Catfish, the Khmer Rouge and Ethical Documentaries

This Friday sees the release of Enemies of the People and Catfish. Both are raw, digitalized documentaries that speak of the documentarian’s newfound portability. Both, in their own way, have at their core highly intimate and personal revelations. Both play out chronologically, as if they exist in time as it is experienced. But, in terms of their ethical attitudes and the questions they raise, they are poles apart.

One is a slightly dated but probing, highly accountable piece of videojournalism. The other is something entirely different – a film that eludes category altogether.

Enemies of the People, a collaboration between experienced BBC documentarian Rob Lemkin and senior reporter for the Phnom Penh Post Thet Sambath, traces the cautiously developed relationship between Sambath and Nuon Chea, Pol Pot’s Brother Number Two and one of the chief architects of the Khmer Rouge. Sambath travels to the killing fields to meet and talk with the simple farmers asked to act as the executioners – mere cogs in the Khmer Rouge’s grand program. These men and women have lived with the stench of death – literally – for decades.

Rob Lemkin, who accompanied Sambath to the killing fields and documented the exorcising and visceral disclosures of violence from these kindly, giving people, said:

“The most important thing is that all times there was totally informed consent. That’s important with filmmaking of this nature. There must be a consensual nature where people could be unburdened and be feel free to talk about past crimes and past atrocities that they have been forced to live with. Informed consent for people who don’t have electricity in their houses, who don’t watch television, who don’t actually understand filmmaking, is quite complex. So at all times when we were filming I was showing the tape back and we were discussing constantly.

“The film making process was actually quite a small part of a much bigger process. They had signed up with Sambath to tell the truth for the world and for their society and for their country. They were on that process when I met them. All the time, that was the primary process. On a personal basis, telling the truth would not only help them to deal with their own guilt and trauma but would also attempt to bring some light to the period and contribute to the social good in some kind of way. All times these people all felt that the film making was always just a kind of that bigger process.”

The other is Catfish, a collaborative film between brothers Nev and Rel Schulman and their friend Henry Joost. Catfish is filmed with pocket camcorders, documenting the unfolding romance between Nev and a mysterious girl called Megan – a Facebook friend who becomes something much more intimate. It has began to be recognised as a film that explores the consequences of social media. Equally, the consequences of documenting reality are exposed.

Catfish has received months of festival buzz. Conversations have centered, repeatedly, around what kind of film it is. Is it a documentary or a fiction? Is it scripted, or were the filmmakers skilful and committed enough to film a narrative which seemed to write itself? Or, is it an ornate hoax – a mockumentary of grotesque proportions?

As the New York Times critic A O Scott writes: “Judged by the usual standards, it is a wretched documentary: visually and narratively sloppy; coy about its motives; slipshod in its adherence to basic ethical norms. The filmmakers, who occasionally appear on camera, shoot and edit with at least minimal competence, but their approach to the potentially volatile and undeniably exploitive implications of their stumbled-upon story is muddled and defensive. Shame on them, if that would mean anything to them.

“But at the same time — precisely because of these lapses — Catfish is a fascinating document, at once glib, untrustworthy and strangely authentic.”

But the film’s purposefully unconstructed, almost brash familiarity has a lineage. Catfish recalls the masterful Shirley Clarke’s documentary Portrait of Jason, in which an aging, Afro-Caribbean hustler from the wrong side of New York is exhorted to tell to the camera his most intimate feelings and baring vulnerabilities. The difference is – Jason was filmed in one evening, Catfish over the course of a year. Inference asks how considered this path of discovery truly was.

On its reveal when Nev and Megan are finally united, the film as a whole shits a gear, gaining sensitivity and some sympathy; it has little choice but to. But nevertheless, the queasy sense of voyeurism when watching these scenes is almost over-powering.

“They weren’t aware we were shooting for the first 30 seconds,” says Henry Joost. “We said to them, we’ve been making a documentary up this point and we’d like to tell your point of the story. Is that ok?

“I felt, when we found out what was going on, that we had to really take a step back, and let this person tell their story, and be documentarians.”

