, the filmmaker still has the rights over images and should exercise this responsibly. But only through communication and dialogue can an understood and accepted form of cooperation be negotiated. This way, consent based on uncertainty is fine, as long as that uncertainty is agreed to by the participant. As argued before, voluntariness should not be without engagement. The competence of participants should be taken into account based on jurisdiction as well as common sense. And jurisdiction should also serve to deal with filmmakers who abuse their copyrights to materials featuring others.
In her book “The Human Condition”, philosopher Hannah Arendt describes how telling stories and thereby participating in the public space is essential for our society. By acting and speaking, people appear in the world and show who they are. Actions and speech are directed at others. But they entail a risk: action and speech create something new that is irrevocable. Each action takes its own space in the public sphere and becomes uncontrollable, intermingling with other actions, going its own way. The actor has to be willing to take such a risk. Participating in a documentary is such a risk. Filmmakers can make those risks worthwhile and enrich our society with the faces, voices and stories of many. To do this, an agreement through dialogue may be a better basis than rigid informed consent.
[i] “A History and Theory of Informed Consent” by Ruth R. Faden and Tom L. Beauchamp, Oxford University Press, New York.