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Ethical Learnings from or ton Informed Consent for Make Benefit Filmand Television ProducersMark CeniteaaWee Kim Wee School of Communication & Information, Nanyang Technological University,

To cite this ArticleCenite, Mark(2009) 'Ethical Learnings from Boraton Informed Consent for Make Benefit Film andTelevision Producers', Journal of Mass Media Ethics, 24: 1, 22 39

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Journal of Mass Media Ethics, 24:2239, 2009

Copyright Taylor & Francis Group, LLC

ISSN: 0890-0523 print/1532-7728 online

DOI: 10.1080/08900520802689365

Ethical Learnings from BoratonInformed Consent for Make Benefit

Film and Television Producers

Mark CeniteWee Kim Wee School of Communication & Information

Nanyang Technological University

When is it ethically justifiable to mislead participants about the nature of a film

or television program? Producers of the 2006 film Borat: Cultural Learnings of

America for Make Benefit Glorious Nation of Kazakhstanused brilliantly crafted

releases to undermine potential fraud claims from participants misled about the

comedy. This article argues that if portraying participants can result in foreseeable,

substantial negative consequences for them, the portrayal must serve an overriding

public interest. The test is applied to scenes inBorat.

The British comedian Sacha Baron Cohen plays obnoxious, clueless characters

mostly in real-life encounters with ordinary people who have signed appearance

releases not knowing he is a comedian and they are part of the joke. Cohenused this formula to portray Ali G, a white man who more or less affects the

manner of an urban black rapper. Ali G got his own internationally distributed

television program, in which Cohen also played Borat, a television reporter

supposedly from Kazakhstan, and Bruno, a gay Austrian fashion designer. Borat

journeys across America in the 2006 filmBorat: Cultural Learnings of Americafor Make Benefit Glorious Nation of Kazakhstan, holding up a mirror to Amer-

icans through reactions he provokes. The film was an international commercial

Correspondence should be sent to Mark Cenite, 31 Nanyang Link, Singapore 637718. E-mail:

[email protected]

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ETHICAL LEARNINGS FROM BORAT ON INFORMED CONSENT 23

success. It was acclaimed by critics and nominated for an Academy Award for

best adapted screenplay (Academy of Motion Picture Arts & Sciences, n.d.).

While concentrating on examples from Borat, the first feature film of its kind,

but not confining arguments to it, this article explores ethical issues raised by

how producers of such works get participants.

Issues related to whether participants are fully informed about what theyare getting into when they consent to get involved are common in journalism,

documentary and reality televisionin any genre with nonfiction elements.

Participants always risk being cast or perceived in ways they did not anticipate.

Controversial surprises have occurred in reality programming when participants

who signed away all rights find editing has distorted their stories. For example,Ruthie Alcaide, whose drinking on the 1999 The Real World: Hawaiibecame

a focal point of the season, has claimed that she was misrepresented (Fletcher,

2006). Segments of Comedy Centrals fake news shows, The Daily Show withJon Stewart, and its spin-off, The Colbert Report, are prominent examples of

work that use the same basic formula for some interviews; only after signingconsent forms and participating do people find they were part of a comedy and

that they were targets of a joke. Bill Mahers 2008 film Religulous, directed by

Borats director Larry Charles, also relies on less than fully informed consent

(Goldstein, 2008).

This article proposes a test for determining when it is ethically permissible

to deceive participants in such works and applies the test to scenes from Borat.To demonstrate how the producers protected themselves legally, this article first

discusses when an agreement between producers and participants can be voided

by misrepresentations in the negotiations, and shows how Borats producers

escaped liability. Drawing on ethical principles debated in regard to documen-

taries, journalism, and entertainment, as well as principles underlying Americanprivacy law, this article argues that including footage obtained without fully

informed consent can be justified in two cases: if the depiction is harmless or

if a public interestsuch as addressing an important social issueoutweighs

potential harm to participants.

SOME SCENES FROM BORATTHAT RESULTEDIN LITIGATION

Cohen first faced legal action for Boratfrom two University of South Carolina

fraternity brothers. The young men drank with some of the Boratteam at a bar

and then signed appearance release forms. The young men are shown picking up

Borat on the highway and drinking heavily with him in a recreational vehicle.The young men animatedly spoke about women and minorities in derogatory

ways and said it is a shame that America does not have slavery. After the

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films release, the young men sued for fraud, claiming that the producers

misrepresentations, including that the film would not be shown in America or

name them, voided their appearance releases. Their suits were dismissed under a

California law that bars legal claims based on expression about issues of public

interest unless the plaintiff can demonstrate likelihood of prevailing on the merits

(Doe v. One America Productions, 2006).In another sequence, Borat meets an etiquette coach. Then he is shown

attending a social club dinner in Birmingham. In the Alabama Supreme Courts

statements, the guests were told the film was a documentary being filmed for

Belarusian television about the experiences of a foreign reporter traveling in

the United States (Ex parte Sacha Baron Cohen, 2008, p. 2). After insulting aguest on her appearance, Borat excuses himself to go to the bathroom and brings

back what appears to be a plastic bag full of feces, asking where to dispose

of it. When Borats uninvited friend arrives at the dinner partya scantilyclad African American woman portraying a prostituteBorat is kicked out.