We’re never shown this moment of consent, and this begs questions. Did the filmmakers have a right to document the reality they found? How much did they manipulate it with dramatic conventions like, for example, editing? The subjects who become key cogs in the film’s machinations were asked to sign release forms before the film could be released. They have been absent from public view since. Only one interview was granted (for the ABC programme 20/20), and the word ‘schizophrenia’ was used in the course of it. Should this reality have been redacted or, as with Claude Lanzmann’s //Shoah//, did the compelling nature of the truth revealed act as justification in itself?

As A O Scott writes: “Mr. Shulman and Mr. Joost will continue to enjoy the success and cachet of having made a pop culture conversation piece, which is a tribute to their good luck and nimble opportunism. But the dark genius of their film lies elsewhere, beyond the parameters of its slick intentions, in the wild social ether where nobody knows who anybody is.”


Trial and Error

Just to prove I have the  determination and sticking power to write an essay as tear-jerkingly, eye-scratchingly boring as this. Please give me a job.

A study into how and why legal restrictions are imposed upon journalists when reporting in Crown Court cases

1.1: Democracy and civil liberties
A practical definition of democracy is a system in which two fundamental rights are guaranteed, that of the freedom of the individual to express themselves and the right of the individual to a number of civil liberties.

The problem is that these two rights can, and often do, stand at odds with each other. Freedom of expression, if pursued to the nth degree, has the potential to impinge on an individual’s right to privacy or right to a free trial. Conversely, if someone defends their civil liberties too vigorously, the over-arching principle of freedom of expression can be undermined.

This paradoxical relationship is expressed in one of the most influential pieces of legislation in regards to our understanding of democracy, the European Convention on Human Rights (1950). Article 10 of the convention reads:

1.    “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.
2.    The exercise of these duties, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society in the interest of national security…the prevention of crime or disorder…and the protection of the reputation or rights of others…”

Therefore, a fine balance between the two principles must always be sought, and this involves a constant and evolving process of compromise and negotiation accompanied by the hope that, in doing so, the dividing line will become increasingly more clearly defined.

This can be illustrated by studying the complex co-existence between the media industry, who have been characterised “as the eyes and ears of the general public who act on behalf of the general public,  ” and the legal system.

1.2: Open Justice and a Fair Trial

The same legislation  also established that every individual is entitled to a fair and open trial, identifying this as a central tenant at the heart of any democratic system.

In Britain, this principle has been around for a while. As Lord Hewart said in R. v Sussex Justices (1924) :

“… it is not merely of some importance but is of fundamental importance, that justice should not only be done, but should manifestly and undoubtedly be seen to be done.”

The principle that justice must be seen to be done is one of the most pervasive axioms of the administration of justice in our legal system. It is the origin, in whole or in part, of numerous substantive rules (the most recent and obvious example being the Freedom of Information Act). But how, in a practical sense, is this facilitated in a court or newsroom as part of the day-to-day, habitual workings of a democracy?

The short answer is an uneasy, and occasionally fractious co-operation. The legal system has a responsibility to ensure it stays true to the principle of open justice, but equally the media industry has a responsibility to ensure that it doesn’t take advantage of their privileged position and adversely impact on the workings of the justice system. As Lord Justice Judge said: “Restrctions must be respected but they must only be put in place when there is absolute necessity for doing so in an individual case.”

This report intends to outline the various mandatory and discretionary restrictions which a journalist has to comply in UK law, as well as a brief insight into areas where the law or the media industry may leave something to be desired in a quickly changing sociological landscape.

Mandatory Court Restrictions

2.1 Pre-Trial Hearings

When covering a preparatory hearing in the crown court, restrictions known as the seven points come into play. These statutory restrictions are designed to safeguard the defendant’s right to a fair trial. The seven points  apply unless the Court dismisses the charges or, for whatever reason, decide to lift the restrictions in the interest of open justice.

The seven points include names, addresses and occupations of the defendants and witnesses, the offence, bail conditions and lawyers, previous convictions and the decision of the court regarding committal.

In some more serious or complex cases, preparatory hearings at Magistrates’ can be bypassed in what is known as a plea and directions hearing. This is regarded as a time-saving exercise and allows the accused to give his plea at Crown Court. The same restrictions generally apply.

