Drawing the line between fiction and reality: Docu-series and creative constraints

The rising success of docu-series shows how entertaining—and at the same time instructive—stories narrating real-life events can be. In an age when new technologies are making images increasingly accessible and content abounds on social media, one might think that content that relies heavily on the portrayal of real characters—as in the products known as docu-films and docu-series—would be quite straightforward, yet that is not the case. The production and distribution of such content entail more than a few legal issues, and risks should be carefully evaluated.

Recent years have seen a proliferation of docu-films and docu-series as well as a number of other fictionalized productions that, to a certain extent, all narrate real-life stories while adhering to the facts to differing degrees. The legal implications are not abstract and can prove pressing, especially when the events portrayed are not located far back in history, but are contemporary (or at least recent) events, like stories centered on high-profile court cases or on the lives of public figures. Since the launch and rise of this type of works, there has been speculation in articles and elsewhere on the degree of reality of the facts underlying them. Are all the stories true? Did the characters portrayed authorize the production and distribution of these films and series? Were they in a position to object to such a portrayal?

Calls for answers to these types of questions were not long in coming: most recently, documentary series like HBO’s “Allen vs Farrow” or Amazon’s “Veleno” have left the public wondering what is true and what is not. The series narrate real-life stories, represented with a certain degree of authenticity, but the use of archive footage, judicial documents and other factual elements is accompanied by interviews and comments that for their very nature and their overall assembly may be biased and ultimately influence viewers. In a similar way, or even more so, viewers may be misled to think that fictional series inspired by real-life events (like “The People v. O.J. Simpson” and “The Assassination of Gianni Versace”, both belonging to FX’s “American Crime Story”) where real characters are impersonated by actors actually provide a truthful account of the portrayed facts, leaving speculations as to the room left to the production in the creative choices underlying what parts of the story are narrated and in what way. In fact, what is shown is not necessarily the historical truth, but rather a truth dramatized for the purpose of the screenplay. On the other hand, productions like Sky’s “Gomorrah”, which is based on Roberto Saviano’s namesake book telling the story of a fictional “clan” inspired by a real family in the Camorra, a criminal organization operating in Naples, take inspiration from real-life facts but do so from a fully fictional perspective. For instance, characters are not (at least immediately) identified or identifiable, though they may be suggesting who they are—even if they have fictional names—based on other narrative elements such as context, actions, or relations with other characters.

Here is the crux of the matter: What is the boundary between reality and fiction? When does the freedom of content creators in real-life storytelling go beyond the limits of informative interest and become defamatory or harmful to the reputation of the persons portrayed?

Indeed, these issues have come to the attention of commentators and reached the courtrooms (though in Italy not very often). Judges have been called to identify the criteria used to ascertain whether the unauthorized portrayal of persons and use of their images is permissible.

Under Italian law, “personality rights” encompass the exclusive rights to personal image and portrait, which are respectively set forth in Article 10 Italian Civil Code and Article 96 of Law No. 633/1941. These provisions establish personal, inalienable rights that, as a rule, prevent unauthorized reproduction of a person’s image and portrait. As an exception, the law also provides for a derogatory regime allowing third-party use of a person’s image or portrait without their consent under a strict set of circumstances, for instance, if the use is justified by the celebrity status of or the office held by the portrayed person or is linked to facts or events of public interest. Personality rights have also been construed (and are now unquestionably deemed) as enshrined in Articles 2 and 3 of the Italian Constitution, both protecting the right to control the portrayal of one’s personal image and how such portrayal occurs (the so-called right to personal identity). This is particularly relevant when it comes to the necessary rights balancing act that legal practitioners must perform whenever the protection of a person’s image potentially conflicts with the exercise of the freedom of expression and artistic expression, equally protected at the constitutional level under Articles 21 and 33.

Against this backdrop, case law has used Article 21 of the Italian Constitution to set limits for the protection of personality rights: on one hand content creators are free to readjust real-life facts to pursue their artistic goals. On the other, in doing so they must respect the criteria of faithfulness and truthfulness of the facts narrated. In this sense, case law indicates that if a portrayal is unauthorized, there must at least be an actual public interest in the publication or diffusion of the image of the person—think of key public figures in high-profile contemporary events. At the same time, a portrayal must always be truthful, relevant, and moderate in order not to be defamatory.

In other words: creativity must respect and comply with truth—at least to a certain extent. The first can recast historical facts, but it shall not manipulate them in a way that twists history completely. Creators of film works bear a duty of fidelity to the facts from which they have taken inspiration for their creative reworking—facts that are suitable for characterizing the actions, personality, and morality of the real-life characters involved in the events depicted. The artistic nature of the work per se does not allow any distortion or abstraction from the reality of the historical-narrative element. In this regard, Italian courts are specifically aware of the intensity of cinematographic works compared to e.g., literary works, and consider the AV medium capable of representing historical facts with particular emphasis, thus deeply conditioning the audience.

Moreover, content producers must also exercise self-constraint by not relying upon offensive and defamatory depictions, expressions, and language. Indeed, creative freedom must always comply with the principle of proportionality and continence so as not to harm the image and honor of the real-life characters depicted.

The type of production may have an impact, too. In this respect, the flexible nature of the freedom of artistic expression under Article 33 of the Italian Constitution may help to adjust the truthfulness criterion slightly, and the limits set by Article 21 of the Italian Constitution thus depend on the film work: Italian courts have distinguished between docu-films, fictional cinematographic works that do not retrace or narrate real events, fictions that mix elements of historical truth and elements of fiction, and cinematographic satires.

For instance, docu-films encounter a significant limit to the freedom of expression that is represented by the need for the facts disclosed to be truthful, and a constraint linked to the respect of the personality rights of others. To ensure the legitimacy of factual representations, the elements of docu-films must be demonstrably reliable. Though this kind of work still is the result of creative activity—because filmmaking always requires some kind of reworking of events—any intervention cannot go so far as to alter the facts and events of the plot. In this sense, the requirement of truthfulness should be understood as a faithful correspondence between the cinematographic narration and the events as they took place in the past. Fictional works may enjoy a wider degree of creative choice, insofar as the portrayal is clearly the result of some fictionalization.

Importantly, the more recently the narrated story took place, the greater the need to comply with the requirement of truth. Truthfulness is mitigated when the facts or characters narrated have acquired a historical dimension and the community has formed a judgement about them For this reason, more imaginative reconstructions of facts that go back a long way may be permitted.

Lastly, the requirement of continence dictates that a film work may contain critical or harsh depictions of real-life events and characters but must not portray them in ways that are unnecessarily aggressive or may constitute personal attacks directed at the individual moral figure of a person. Indeed, honor and reputation pose an insurmountable limit to the lawfulness of any third-party portrayal.

To conclude, these are only rough guidelines to be followed by content creators and others working in the film production and distribution industry, to navigate these still uncertain waters. Assessing the lawfulness of the portrayal of real-life characters and events is a nuanced challenge, the outcome of which depends on several factual and legal factors that should be carefully evaluated. These considerations are increasingly relevant as the number of creative works aimed at “authentic” storytelling grows, and in a scenario where the lines between reality and fiction are becoming blurrier than ever.

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