What are the problems with informed consent, what are filmmakers’ experiences, and should we consider alternatives?

As a Must: a Brief Background

informed-consentThe 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:

  1. information: the potential participant should be informed about the procedure, and possible (positive and negative) consequences, risks and results;
  2. consent: the potential participant should actively give consent;
  3. voluntariness: consent, and thus the participation, should be voluntary and free of pressure or control; and
  4. 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.

advertising-liesFilmmakers 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.

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