2.2: Sexual Offences

The key legislation involved with this is the Sexual Offences (Amendment) Act 1976 and the Sexual Offences (Amendment) Act 1992.  The cardinal rule laid down by this legislation is providing the alleged victim with life-long anonymity, unless requested otherwise.

As long as this general principle is strictly adhered to, then problems will be avoided. However, complications can arise when there is more than one complainant.

Restrictions can be lifted if the complainant chooses to waive their rights to anonymity or, with the consent of the defence, the judge feels it is in the public interest (to encourage witnesses of the crime to come forward and testify for example). Care must be taken though, if there is more than one complainant. If one of a number of complainants waive their right to anonymity, the journalist must be careful that, through naming one complainant, others are not exposed by association.

Absolutely any information which could feasibly provide an indication of the identity of the victim is prohibited. As such, the judge may also decide to restrict the identity of the defendant if they have some sort of personal relationship with the complainant such as a familial tie.

Generally speaking, though, a journalist is free to name the defendant in the trial. This is a contentious issue, and there are question marks over the ethics of naming someone who has not been found guilty of a crime that (justifiably) has such powerful social stigmas attached to it. On occasions there have been cases of high profile personalities who have seen their careers thrown into jeopardy, despite them being found not guilty of all charges.

The case of the current Cardiff City football manager Dave Jones is a good example off this. When working for Southampton FC, Jones was accused of a series of sexual offence charges dating back to his time as a social worker in Merseyside. It emerged later the charges were trumped up by people attempting to win compensation erroneously.

As a result of the trial, which attracted massive media publicity, Jones lost his job and attributed the death of his father to the stress of dealing with the trial. As Jones said in a recent newspaper interview:

“Never again will I use the phrase ‘no smoke without fire.’”

3.0: Discretionary Court Restrictions

Apart from trials mentioned above, a court can be considered as ‘open,’ unless the judge takes deliberate steps to prevent it. Although for the vast majority of court proceedings the principle of open justice is strictly adhered to, there are a number of exceptions when a judge can depart from this principle and impose restrictions on a reporter.

3:1: Contempt of Court
Contempt of Court legislation guards against the improper interference with the administration of justice. The Contempt of Court Act 1981 prevents the media from reporting any information that may create a substantial risk of serious prejudice, in order to uphold Article 6:

“Judgement shall be pronounced publicly but the press and public may be excluded from all or part of the trial…or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.”

Publication of a contempt can be either a criminal or a civil, and can result in a fine or a prison sentence. At common law there are three offences of criminal contempt:
1.    Interfering with ‘pending or imminent’ court proceedings
2.    Contempt in the face of court
3.    Scandalizing the court

Contempt laws can be perceived as the courts’ attempt to avoid what has become known as a ‘trial by media.’ Although there is a debate surrounding how much the courts are affected by exterior reporting, there have been notable incidents of “frankly unacceptable ” reporting that has surrounded high profile trials like that of Ian Huntley and Maxine Carr in November 2003.

The difficulty, however, lies in defining such risk or prejudice. It is a justified question to ask whether a jury are really that influenced by what they read in the morning papers. Is the law suggesting the average member of the public or a jury is so malleable that they will be biased by all they read, see or hear?

3.2 Section 11 orders

This refers to section 11 of the Contempt of Court Act 1981 and, in the most simple of terms, ensures that the name of a defendant is not made available to the public domain:

“In any case where a court (having power to do so) allows a name or other matter to be withheld form the public in proceedings before the court, the court may give such directions prohibiting the publication of that name or matter in connection with the proceedings as appears the court to be necessary for the purpose for which it was so withheld.”

Inevitably, this order cannot be passed if the court has already permitted the individuals to be named. This is normally used to allow witnesses to testify without allowing their name to become mixed up in the trial, or if the case involves a blackmail and the victim wishes to give evidence.

An example of a section 11 being used was in the Trinity Mirror Case (2008) , when the presiding judge agreed to protect the identity of a defendant in order to protect his children’s reputation during a trial for indecent images of children. The order was overturned on appeal.

