PressEthic

A piece in Slate magazine's Explainer section tackles the legality of the interviews included in Sascha Baron Cohen's new movie Borat: Cultural Learnings of America for Make Benefit Glorious Nation of Kazakhstan. Some of the people interviewed for the film believed Sascha Baron Cohen to be, actually, the Central Asian journalist character he plays, Borat. Now that they know he is not who he claimed to be, the unhappy interviewees have little legal recourse, if any, because they signed detailed releases. According to Slate,

Participants were asked to sign a "STANDARD CONSENT AGREEMENT" prepared by "One America Productions Inc." The document describes a "documentary-style film" designed "to reach a young adult audience by using entertaining content and formats."

Apparently, there is nothing standard about this agreement. It's unusually lengthy and detailed, going to great lengths to protect the film and its producers.

There's even a reference to the federal Lanham Act, which covers unfair business practices that could mislead consumers. (This clause may protect against the claim that consumers were made to believe that the participant has endorsed—or voluntarily acted—in the film.)

These interviews are standard fare for Cohen. On Da Ali G Show, the television program that launched him into fame, the same method was used to score interviews with people like Christie Whitman, Sam Donaldson, and James Baker. Regardless of how fair this approach is, in an entertainment format, it is arguably acceptable.

However, it would be wise for journalists to make their intentions about the use of an interview absolutely clear. According to a story in Editor & Publisher this week, Jane Pauley, the former host of NBC's Today show and Dateline, is suing the New York Times over an interview that appeared in an advertorial section. Pauley claims that she believed she was being interviewed for a journalistic piece in the paper. The New York Times says they told her assistant that, "Ms. Pauley was to be interviewed would appear in a special advertising supplement and Ms. Pauley agreed to participate." The interview, about Pauley's struggle with bipolar disorder, appeared alongside a large picture of her in an ad for pharmaceutical companies, promoting psychoactive drugs.

It seems Pauley might, unlike the unwitting Cohen interviewees, have some grounds in this case. The Slate explainer says, "you can sue on the basis of your publicity rights if your image gets used for commercial purposes without your permission."

There has been a lot of discussion lately about issues of identity and purpose from a journalistic perspective, from pretext calls to undercover reporting. The obvious lesson in this is that in terms of minimizing liability, honesty is the best policy for interviews.