Mark Cenite. Journal of Mass Media Ethics. Volume 24, Issue 1. January-March 2009.
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 Kazakhstan used 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 in Borat.
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. Cohen used 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 film Borat: Cultural Learnings of America for Make Benefit Glorious Nation of Kazakhstan, holding up a mirror to Americans through reactions he provokes. The film was an international commercial 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 they are getting into when they consent to get involved are common in journalism, documentary and reality television—in 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: Hawaii became a focal point of the season, has claimed that she was misrepresented. Segments of Comedy Central’s fake news shows, The Daily Show with Jon Stewart, and its spin-off, The Colbert Report, are prominent examples of work that use the same basic formula for some interviews; only after signing consent forms and participating do people find they were part of a comedy and that they were targets of a joke. Bill Maher’s 2008 film Religulous, directed by Borat‘s director Larry Charles, also relies on less than fully informed consent.
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 Borat‘s producers escaped liability. Drawing on ethical principles debated in regard to documentaries, journalism, and entertainment, as well as principles underlying American privacy 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 interest—such as addressing an important social issue—outweighs potential harm to participants.
Some Scenes from Borat that Resulted in Litigation
Cohen first faced legal action for Borat from two University of South Carolina fraternity brothers. The young men drank with some of the Borat team 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 film’s 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.
In another sequence, Borat meets an etiquette coach. Then he is shown attending a social club dinner in Birmingham. In the Alabama Supreme Court’s 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” (p. 2). After insulting a guest 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 Borat’s uninvited friend arrives at the dinner party—a scantily clad African American woman portraying a prostitute—Borat is kicked out. Guests sued for fraud and other claims, but complications related to standing and venue prevented the suit from going forward.
Another case involves the film’s 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. They claim they were told it was a documentary about their poverty, and they did not sign releases. 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 woman was asked to bring a pig into her home and have her child pose with a toy rifle. 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.
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 plaintiff’s explicit permission to be featured in any other film except a ‘religious documentary’ that would be shown in a foreign country—not a major motion picture shown across the nation” and internationally (pp. 23-24). Her case for misappropriation of her image and false light invasion of privacy survived a motion to dismiss.
Legal Deception: Appearance Releases and Alleged 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 understand some 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”. One might argue that the law allows Borat‘s producers to lie to participants and get away with it. Using fairly standard and sweepingly powerful language, the release 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 16 specific kinds of liability, including defamation, false light, misappropriation, and infliction of emotional distress. Other disclaimers appear specifically tailored to protect against liability for the deception Borat‘s 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 to fact. 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 extraordinarily likely to 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 assertions about 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 agreement between 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 contract—i.e., evidence-regarding oral or written negotiations before it was signed—is inadmissible to challenge (or supplement) a contract reduced to writing. Some may argue that Borat‘s producers used legal “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 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. 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 area—for example, journalism, entertainment, advertising, public relations—and then apply them to cases. Similarly, ethics codes are largely domain specific. When a work is difficult to classify, as Borat is, this deductive approach may ultimately be inconclusive. Court decisions document the ambiguity about Borat‘s format (p. 4, Johnston v. One America Productions, 2007a, pp. 14-15).
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 Cohen’s 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 (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 the Borat format.
Informed Consent in Documentary: Principles and Questions
The release that Borat participants 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 treatment 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, 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 documentary. For instance, can producers withhold information about the production to help get participants, or portray participants in a different light than anticipated? Anderson and Benson (1988, p. 81) note a dilemma likely to arise in this genre: “Without the informed consent of the subjects, the form lacks ethical integrity; without freedom for the filmmaker, it lacks artistic integrity.” argues that ethics of documentary production are more complex than ethics of fiction. Because participants appear as 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. (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 often been accused of misrepresentation, but the controversies are usually about portrayal of factual matters regarding public issues—for example, the bin Laden family members’ flights out of America after September 11, 2001. Controversies about Cohen’s work, however, involve the process of getting participants to appear or how individuals are portrayed after they give consent.