This raises an important question of whether these restrictions are always justifiable, and whether a judge uses the correct criteria in order to make an informed decision. There has been increasing evidence of section 11 orders overturned after a journalist has formally questioned the right to their existence.

3:3 Children and Young Perons Act (1933) Section 39 orders

This order relates to juveniles (under the age of 18) who are concerned with a case, such as a defendant, witness or victim. A judge can grant the anonymity for such juveniles in cases where their welfare may be compromised. However, it is important for a journalist to remember that a section 39 order should not be imposed automatically because a juvenile is involved in proceedings.

There have been a number of recent cases when the order has been overturned, such as the R v Southward Crown Court case.

As Lord Justice Lloyd said in the case of R v Lee (1993): “If the discretion under section 39 is too narrowly confined, we will be in danger of blurring the distinctions between proceedings in juvenile courts and crown courts.

Lord Justice Simon Brown, presiding over the Winchester Crown Court  case, highlighted six principles on how to judge whether a section 39 should be imposed . The most central of these is situations when the order is lifted at the end of a trial and the identities are revealed to the general public. This happened with the case of Jamie Bulger (1993).

3.4: Section 4(2) orders

This is also known as a postponement order. A postponement order is used when a court feels there is a substantial risk of prejudice or the chance of a trial being fair and uninterrupted by external influences. A section 4(2) order has no limited time period and, in the case of a fraudulent solicitor at Bristol Crown Court (2001), was postponed for four years while 21 former employees were tried.

It has been stressed that 4(2) should not be used to protect the welfare of a defendant. As Lord McCullum said in 1997:

“An attack on the accused by ill intentioned persons cannot be regarded as a natural consequence of the publication of the proceedings of the court, and the danger of its occurrence should not cause the court to depart from well established principles.”

Section 4(2) was passed before the days of the internet, digitalisation and the modern 24-hour news industry, and this has left the legal system in a quandary it is struggling to deal with.

The internet has provided the general public with the ability to access and share unprecedented amounts of information, and this can result in a kind of ‘lynch mob’ mentality when information that has not been reported by the media has been leaked into the public domain. This was most recently seen in the case of Baby P, which had a section 4(2) order assigned to it. Despite this, details of the child’s parents were leaked and made available to millions despite the restrictions placed on their identities by the presiding judge.

Eventually the law will have to answer an increasingly more pressing question. Whose interests are greater – the public who may be threatened or the criminal who may be exposed?

In conclusion, the relationship between the media and the legal system is at best an uneasy marriage, as it articulates the tensions between the right of freedom of expression and that of civil liberties expressed in Article 10 of the European Convention of Human Rights.

As an increasingly empowered public cease to rely on the conventional media as their “eyes and ears,” the law will have to soon adapt to make sure it does not begin to be regarded as increasingly archaic and easily avoidable aspect of modern society. If not, there is a risk that the media will cease to worry about remaining squeaky clean when rogue elements of the digital revolution start to take matters into their own hands.

Nevertheless, as long as the age-old principle of open justice continues to be the central tenant on which the relationship is founded, we cannot go far wrong. As Lord Halsbury, in the case of Scott v Scott (1913) said:

“…publicity is the very sole of justice…and the surest of all guards against improbity. It keeps the judge himself, while trying, under trial.”


Welsh, Greenwood and Banks Essential Law for Journalists  (Oxford University Press: 2007)
Bloy, Duncan Media Law (Sage Publications, London: 2007)

Cardiff’s Pandora

The following is a few small anecdotes and observations I wrote for the section of the trainee paper I write for that we refer to as the Diary. Its my paltry stab at Private Eye reporting. Peter Cook, eat your heart out.

