Informed Consent: Must or Myth? by Willemien Sanders

Found this article online when I was researching informed consent issues that came up after watching and reading about Titicut Follies and the ensuing court cases. According to Sanders, informed consent originally comes from the world of medicine, and this is borne out by the fact that an online search mainly produced results for the medical profession (primarily in the fields of clinical research or the initiation of medical procedures). In this regard, informed consent consists of 4 main components:

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;

4. competence: the participant (or alternatively a responsible guardian) should be competent to understand the information given and to consent or refuse.

Since the making of documentary (here Sanders is discussing film, but I see no essential difference between filmmaking and photography regarding the concept of consent to feature in images that will later be published/broadcast) necessarily requires exposure of persons and situations, there cannot really be anonymity or confidentiality to any great extent. Of course, there are methods of protecting identities that are used in documentary, such as blurring or pixellation of facial features or the use of an actor’s voiceover or speech distortion techniques, but these are used minimally, since an entire film which featured such anonymous subjects would probably be regarded with suspicion and certainly fail to convince the viewing public. The other major difference that Sanders points out is that there is no prescribed procedure or method, which makes the very notion of informed consent in documentary dubious from the outset.

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. (p 10)

I would certainly agree with the first part of this, since very often a project begins and then the focus of the project or what the creator decides needs to be shown can shift, dramatically or otherwise. Having a clear view on the subject may (and often does) come about as a result of being in the vicinity of and learning about the participants – this for me is part of the collaborative process (or performative process) that makes documentary production such a fascinating and enlightening experience. The second two reasons are not part of my own experience, but I can see how they would have to be factored in to the ideas about consent and collaboration.

There is also the issue of how the material will eventually be shown to audiences, control over which the filmmaker may have little or none, and how the audience will perceive what is being shown to them. There is also the aspect of events themselves changing or taking a different course precisely because the filming is going on (note my experience with people being reluctant to repeat what they have told me once the camera and microphone are recording their exact words!). one thing I have learned as a photographer of people is to be flexible and open to any new experience and willing to participate in activities that may seem of little value, since there are always photographic opportunities, and part of the work of creating persuasive documents is building a rapport with the participants, and this sometimes means taking the kinds of photographs they want to have as a result of the collaboration – images they can show friends or post to social networks; I’d be a pretty mean photographer if I refused that courtesy!

Does telling the whole truth about a documentary project lose access to those participants? Can it then be ethically viable to continue the project? Sometimes explaining everything simply takes too much time and effort, or the participants can become concerned with the techniques of photography or narrative structure. There is also the concern that participants may become camera conscious and either ham it up or become inhibited; ignorance can be a source of spontaneity.

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. (p 11)

Why is that? Why do they find it hard to explain the benefits? Surely one of the conditions for participation is an understanding of how the final images can assist if not the participants personally, then at least their extended families or communities or social group. Otherwise what is the point – where is their gain? In trying to think of some possible examples of this particular scenario, I can only envisage some primitive groups whose geographical remoteness makes it difficult for them to comprehend wider conservationist and ecological issues surrounding a documentary that is focused, say, on raising awareness about the need to protect their livelihoods and immediate ecosphere. To me this is the informed part of consent.

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. (p 11)

This is something that I can understand, but something that I am very sensitive to. I always try to agree beforehand which images will be used so that there is no comeback and no feelings of betrayal or deception or misrepresentation. Some filmmakers don’t seek consent when they are trying to reveal a situation, behaviour or attitude; under these circumstances, the greater good is seen to outweigh the participants’ rights (this goes back to notions of ends justifying means that I touched on with Wiseman’s Follies case).

Interestingly, Sanders notes that many of the filmmakers she interviewed related the paying of participants to their voluntariness; some of them viewed it as no inhibition, while others viewed it as such and so refused to pay; still others viewed payment as compensation for lost time or income. There were also those who gave gifts. I have a problem with the whole idea of payment and gift-giving, and the only gifts I generally give are the photographs or film at the end of the exercise. On the other hand, all of the families I am working with invite me into their homes and give me tea, snacks and sometimes a full meal. It would be ignorant of common cultural practice and impolite for me not to return the gesture and turn up empty-handed; as such I try to take along at least a box of chocolates or a cake. I view this as a gesture of courtesy rather than being in any way related to the fact that I am making documentary and am somehow rewarding their support.

On the issue of competence to consent, Sanders noted that some filmmakers come to mutual agreements with the children they are filming, even though the consent has been given and signed by the parents. This is a slippery slope – once you begin undermining the authority that has given consent, you risk having access restricted or even withdrawn while spoiling your own reputation as well as that of documentary/journalism as a whole.

As such, Sanders’ overall position is that informed consent with regard to documentary is more 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. (p 12)

In my case, I think consent will be to which scenes or images are to be used, and it will be an agreement between me and the participants (who are able to consent) or the parents. At the moment I am working on a loose draft of a consent form in Russian, trying to remove anything that looks oppressive or suspicious, but keeping the essence of a legally binding contract. I may also have to look into local legislation, since everything in Kazakhstan has to be notarised before it is even considered a legal document. Fortunately I have a number of students who are law professionals and whose advice I can consult.

Sanders offers a more flexible approach to the fixed one-way system of informed consent, where the participants are empowered to inquire of the filmmaker’s professional qualification, meaning that uncertainty can be agreed to if the participant has faith in the overall ability, motivation and accountability of the filmmaker. This, she posits, is to be achieved through communication and dialogue – which is exactly how I am proceeding at the moment.

Gross et al (1988, pp 3-33) identify four categories of invasion of privacy, which they see as instrumental in analysing issues of image ethics:

  • Intrusion – intrusion into one’s private space, or even into one’s privacy while one is in a public space if one has not consented to being filmed or photographed.
  • Embarrassment – the disclosure of true but embarrassing facts about individuals, when these facts are
    not deemed to be of legitimate concern to the public.
  • False Light – the claim that one has been placed in a false light by images which distort the truth and create false impressions of one’s intentions, character, or actions.
  • Appropriation – the use of a person’s likeness that results in depriving that person of some commercial benefit, or making a profit at that person’s expense.

They also pose the question of whether informed consent really justifies intruding into and exposing the lives of people less well off than the anticipated audience, even when those subjects hope that the production of such imagery can in some way help to ameliorate their situation. What rules concerning the respect of privacy or accountability should be applied when the documentarian is a member of the very family or marginalised group that is the subject of the imagery. Who really benefits most from the publication of images that show society’s marginalised and vulnerable groups?

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