There is no consensus among documentarians about ethical standards for unanticipated portrayals that are not false. 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 massively reduce access to subjects” (p. 284), he still supports it, saying decades of documentaries have “patently done more good to the documentarists than they 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 people’s lives and because the subject inevitably doesn’t always realize how the audience will judge their behavior”.
Principles from Newsgathering Ethics
Documentary ethics are in some ways related to journalism ethics. Both focus on actual events rather than fiction, though most journalism approaches lack the “personal vision and statement” of documentary (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 participant’s image without permission, corroborates that Borat has qualities 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 Borat fits squarely within the newsworthiness exception” to New York’s misappropriation law and “clearly falls within the wide scope of what New York courts have held to be a matter of public interest” (pp. 6-7). When the pedestrian sued, the court concluded that though the film uses much “childish and vulgar” humor,
At its core, … Borat attempts an ironic commentary of “modern” American culture, contrasting the backwardness of its protagonist with the social ills afflict[ing] supposedly sophisticated society. (pp. 6-7)
The plaintiff’s 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 this case 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. Borat may be analogized to undercover reporting, although the subjects of undercover reporting do not know they are being targeted at all, whereas Borat‘s participants do not know the circumstances. The Society of ethics code 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 vital public 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 one’s identity in gathering the information?”), and last resort (“Have all other reasonable means of getting the story been exhausted?”). This test is almost completely consequentialist; the potential harm of undercover reporting is described as “potential damage to trust and credibility” rather than harm involving deception. Similarly, Don Hewitt, producer of CBS’s 60 Minutes, defended journalistic deception that serves the public interest: “It’s the small crime versus the greater good” (pp. 283-284). In American Privacy law, privacy rights are seen as limited by competing public interest concerns. 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]” (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, but in 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 advisable from all participants except those who appear incidentally in public; written or recorded releases can head off legal action, especially for misappropriation of participants’ images.
Some may suggest that hidden camera shows can serve as a model for work such as Cohen’s: 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” (p. 196). In MTV’s Punk’d, celebrities are recorded being duped into ridiculous situations, and all but a few ultimately consent to air the footage after they have full knowledge of the situation. 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 and warn 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 documentary—or new formats like Borat—to reveal anything would 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 justified in 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 choices of those who have chosen to make a film relying on deception. Although they have dispensed with deontological concerns such as fully informed consent, they can 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 balancing of harm to participants and public benefits. This balancing test should apply to other works containing nonfiction elements, like Cohen’s work. Essentially, when there is substantial foreseeable harm to participants, the harm can only be justified by a greater good: an overriding public interest.
Winston’s 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, incremental changes in viewers’ awareness and attitudes may eventually be manifested in change. Requiring documentaries or other works similar to Cohen’s to have a “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 all the 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.
This article addresses narrowly defined situations in which consent is given but not fully informed. The ethical debates and principles regarding deception and 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. 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 of ethical controversy or wrongdoing. In the context of producing video, serving the public interest involves exploring matters of public controversy and will involve 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 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 a vital public 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 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, Carell spoke 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 weren’t making any sort of point. We were just mocking the fact that he believed what he believed,” Carell said “It’s like shooting fish in a barrel. These people just can’t fight back”. He contrasted interviews with “people who deserve it,” such as “people of intolerance,” including neo-Nazis. Similarly, satirical columnist Molly Ivins wrote, “Satire has historically been the weapon of powerless people aimed at the powerful. When you use satire against powerless people it is like kicking a cripple”.
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 contributed a religious news segment to The Daily Show titled “This Week in God.” When deciding what to include in the segment he would consider, “Does [the material]” 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 someone’s dearly held [religious] beliefs”. “But if they are … using religion as a tool” in ways that are “hypocritical or destructive,” he said, “then it’s fair game”.
