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defamationThe documentary film Under the Gun, narrated and executively produced by Katie Couric, premiered in January 2016. In September of that year, it was hit with a defamation lawsuit.

According to the Hollywood Reporter, the suit centers around eight seconds…of silence.

The article states that the film shows Couric asking several members of the Virginia Citizens Defense League about background checks, but they are shown in silence as if unable to formulate a reply.

As another article in the Hollywood Reporter explains, the people in question are claiming defamation on the basis that they did answer the question and that the eight seconds of silence “were misleading and misrepresented” the plaintiffs’ views and expertise in the subject.

If you’re a filmmaker with a work that’s likely to create heated debate, here are a few things to consider before you release your film.

Playing with Fire(arms)

Documentary filmmakers have never shied away from controversial subjects. In fact, it is generally their desire to weigh in on a controversy that gives rise to the film in the first place.

That controversy comes with a cost, however. When you have real individuals on the record about a highly charged subject matter, your exposure to legal claims, such as defamation, rise.

In today’s socially connected world, strong opinions—especially unfavorable ones—can have a very real financial impact on people. Think back to the dentist who closed his practice after lion hunting in Africa brought him unwanted attention.

The consequences of having your reputation tarnished are increased when the medium is film. And if the offended party believes that damage has occurred because of false and misleading statements, you may have a defamation lawsuit on your hands.

You Say It Best (When You Say Nothing at All)

Before you think avoiding defamatory statements is an easy matter, it’s important to know the legal definition. Defamation is essentially a catch-all term for any statement that hurts someone’s reputation.  As this case shows, you can actually be sued for defamation without actually making a verbal statement.

The crux of the defamation lawsuit hinges on whether those eight seconds of silence intentionally misled audiences about the competency of the Virginia Citizens Defense League members.

Consider the Hollywood Reporter’s own review of the film after its premiere at the Sundance Film Festival:

A group of blustery members of the Virginia Citizens Defense League, however, suddenly remain painfully quiet when Couric asks them the hard questions.

The lawsuit claims that, in portraying the members as unable to respond, the film gives the impression that they are unfit to weigh in on matters of firearms law (including background checks).

As the Hollywood Reporter explains, since one of the members is a licensed firearm dealer and the other is a lawyer specializing in Second Amendment claims, the claim is that their reputations have been tarnished in a material way. As this case demonstrates, you need to carefully consider how your film can be interpreted in order to assess your lawsuit risk.

Defamation and Actual Malice

This case also serves as a timely reminder of the legal landmines surrounding defamation and how guilt is determined.

Defamation claims don’t have to show that you deliberately intended to harm the person in question. In fact, defamation claims aren’t required to prove that you knew the statement was false.

The law provides for claims when the accused has acted irresponsibly with his or her statements (or choice of editing).

You can risk this kind of defamation when you…

  • Act with reckless disregard for the truth, which means you had doubts about your statement’s veracity but went forward anyhow.
  • Act with negligence, which means you didn’t bother to check whether what you presented was true.

The rules for defamation can be tricky based on whether the person in question is a public figure, and the laws vary from state to state.

The best defense is a solid legal analysis of the risks before your film exposes you to lawsuits. A script clearance report does exactly that by examining your script for defamatory references as well as other forms of liability, such as trademark and copyright infringement.

Order a Script Clearance Report today, and rest easy about what your film has to say…and what it doesn’t say at all.