Guests sued for fraud and other claims, but complications related to standingand venue prevented the suit from going forward (Streit v. Twentieth Century

Fox, 2008).

Another case involves the films opening scene, in which Borat is shown

leaving his Kazakh hometown for America. It is actually filmed in a very

poor rural village in Romania whose residents speak limited English (Kole,

2006). They claim they were told it was a documentary about their poverty(LaPorte, 2006), and they did not sign releases (Barkham, 2006). Borat is seen

off by, among others, a man with an amputated hand; a man shown welding,

whom Borat calls the town mechanic and abortionist; and a woman he kisses

and identifies as my sister, number four prostitute in all of Kazakhstan. The

depiction of their poor rural lifestyle was in other ways embellished; a womanwas asked to bring a pig into her home and have her child pose with a toy rifle

(Kole, 2006). When Borat is shown returning home to the village in the final

scene, the amputee is shown with a new hand, a hand-shaped sex toy from an

earlier scene. The villagers filed a $30 million lawsuit, but their case foundered

when they were required to amend their complaint for failure to state a cause

(LaPorte, 2006).A scene in which Borat visits a Pentecostal meeting in Mississippi and feigns

being born again resulted in a suit over a three-second segment showing

the plaintiff, a worshipper, waving her arms in apparent religious ecstasy. The

court ruled, It is : : : undisputed that the defendants did not obtain the plain-

tiffs explicit permission to be featured in any other film except a religiousdocumentary that would be shown in a foreign countrynot a major motion

picture shown across the nation and internationally (Johnston v. One AmericaProductions, 2007a, pp. *23*24). Her case for misappropriation of her image

and false light invasion of privacy survived a motion to dismiss.

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LEGAL DECEPTION: APPEARANCE RELEASES ANDALLEGED NEGOTIATIONS

Agreements between video producers and participants, known as appearance

releases, are contracts whose enforceability is determined by well-established

general contract law principles. Underlying legal issues are crucial to understandsome of the core ethical issues this article concentrates on. Regarding his fake

news show, Stephen Colbert joked in an interview, We get people to sign

releases that basically say that we get their kidneys (Gross & Miller, 2005).

One might argue that the law allows Borats producers to lie to participants and

get away with it. Using fairly standard and sweepingly powerful language, therelease gives the producer rights to use the recorded material without restriction

in any media throughout the universe and through perpetuity and without liability

to the Participant. (Standard consent agreement, n.d.). It then disclaims 16specific kinds of liability, including defamation, false light, misappropriation,

and infliction of emotional distress. Other disclaimers appear specifically tai-lored to protect against liability for the deception Borats producers engaged in

(Standard consent agreement, n.d.).

The Borat team appears to have brilliantly avoided fraud claims. To prevail

in fraud, the defendant producers must have made false statements of matters

of fact fraudulently that are material and that relate to the present or past,

not the future: assertions about future events cannot be deemed contrary tofact (Farnsworth, 1990). If indeed the Borat producers asserted that the film

would not show in America, it appears that they knew that these arguably

material assertions were extraordinarilylikelyto turn out false because Twentieth

Century Fox was behind the production and the United States is a major film

market. Nonetheless, the producers were legally safe making such assertionsabout future events. The Borat release also contains a nonreliance clause in

which the participant acknowledges that she is not relying on any promises

or statements made by anyone about the nature of the Film or the identity

of any other Participants or persons involved in the Film (Standard consent

agreement, n.d.). The release also contains a merger clause, which reduces the

agreement to the written contract, stating simply, This is the entire agreementbetween the Participant and the Producer or anyone else in relation to the Film

(Standard consent agreement, n.d.). A principle of contract interpretation that

buttresses these clauses and makes pre-contractual statements irrelevant is the

parol evidence rule, which creates a legal presumption that evidence extrinsic to

the written contracti.e., evidence-regarding oral or written negotiations beforeit was signedis inadmissible to challenge (or supplement) a contract reduced

to writing (Farnsworth, 1990). Some may argue that Borats producers usedlegal loopholes to obtain consent, but the rationales for these various rules are

central in contract law: the need to reduce an enforceable agreement to one that

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is unambiguous and archived rather than one that is oral and turns upon parties

imperfect recollections, and the need to honor the final agreement rather than

preliminary negotiations (Farnsworth, 1990). It is only when one party appears to

deploy such devices to undermine another that they seem surprising and unjust.