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 people’s dignity, or at least not disrespect it. Carell and Colbert’s justifications for targeting some individuals and not 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, perhaps even 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. In the proposed test, portraying vulnerable people like the mentally ill cannot be 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. This test requires more 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 Cohen’s deception, on which his satire relies, serve a public interest that overrides harm to participants? The issues that Cohen’s work raises about prejudice 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 it’s hatred of African-Americans or of Jews,” he said. He also added,
Borat essentially works as a tool. By himself being anti-Semitic, he lets people lower their guard and expose their own prejudice, whether it’s anti-Semitism or an acceptance of anti-Semitism. ‘Throw the Jew Down the Well’ [a song performed at a country & western bar during Da 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.
Borat also targeted xenophobia, provincial attitudes, prejudices, and naiveté 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 government’s criticism for Borat, Cohen argued, “The joke is not on Kazakhstan. I think the joke is on people who can believe that the Kazakhstan that I describe can exist—who believe that there’s a country where homosexuals wear blue hats and the women live in cages and they drink fermented horse urine and the age of consent has been raised to nine years old”. The Rolling Stone writer 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”.
Even if one accepts that Cohen’s ends could justify his means, one might counter 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, Cohen’s 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 renewing awareness 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 different participants and locations can have different rationales and effects.
The following analysis of scenes from Borat is necessarily limited in being based 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 could produce 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. On balance, including the scenes 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.
In the fraternity brothers’ case, an overriding public interest is arguably served, 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. A question in 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 small minority. 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 poor position to draw conclusions because Cohen’s 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 he’s got strapped to him.” When Borat mentions that in Kazakhstan homosexuals are hanged, the manager says, “That’s what we’re trying to get done here.” Again, an overriding public interest is arguably served by documenting casual and freely offered prejudice. In the scene in which the gun shop owner readily responds to Borat’s 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 participants are speculative and outweighed by bringing a mass audience’s 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. The gullible guests patiently endure a lot, but draw the 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 held and they do not know where that street is located. 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 evening’s sequence of events. The complainants also assert that they apologized to the “prostitute” when she arrived, not knowing she was a professional actress who was part of the ruse. The apology, however, was not included in the film. 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 prejudice for which there is no evidence serves no public interest. Therefore, the scene is not justifiable.
In the scene in which Borat feigns a born-again experience, it seems exceptionally 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. Nonetheless, was it ethical to film the frenzied activities of charismatic Christians after telling them that filming was for a religious documentary? In addition, was it justifiable to waste their time and excite their emotions with Borat’s 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, “We’re a Christian nation.” Such appearances make what transpired at the meeting 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 an apparently accurate portrayal.
Some scenes in Borat do not appear to present serious ethical issues. Such scenes show reactions of participants surprised by silly situations, reminiscent of Candid 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 women of a feminist group discussed feminism with Borat. Regarding Borat’s 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 can’t 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?
One might respond in two ways. First, the feminists appear to be targeted only in the way that many ideological purists are targeted on Da Ali G Show. Cohen uses a standard, reliable comedic strategy, forcing interaction between irreconcilable characters for comedic effect. He confronts a group of passionate feminists with their worst nightmare: an aggressively clueless adversary played by Borat, a ridiculous misogynist. Cohen’s 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 five women 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 to have bite in contemporary debates about women’s 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 Borat’s own sexism, rather than feminism, could be viewed as the target. This interpretation was considered by the artist when she analyzed Borat’s statement about women’s 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 character’s small mindedness”. In this interpretation, the scene would serve the public interest while causing little, if any, harm to participants.
It may be difficult, though probably not impossible, to probe the hearts of the victims of Borat’s satire without deception, but Borat explores some issues in a novel way that, when interspersed with purely entertaining scenes with no larger “point,” reached millions of viewers worldwide. On balance, scenes in Borat can 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.
Even though the Borat team brilliantly covered 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 of investors, studios, and audiences, will have to suffice.