It can be a frustrating thing to live with a guy who’s a little work-shy. We’ve all been there – got in late after a long day only to find the sink piled high with dirty dishes, your last cookie freshly eaten, and the bathroom covered in razor trimmings.
It’s always difficult to know how  to approach it. There’s either the softly, softly approach, where you occasionally drop in a veiled comment about the rotting chicken carcass on the kitchen side a week after it was cooked, or there’s the note-leaving approach: “I’ve decided to call our resident mouse Ringo. We’re now knee deep in beer bottles and half-eaten kebabs. Do you think you could maybe…”
Alternatively, there’s the “get really angry and tell them they’re a lazy good for nothing and you can no longer stand to live in a house pigs would turn there noses up at” approach. It can be the most effective way forward.
However, if you possess a temper, proceed with caution. Just ask Andrew Cohen,43, of New Road, Porthcawl.  He got two-and-a-half years for stabbing his lazy flatmate in the arm with a kitchen knife after a conversation about housework.  In mitigation, his lawyer said: “Andrew Cohen was simply trying to carry out the wishes of his landlord.”  At least he drove the point home.

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The Revolution and Yellow Journalism.

Wrap Yourself in My Web

“Every act of creation is first of all an act of destruction.”  Picasso

The digital revolution is the catch-phrase for one of the most, if not the most fundamental developments in the history of the media industry. In its simplest form, the digital revolution can be characterised as two new technologies working in tandem. The first is digitalisation, which is the ability to store large amounts of information such as video, text or audio in computerised form. The second is the internet, which is primarily a distribution system that allows such information to be communicated over vast distances and between people whom are incapable of trading physically.

The ontology of the digital revolution is already a fascinating one. Twenty years ago, when it was little more than an embryo, the word that most succinctly defined the world’s interrelations was ‘wall.’ Ten years ago, the revolution was beginning to take hold and the defining word was ‘net.’ Today the word is ‘web,’ a complex and intricate framework that gains its power from its ability to link one strand to another.

Nevertheless, digitalisation is still a very new revolution in the throes of one of a series of metamorphoses. As journalists begin to grapple with the concepts of convergence, multimedia and user-generated content as they attempt to harness its far-reaching potential, it is a near-certainty that the media industry of today will be almost unrecogniable in ten years time.

Perspective, however, is always helpful. Throughout the twentieth century the only other technological invention of comparable significance to the media was that of the camera. One of the first acts of the Lumiere Brothers, the founding-fathers of the camera, was to film a train drawing in to their local station. When the sequence was first screened to an auditorium, the audience fled for the exit screaming. They thought the encroaching train would perforate the cinema screen and trample them underfoot.

In comparison, The New York Times recently published an article indicating that nine-year-old children are now using You-Tube as their primary search engine rather than Google. The emerging generation are perceiving news and events primarily in images and sound, using words as an auxiliary reference-point.

In his lecture, Simon Lewis talked about Barack Obama’s harnessing of social media sites like You-Tube throughout the American Presidential elections in 2008. He cited the influential online-journalist Arianna Huffington, who said:

“Were it not for the internet, Obama would not even have been able to stand for the Democratic nomination.”

Obama’s adoption of the digital revolution, when it was barely considered as a campaigning tool by Kerry and Bush in 2004, illustrates the sheer pace at which the political and media worlds are changing.

We are going through a process of creative disruption, and within this period of relentless and impatient change there are inevitable casualties. It appears to be those journalists who have spent their careers working in print, and who have grown overly accustomed to a certain template, that are looking nervously over their shoulders.

The regional newspaper industry has seen a drop in circulation of 51% since 1989 (the birth year of the internet) and the number of national papers have reduced dramatically. As older generations die out and their children grow to be progressively more I.T and media-literate, it seems likely that the trend will continue. This has resulted in the well documented cutbacks and enforced redundancies as many titles struggle to make a turnover.

Is it fair, therefore, to draw a direct correlation between the birth of the internet and the death of printed news?

The short answer to this question is no, good journalism is not the first casualty of the digital revolution. As I have mentioned, we are going through a process of creative disruption, not destruction. Each time a new technological format is phased in, including photojournalism, radio and television, someone has confidently anticipated the end of journalism as we know it. So far, this has not happened.

Journalism, or at least good journalism, is at heart a process of disseminating and reforming facts to tell a story that others will find interesting and informative. Storytelling has been around for as long as human beings have possessed the ability to communicate verbally and, from that day onwards, technology advancements have provided us with different, broader and more varied ways of telling that story. The digital revolution should then in theory be wholly welcomed by the industry.