WHEN IS LACK OF INFORMED CONSENT JUSTIFIED?

A common approach to media ethics cases is to attempt to classify the work

and then deduce applicable principles. Although their precise approaches differ,

many media ethics textbooks lay out ethical principles for each areafor ex-

ample, journalism, entertainment, advertising, public relationsand then applythem to cases (e.g., Christians, 2001; Patterson & Wilkins, 2005). Similarly,

ethics codes are largely domain specific. When a work is difficult to classify, asBoratis, this deductive approach may ultimately be inconclusive. Court decisions

document the ambiguity aboutBorats format (Johnston v. One America Produc-

tions, 2007b, p. *4, Johnston v. One America Productions, 2007a, pp. 1415).The ethics of consent in documentary, and the related area of journalism and

entertainment, will be examined. The purpose is not to offer conclusive answers

as to whether Cohens work is ethical but to inform the analysis. Scholars from

multiple ethical traditions agree that deception and lack of informed consent are

prima facie unethical. In deontological ethics, such practices violate individual

autonomy and affront victims dignity, treating them as means to an end (Kant,1785/1998). In utilitarian ethics, such practices can be justified only if greater

good results (Mill, 1863/2001). The analytical frameworks of documentary,

journalism, and privacy law mix utilitarian and deontological considerations.

These perspectives will be discussed before explicating my approach to theBoratformat.

INFORMED CONSENT IN DOCUMENTARY:PRINCIPLES AND QUESTIONS

The release thatBoratparticipants signed states it is a documentary-style film(Standard consent agreement, n.d.). The definition of documentary is contested

even by documentarians; for example Nichols (2001, p. 38) offers a definition

based on that of the early British documentarian John Grierson: a creative treat-

ment of actuality, not a faithful transcription of it : : : : Documentaries marshal

evidence but then use it to construct their own perspective or argument : : : ;

their own poetic or rhetorical response to the world. In defining documentary,Gross, Katz, and Ruby (1988, p. 20) speak of a contract between producers

and audiences that the image maker will be held to standards of truthfulness,

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while yet aspiring to art, that is, to a personal vision and statement. Because

of its admixture of fictional main characters (Borat and his assistant) and some

purely fictional scenes, Borat cannot be grouped with typical documentaries.

However, because it is partly a treatment of actual events (or at least partially

unscripted events) and arguably makes a statement, documentary ethics warrant

further examination.Questions regarding informed consent are familiar and controversial in docu-

mentary. For instance, can producers withhold information about the production

to help get participants, or portray participants in a different light than antici-

pated? (Gross, Katz, & Ruby, 1988). Anderson and Benson (1988, p. 81) note

a dilemma likely to arise in this genre: Without the informed consent of thesubjects, the form lacks ethical integrity; without freedom for the filmmaker,

it lacks artistic integrity. Nichols (2001) argues that ethics of documentary

production are more complex than ethics of fiction. Because participants appearas themselves, questions abound:

What will others think of you : : : What aspects of your life may stand revealed

that you had not anticipated? What pressures : : : come into play to modify your

conduct, and with what consequences? These questions have various answers,

according to the situation, but they are of a different order from those posed by

most fictions. They place a different burden of responsibility on filmmakers who

set out to represent others rather than to portray characters of their own invention.

(Nichols, 2001, p. 6)

Nichols simply defines informed consent as participants : : : should be told

of the possible consequences of their participation (p. 10). This is very bad

news indeed for Borat.

Among the most famous documentary filmmakers, Michael Moore has oftenbeen accused of misrepresentation, but the controversies are usually about por-

trayal of factual matters regarding public issuesfor example, the bin Ladenfamily members flights out of America after September 11, 2001 (Hitchens,

2004). Controversies about Cohens work, however, involve the process of get-

ting participants to appear or how individuals are portrayed after they give

consent.

There is no consensus among documentarians about ethical standards forunanticipated portrayals that are not false. Brian Winston (1988) takes what

is perhaps the most extreme position, arguing that more information about

possible consequences is required for adequately informed consent. He asserts

that documentarians duty to provide information about possible consequences

of participation is comparable to social scientists duty to research participants.

