Documentarists as Journalists

*The information provided by Adam Wactlar, the Yale DocProject, Nigel Bellis, and Simon Tor Dekker was provided to us for informational purposes only, and should not be construed as legal advice on any subject matter. The views and opinions expressed are those of the speakers and do not reflect the views of any entities they represent.

Telling the Victim’s Story

In 2021, Time Magazine published an article discussing “docu-mania” and how it “took streaming by storm” (1). According to this article, Netflix’s 2020 documentary “Tiger King'' amassed 15.6 billion minutes of views, which seemed to be the start of other major streaming platforms such as Hulu and HBO creating their own documentaries and docu-series. But, beyond the entertainment and beyond the sensationalization made by the media, documentaries are stories. And, in an interview with documentarist Nigel Bellis, we learned that documentaries can be a chance for victims to share their stories about what really happened.

We asked Mr. Bellis about his experiences reaching out to and speaking with survivors and family members of victims to appear in documentaries.

Documentarists vs Journalists

When speaking with our interviewees, especially the students at the Yale DocProject, we learned that there is a lot of overlap between the documentarist and the journalist. From the stories that they tell to the ways they research and find those stories, documentarists and journalists play a significant role in bringing important issues to the public’s attention.

We spoke with Simon Tor Dekker about his experiences as a true crime documentarist and his views regarding the line documentarists walk between filmmaker and journalist. He shared a shocking discovery he made while filming Edge of War. 

Mr. Dekker explained what it is like to discover new information during documentary filmmaking. 

Unfortunately, as Mr. Dekker said, documentarists may face legal backlash due to their portrayals or reporting of facts and events. We spoke to law students at the Yale DocProject (2), and asked about ways that documentarists can protect themselves from lawsuits, such as whether or not documentary filmmakers get journalistic protections.

Currently, documentarists do not have journalistic protections such as shield laws. Shield laws are state laws that allow reporters to “shield” the identity of their sources (3). This is to protect an investigative journalist’s first amendment right to freedom of speech and press (4). However, not all states have shield laws, and the Supreme Court struck down a potential federal shield law in Branzburg v. Hayes (1972) (5). 

We asked the students about any First Amendment issues that may typically arise in a documentary.  

The Threat of Defamation

Defamation, “is a statement that injures a third party's reputation.” To prove defamation, four requirements must be proven (6): 

“1. A false statement purporting to be fact; 
2. publication or communication of that statement to a third person; 
3. fault amounting to at least negligence; and 
4. damages, or some harm caused to the reputation of the person or entity who is the subject of the statement.”

Mr. Bellis told us that the potential for lawsuits are rather par for the course when it comes to documentaries. This seems to also be the case for journalists regarding defamation lawsuits according to the Reporters Committee for Freedom of the Press (7).

Adam Wactlar, a lawyer at Netflix whose expertise is in docudramas – a dramatized film based on true events – spoke to us about his experiences with legal matters pertaining to docudramas.

In 2023, Netflix prevailed in a lawsuit brought by Andrew L. Colborn, who sued Netflix for defamation due to his portrayal in the documentary Making a Murderer. Mr. Colborn claimed that the documentary purposefully edited clips to make him appear as a villain (7). However, U.S. District Judge Brett H. Ludwig ruled against Mr. Colbourn, saying “the First Amendment does not guarantee a public figure like Colborn the role of protagonist in popular discourse—in fact, it protects the media’s ability to cast him in a much less flattering light—so Defendants are entitled to summary judgment on all counts” (8).

We asked Mr. Wactlar what typically happens when someone disagrees with their portrayal in a docudrama.   

Fact Check, Fact Check, Fact Check

As stated above, to prove defamation four requirements must be proven. One requirement is proving that a false statement is purported to be a fact. Accordingly, it is important to ensure that statements of facts are accurate.

In our interview with Mr. Bellis, he said that in larger film networks they might employ what’s called an annotated legal script.

While this may seem tedious, Mr. Dekker explained that even the most important details of a crime or event can be inaccurately reported. 

While conducting extensive fact checking can seem tedious and near impossible, substantiating the statements made in a documentary can go a long way in protecting against defamation claims. 

To the budding documentarists out there who may shudder at the thought of all that fact checking, perhaps these words from Mr. Bellis might provide some encouragement.