The unfortunate truth is that journalism, at the current time, has slid into a state of apathy, dogmatism, arrogance and complacency. It has cut too many corners, taken too many things for granted and accepted half too often. Because of the ability of the digital revolution to empower individuals through information-finding sites like Google, self-publishing sites like WordPress, and social-media sites like Twitter, many of the tricks that have become commonplace in the media industry have been exposed to the clear light of day. Journalism, deservedly so, is experiencing a profound sense of impotence, and its response appears to be to go on the defensive. This is the wrong reaction.

Journalists, as Charles Reiss reminded his audience during his recent lecture with the phrase “the trust remedy and the trust deficit,” are less trusted and less respected than any other profession in Britain, with the exception of politicians and estate agents.

This damning fact can only be blamed on one thing; journalists themselves. As always, the conduct of the few have impacted on the many. Numerous complacent, lazy journalists (whom, it has to be said, are generally connected to tabloid newspapers) have been guilty of taking advantage of the unregulated press system afforded them and have indulged in bias, inaccuracy, sensationalism, trivialisation, repeated invasion of privacy and cheque-book journalism. This unabashed form of yellow journalism, coined as ‘churnalism’ in Nick Davies’ Flat Earth News, has severely corroded the public’s perception of press standards. As Andrew Marr writes in My Trade:

“Journalism includes people who think of themselves as part of a noble elite of truth-seekers and secular-priests. It also includes drunks, dyslexics and some of the least trustworthy and wickedest people in the land.”

There are, however, far more consequential and far-reaching cases of bad journalistic practice. Richard Tait, in his lecture British Journalism after Hutton, highlighted that it was Andrew Gilligan’s lack of comprehensive notes, a fundamental aspect of good journalistic practice, that was the route-cause to the way his source’s revelations were taken out of context.

Similarly, Justin Lewis in his lecture Research and Good Journalism, talked of “the fetishisation of the image,” highlighting how the destruction of Saddam Hussein’s statue by American soldiers after they had ‘liberated’ Baghdad was a contrived and staged image.

The world's media depicted this as the moment of the liberation.

The world's media depicted this as the moment of the liberation.

Kurds had been shipped down to condemn the statue. The square was virtually empty as Iraqi's struggled to come to terms with the occupation.

Kurds had been shipped down to condemn the statue. The square was virtually empty as Iraqi's struggled to come to terms with the occupation.

The final paragraph of Ian Hargreaves’ A Very Short Introduction to Journalism reads:

“There is a Chinese Proverb about the dangers of failed leadership: that the fish rots from the head. In complex modern democracies, this is not so. We are living in the age of the network and the age of the virus, which can strike anywhere and spread in any direction…Against such viruses, reliable, accurate, truthful journalism is the only known antidote.”

The identity of the journalist may be changing, and the traditional newspaper will have to become something more akin to a viewspaper- an aggregator of both professional and public opinion on a range of subjects and issues.

Journalism should remain as the fourth estate in a pluralist democracy but a new era of market regulation is needed, preferably with a stronger Press Complaints Commission. Forcing the industry to climb down from its high horse may be a positive step. The reality is we have lost our monopoly of comment, and a bigger part of our job is now to listen to and collate the collective conscience of the consumer. Those who understand and embrace this will be at the forefront of the next step in the revolution.

The lexicon of a modern journalist would sound like the dialogue from a bad sci-fi film to his counterpart in the pre-revolution 1980s. Terms such as ashtray, carbon paper, evening deadlines and spikes have been replaced by vodcasting, podcasting, surfing, downloading, tweeting, blogging, YouTubing and Googling.

But it is worth remembering that these words remain on the periphery of a journalist’s language. The essential language- the words that our vocation revolves around- are still very much the same as they were 20 years ago or, for that matter, 100 years ago. Truth, accuracy, honesty, integrity, objectivity, curiosity, creativity, audience and innovation are all very old words in journalism. More than any technological advancement, they have helped to make the globalised media industry, for all its imperfections, what it is today. The industry needs to reabsorb these first principles and place them again at the forefront of our trade. Only then can the digital revolution help journalism to rediscover its place in the modern web of society.

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