Although Winston acknowledges that his proposed duty of care would mas-sively reduce access to subjects (p. 284), he still supports it, saying decades of

documentaries have patently done more good to the documentarists than they

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have to the victims, [therefore] I see no cause to mourn a diminution of these

texts (p. 284). Winston argues that because documentary substitutes empathy

for analysis and privileges effect over cause, : : : it seldom results in any : : :

actions taken in society as a result of the program to ameliorate the conditions

depicted (p. 274). Similarly, Australian filmmaker Philip Noyce said he stopped

making documentaries because of the intrusion into peoples lives and becausethe subject inevitably doesnt always realize how the audience will judge their

behavior (Ryan, 2004).

Principles from Newsgathering Ethics

Documentary ethics are in some ways related to journalism ethics. Both focus

on actual events rather than fiction (Nichols, 2001), though most journalism

approaches lack the personal vision and statement of documentary (Gross,Katz, & Ruby, 1988, p. 20). The introduction of pure fiction precludes classifying

Borat as journalistic. However, journalism ethics are explored further because

some parts of the film are actual events. A court ruling for misappropriation,

or using a participants image without permission, corroborates that Borat hasqualities of journalism. When a New York pedestrian sued for a portrayal of him

as rude and frightened, a federal district court stated that it is beyond doubt

that Boratfits squarely within the newsworthiness exception to New Yorks

misappropriation law and clearly falls within the wide scope of what New

York courts have held to be a matter of public interest (Lemerond v. Twentieth

Century Fox, 2008, pp. 67). When the pedestrian sued, the court concludedthat though the film uses much childish and vulgar humor,

At its core, : : : Borat attempts an ironic commentary of modern Americanculture, contrasting the backwardness of its protagonist with the social ills af-

flict[ing] supposedly sophisticated society. (Lemerond v. Twentieth Century Fox,

2008, pp. 67)

The plaintiffs portrayal was deemed as serving the broadly defined public

interest, and the case was dismissed. This case demonstrates how public interest

is balanced with consent in newsgathering cases. Although the decision that thiscase served a public interest is not conclusive according to the ethical analysis

proposed in this article, it is a useful precedent for ethical reasoning.

A standard interpretation of the ethics of deception in newsgathering is that

it is unethical except when there is no other way to get a story that serves

the public interest (Black, Steele, & Barney, 1999). Boratmay be analogized

to undercover reporting, although the subjects of undercover reporting do notknow they are being targeted at all, whereas Borats participants do not know

the circumstances. The Society of Professional Journalists (1996) ethics code

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says, Avoid undercover or other surreptitious methods of gathering information

except when traditional open methods will not yield information vital to the

public (emphasis added). The San Francisco Chronicle, which has unusually

detailed ethics guidelines, has a three-part test for determining when journalists

are allowed not to identify themselves as such. It requires consideration of

public importance (Is the resulting news story or photograph of such vitalpublic interest that its news value outweighs the potential damage to trust

and credibility?), alternatives (Can the story be recast to avoid the need

not to disclose ones identity in gathering the information?), and last resort

(Have all other reasonable means of getting the story been exhausted?) ( San

Francisco Chronicle, 1996). This test is almost completely consequentialist; thepotential harm of undercover reporting is described as potential damage to trust

and credibility rather than harm involving deception. Similarly, Don Hewitt,

producer of CBSs 60 Minutes, defended journalistic deception that serves thepublic interest: Its the small crime versus the greater good (Smith, 2003,

pp. 283284). In American Privacy law, privacy rights are seen as limited bycompeting public interest concerns (Diaz v. Oakland Tribune, 1983; Time v.

Hill, 1967; Contrell v. Forest City Publishing, 1974). First Amendment cases

make clear that protection for expression on matters of public concern does

not depend on whether the content is entertainment or journalism: The line

between the informing and the entertaining is too elusive for the protection of

: : : [freedom of the press] (Winters v. New York, 1948, p. 510). In this article,the proposed ethical reasoning also requires balancing public interest concerns

with potential harms. The approach of journalists and the courts is even more

clearly consequentialist than approaches of documentary experts.

Consent and Entertainment

Ethics principles for entertainment are less codified compared to other fields, butin cases involving consent to appear, the standards are generally uncontroversial,

unforgiving, and involve no weighing of consequences. Typically, entertainers

make fully informed artistic choices rather than being cast in works that differ

from what they believe they have consented to. The ethical standard mirrors the

legal standard: consent is ethically obligatory and releases are legally advisablefrom all participants except those who appear incidentally in public; written or

recorded releases can head off legal action, especially for misappropriation of

participants images (Dehn, 2005).

Some may suggest that hidden camera shows can serve as a model for

work such as Cohens: producers get participants fully informed consent after

recording. Allen Funt, host of Candid Camera, which originated in the 1940s,said, We get 997 out of every thousand releases without pressure (Pryluck,

2005, p. 196). In MTVs Punkd, celebrities are recorded being duped into

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ridiculous situations, and all but a few ultimately consent to air the footage after

they have full knowledge of the situation (Another of Ashtons, 2004). The

hidden camera format, however, differs from the format discussed here in that

the ridiculous situations created are generally quite benign. By contrast, Cohen

sometimes provokes more controversial responses from ordinary people who

have little to gain from the publicity, so getting consent may be more difficult.

STANDARDS FOR A NEW GENRE

Fully informed consent is not an option in the Borat genre. It relies on less

than fully informed consent to survive and cannot be justified to those taking

a deontological approach that forbids deception. It is too much to require that

producers announce their approaches and goals, or attempt to anticipate andwarn participants of likely audience reactions, or obtain consent after recording.

Such requirements would effectively tame the genre: producers would likely

avoid sensitive matters and outraging participants. The ability of undercover

journalism and documentaryor new formats like Boratto reveal anythingwould be seriously compromised because airing of situations that make subjects

uncomfortable would be greatly diminished. The gotcha moment has potential

value, and participants should not be given total editorial power when a scene

serves a public interest. If the genre is to survive, and the argument here is that

it should continue because of its potential public benefits, then it can be justifiedin particular cases through consequentialist balancing of individual harms and

public interest. The purpose of this article is to evaluate when portrayals in such

works can be justified. The aim is not to change the minds of deontological

purists who believe that such justification is impossible but to address the choicesof those who have chosen to make a film relying on deception. Although they

have dispensed with deontological concerns such as fully informed consent, theycan still be ethically evaluated based on consequences. Entertainment ethics are

generally unforgiving of nonconsensual portrayals, but in newsgathering and

documentary ethics, as well as in American privacy law, many advocate balanc-

ing of harm to participants and public benefits. This balancing test should apply

to other works containing nonfiction elements, like Cohens work. Essentially,when there is substantial foreseeable harm to participants, the harm can only be

justified by a greater good: an overriding public interest.

Winstons argument that documentaries without fully informed consent are

indefensible because they generally have failed to solve social problems does not

consider documentaries potential and, ultimately, immeasurable effects. Though

participants may not benefit directly from attention to a problem, incrementalchanges in viewers awareness and attitudes may eventually be manifested in

change. Requiring documentaries or other works similar to Cohens to have a

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magic bullet effect to justify their tactics ignores that social change usually

happens incrementally. This article weighs the incremental good that may be

triggered against the harm to an individual who is portrayed in an unflattering

way, but who had nonetheless consented to be on camera.

There are practical reasons for not requiring fully informed consent beyond

the fact that many potential participants would not consent if they knew allthe circumstances. Providing complete information in all cases is impractical

because producers cannot fully anticipate the consequences when they begin

filming. In addition, requiring producers to obtain consent after recording a

scene would entail potential investment losses.

THE TEST

This article addresses narrowly defined situations in which consent is given

but not fully informed. The ethical debates and principles regarding deceptionand informed consent in journalism, documentary, and privacy cases inform the

proposed balancing test:

If portraying participants without fully informed consent can result in foreseeable,

substantial negative consequences for participants, the portrayal must serve an

overriding public interest.

Public interest is classically and broadly defined as the common good, although

this definition is difficult to operationalize (Martinson, 1995). Public interest is

not public curiosity, but involves matters that are in the interest of the public

to know about because the public has a stake in them; for example, matters ofethical controversy or wrongdoing. In the context of producing video, serving

the public interest involves exploring matters of public controversy and willinvolve latitude in its interpretation. In the context of Borat, the public interest

involves exploring matters of prejudice, but it could involve a broader array of

issues. Certainly, serving the public interest must survive Boks (1978) test of

publicity. That is, it must be capable of public statement and defense (p. 92;

Martinson, 1995). The test proposed in this article does not require serving avitalpublic interest, as some journalism code provisions regarding deception require.

The test assesses whether the portrayal serves an overriding public interest, that

is, one that outweighs potential harm to participants. It allows for relatively

harmless portrayals that are common in entertainment programming. Thus, in

cases where potential harm is absent and the public interest is also absent (for

example, a participant in a silly situation looks silly), the portrayal is justifiable.Objectionable cases under this test are those in which no point of public

interest is made and a participant is being held up to ridicule, a type of emotional

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and reputational harm. The approach outlined here emphasizes public interest

against individual harm. Some satirists, however, are more deontological in their

approach, emphasizing participants innocence and blameworthiness, or respect

for fundamental beliefs, in their ethical evaluations. Comedian Steve Carell

emphasizes the need to make a point, which, according to the present argument,

serves the public interest. In an interview with National Public Radio, Carellspoke of what he found acceptable and objectionable when working for The

Daily Show, where he worked before Jon Stewart became host in 1999. For

his audition field piece, he was asked to interview a Colorado man who, Carell

came to believe, was mentally ill. We werent making any sort of point. We

were just mocking the fact that he believed what he believed, Carell said Itslike shooting fish in a barrel. These people just cant fight back (Gross &

Miller, 2007). He contrasted interviews with people who deserve it, such as

people of intolerance, including neo-Nazis (Gross & Miller, 2007). Similarly,satirical columnist Molly Ivins wrote, Satire has historically been the weapon of

powerless people aimed at the powerful. When you use satire against powerlesspeople it is like kicking a cripple (Krugman, 2007).

Stephen Colbert publicly discussed his own tests for determining whether

to include material targeting ordinary people. He emphasized respect for and

culpability of participants, classic deontological concerns. Colbert regularly con-

tributed a religious news segment to The Daily Showtitled This Week in God.

When deciding what to include in the segment he would consider, Does [thematerial] disrespect the concept of their belief? Another of his tests is not

making a joke more important than being humane. This means, for example,

not talking about tragedy or not questioning someones dearly held [religious]

beliefs (Gross & Miller, 2005). But if they are : : : using religion as a tool in

ways that are hypocritical or destructive, he said, then its fair game (Gross& Miller, 2005).

The approaches of these satirists appear to be deontological: Carell and

Ivins emphasize not targeting the vulnerable who are not culpable; Carell and

Colbert aim to call attention to, and perhaps even punish, hypocrites and other

wrongdoers; Colbert also aims to respect peoples dignity, or at least not disre-

spect it. Carell and Colberts justifications for targeting some individuals andnot others are consistent with the test outlined here requiring consideration

of public interest, though they emphasize deontological concerns: innocence

versus culpability, and respect for the participant. In the test proposed here,

portrayals can be justified even if the participant is not somehow culpable. For

example, in the case of Borat, the New York pedestrian is unfriendly, perhapseven rude, but what justifies including footage of him is the public interest

served (i.e., is the illustration of Americans wariness of unusual strangers)rather than his blameworthiness (Lemerond v. Twentieth Century Fox, 2008). In

the proposed test, portraying vulnerable people like the mentally ill cannot be

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justified because their delusions cannot be considered matters of public interest,

and mocking them may be emotionally harmful. This test does not address

respect for participants, their exploitation, or their culpability, but such portrayals

are deemed objectionable because they serve no public interest. In formulating

the test, it is acknowledged that those who make works in this genre have already

stepped outside the normal web of obligations by deceiving their participants;evaluating their actions based on duties such as respecting their subjects seems

somewhat contradictory.

For producers, a temptation may be to use deception merely to entertain,

create buzz, and attract audiences, just as journalists have sometimes been

accused of doing with undercover reporting (Smith, 2003). This test requiresmore careful consideration of consequences when potential harm is involved.

While acknowledging that the test outlined here is necessarily somewhat vague

and that reasonable people might reach different conclusions when applying it,it is preferred to having no standard at all.

Applying the Test to Borat

Can Cohens deception, on which his satire relies, serve a public interest that

overrides harm to participants? The issues that Cohens work raises about prej-

udice are almost undeniably of public interest from an ethical standpoint, as

Cohen asserted in an interview. I think part of the movie shows the absurdity

of holding any form of racial prejudice, whether its hatred of African-Americansor of Jews, he said. He also added,

Boratessentially works as a tool. By himself being anti-Semitic, he lets peoplelower their guard and expose their own prejudice, whether its anti-Semitism or an

acceptance of anti-Semitism. Throw the Jew Down the Well [a song performed at

a country & western bar duringDa Ali G Show, where the audience spontaneously

sang along] was a very controversial sketch, and some members of the Jewish

community thought that it was actually going to encourage anti-Semitism. But to

me it revealed something about that bar in Tucson: : : : And the question is: Did it

reveal that they were anti-Semitic? Perhaps. But maybe it just revealed that they

were indifferent to anti-Semitism. (Strauss, 2006)

Borat also targeted xenophobia, provincial attitudes, prejudices, and naivet of

ordinary people about foreigners. Simply put, participants who treat a character

like Borat as real demonstrate their lack of worldliness. While facing the Kazakh

governments criticism forBorat, Cohen argued, The joke is not on Kazakhstan.

I think the joke is on people who can believe that the Kazakhstan that I describecan existwho believe that theres a country where homosexuals wear blue

hats and the women live in cages and they drink fermented horse urine and the

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34 CENITE

age of consent has been raised to nine years old (Strauss, 2006). The Rolling

Stonewriter essentially agreed, saying those jokes and all the rest about beating

gypsies, throwing Jews down wells, exporting pubic hair and making monkey

porn are clearly parody but the homophobia, xenophobia, racism, classism,

and anti-Semitism Borat encounters are all too real (Strauss, 2006).

Even if one accepts that Cohens ends could justify his means, one mightcounter that Borat reveals nothing new. We knew there was prejudice and

ignorance in America and the United Kingdom before Ali G, Borat, and Bruno

showcased them. Furthermore, Cohens three characters cover much of the same

territory. At best, it seems that Cohen is calling attention to prejudice rather

than revealing unfamiliar prejudices. But there is potential value in renewingawareness of prejudices, and viewing their latest incarnations. Any public interest

value must be considered alongside consequences to participants, not just work-

by-work, but scene-by-scene within a work. Different scenes with differentparticipants and locations can have different rationales and effects.

The following analysis of scenes from Boratis necessarily limited in beingbased only on the film itself, media coverage, and allegations of participants who

complained or filed suit. These are serious limitations because, as the analysis

shows, the film can be an incomplete or misleading record of actual events and

their sequence.

In Borat, the Romanian villagers poor rural lifestyle, no doubt chosen for

its backwardness, is held up for ridicule and used to suggest that it couldproduce a boor like Borat but not to make any larger point. Although few in the

audience would believe that those portrayed included an abortionist, a rapist, or

a prostitute, all that is gained is a laugh at the expense of the participants. One

might think that no harm was done, but some participants attested otherwise;

the portrayals caused emotional harm (Kole, 2006). On balance, including thescenes is not justifiable because harm is inflicted and no public interest is served.

Moreover, similar scenes could probably have been constructed with actors or

the informed consent of some participants. According to press reports, at least

some participants enjoyed participating in the film even after they knew the type

of film they were involved in (Kole, 2006).

In the fraternity brothers case, an overriding public interest is arguablyserved, demonstrating casual racism and sexism, matters of deep public interest.

At least in the way the scene is constructed, their offensive words appear to

be spoken with little provocation. Though the brothers alleged that they were

encouraged to drink, they did not appear to be too incapacitated to be legally

bound by contract, a high standard to meet (Farnsworth, 1990). A questionin all such cases is the representativeness of the participants; their attitudes

and actions matter less if they are unique, more if they represent even a smallminority. If exceptional efforts were made to find people with unusual attitudes,

the case for using the footage is weaker. Regarding this scenario, we are in a

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poor position to draw conclusions because Cohens teams are nontransparent

about their methods, in part for legal reasons. The fraternity boys are likely to

suffer embarrassment as a result of the film, and they may even lose job offers,

but such consequences are justifiable given the attention the film brings to their

aggressively hateful words.

A similar analysis applies to scenes at a rodeo and a gun shop. In Salem,Virginia, a rodeo manager, who is named, tells Borat that his moustache makes

him look like a terrorist, and says, I see a lot of people and think: : : doggone

Muslim, I wonder what kind of bomb hes got strapped to him. When Borat

mentions that in Kazakhstan homosexuals are hanged, the manager says, Thats

what were trying to get done here. Again, an overriding public interest isarguably served by documenting casual and freely offered prejudice. In the

scene in which the gun shop owner readily responds to Borats question about

the best gun to defend against a Jew with a recommendation of a 9 mm or a.45, his coolness can be interpreted as indifference to anti-Semitism and to how

a gun he sells might be used. Foreseeable harms to either of these participantsare speculative and outweighed by bringing a mass audiences attention to their

responses to Borat.

Whether an overriding public interest is served can be difficult to assess

because of the manipulations possible in video production. Film critics have

interpreted the scene at the dinner party as indicative of racism (Streit v. Twen-

tieth Century Fox, 2008). The gullible guests patiently endure a lot, but drawthe line when the uninvited, scantily clad African American woman arrives. The

scene appears to be constructed to suggest the guests racism. Long before the

African American prostitute arrives, an establishing shot shows a street sign,

Secession Drive, presumably where the party takes place. The dinner guests

judicial complaint states that Secession Drive is not where the dinner was heldand they do not know where that street is located (Streit v. Twentieth Century

Fox, 2008). Indeed, the address of the hall where the filming reportedly took

place is different (Marchese & Paskin, 2006). The reaction to the uninvited

guest may not be because of prejudice as much as her timing in the evenings

sequence of events. The complainants also assert that they apologized to the

prostitute when she arrived, not knowing she was a professional actress whowas part of the ruse. The apology, however, was not included in the film ( Streit

v. Twentieth Century Fox, 2008). If the Secession Drive footage was from

somewhere else and the apology was omitted, such manipulation helps miscast

the participants and deceive the audience. Editing suggests the dinner guests

acted from prejudiced motives that, according to their account, they did not.This allusion to racism could cause reputational harm to them. Demonstrating

racism could redeem the scene, but manipulative editing to suggest prejudicefor which there is no evidence serves no public interest. Therefore, the scene is

not justifiable.

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36 CENITE

In the scene in which Borat feigns a born-again experience, it seems excep-

tionally unlikely that any reasonable viewer would regard the plaintiff as making

fun of her own religion when shown raising her hands, despite that her claim

for false light portrayal on that basis survived a motion to dismiss (Johnston

v. One America Productions, 2007a). Nonetheless, was it ethical to film the

frenzied activities of charismatic Christians after telling them that filming wasfor a religious documentary? In addition, was it justifiable to waste their time

and excite their emotions with Borats false conversion? The case is easier than it

might be in a church, because the event was a public meeting. Also, a Mississippi

congressman and the chief justice of the state Supreme Court spoke. The latter

said, Were a Christian nation. Such appearances make what transpired at themeeting more an issue of public interest than it might otherwise be, enough

to make the scene justifiable, especially given the unlikelihood of harm to the

unnamed participants. A public interest arguably outweighs any harm from anapparently accurate portrayal.

Some scenes in Boratdo not appear to present serious ethical issues. Suchscenes show reactions of participants surprised by silly situations, reminiscent

ofCandid Camera. No public interest is served, but the harm suffered from

being depicted in a harmless way (i.e., as a bit credulous and overly polite

person) is also absent. Because they touch on social issues, some scenes may

appear to involve public interest when actually they are just silly and harmless.

A feminist artist complained about the scene in which she and two other womenof a feminist group discussed feminism with Borat. Regarding Borats comment

that women have smaller brains, she observed,

[W]hat exactly is he trying to unmask when he ridicules women? Borat could cause

a sensation by pressing his small brain commentary on people like Lawrence

Summers, the former president of Harvard who resigned after saying that women

cant be scientists. Instead, for the sake of a cheap laugh, he chooses to reinforce

the stereotype of women as the inferior sex, at the expense of women. How funny

is that? (Stein, 2006)

One might respond in two ways. First, the feminists appear to be targeted only in

the way that many ideological purists are targeted onDa Ali G Show. Cohen uses

a standard, reliable comedic strategy, forcing interaction between irreconcilablecharacters for comedic effect. He confronts a group of passionate feminists

with their worst nightmare: an aggressively clueless adversary played by Borat,

a ridiculous misogynist. Cohens characters also have vexed and provoked an

animal rights activist, a Christian rocker, and a neo-Nazi, among many others, of

all ideological stripes. Second, it seems a stretch to say that Borat is reinforcing

stereotypes of female inequality. His comments that in Kazakhstan more than fivewomen can only legally be together in a brothel or a grave, and his question about

whether women should be educated despite their smaller brains, are too absurd

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to have bite in contemporary debates about womens equality. The feminists

are not humiliated; they remained in control of the situation and ended the

interview. The joke appears to be mostly the situation itself. Though feminism

is potentially fraught with controversy, no public interest is served, and no

harm is done, making the scene acceptable. Another interpretation of the scene

may be that Borats own sexism, rather than feminism, could be viewed as thetarget. This interpretation was considered by the artist when she analyzed Borats

statement about womens smaller brains: You could argue that his statement

is so ridiculous that the very utterance of it proves the reverse, and therefore

is an unmasking of his characters small mindedness (Stein, 2006). In this

interpretation, the scene would serve the public interest while causing little, ifany, harm to participants.

It may be difficult, though probably not impossible, to probe the hearts of

the victims of Borats satire without deception, but Boratexplores some issuesin a novel way that, when interspersed with purely entertaining scenes with no

larger point, reached millions of viewers worldwide. On balance, scenes inBoratcan generally be justified in a utilitarian analysis, except the Romanian

villagers case. Likewise, the dining society scene strains too hard to give an

interpretation that may be inaccurate, and thus serves no public interest.

CONCLUSION

Even though theBoratteam brilliantlycovered their legal bases through carefully

chosen words and the releases that participants signed, ethical issues associated

with deception remain. The test proposed in this article allows a scene-by-scene

evaluation of the work, building on principles from documentary, journalism,entertainment ethics, and privacy law. In many scenes, Borat appears to pass

the test, but in others it does not. What should the consequences be if a work

fails to meet the ethical standards outlined here? Industry organizations such

as the Motion Picture Association of America, which administers its voluntary

ratings system, could extend their reach into formulating ethics codes. In lieu

of that, the informal sanctions of criticism, and perhaps the greater pressures ofinvestors, studios, and audiences, will have to suffice.

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