Defamation Review

Minimizing the Risk of a Lawsuit 🛡️

For any film that deals with real people and events—especially documentaries, biopics, and investigative works—a defamation review is an essential part of the legal clearance process. Defamation is the act of communicating a false statement of fact that injures a person’s reputation. A successful defamation lawsuit can be financially devastating and can halt a film’s distribution. The purpose of the review is to identify potential legal landmines before the film is released.

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The Review Process: Fact-Checking for Legal Exposure

During a defamation review (sometimes called a ‘vetting’), an experienced entertainment or media lawyer will watch a cut of the film and scrutinize the script. They will flag any statement, depiction, or implication that could potentially be considered defamatory towards an identifiable, living individual or a specific entity. For each flagged item, the lawyer’s central question to the filmmakers is: ‘How do you know this is true?’

The filmmakers must then provide their sourcing for the claim. This can include:

• On-the-record interview transcripts or recordings.
• Court documents, police reports, or other official records.
• Credible, published journalistic sources.
• Corroborating evidence from multiple sources.

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From Review to Release

Based on the strength of the evidence provided, the lawyer will assess the level of legal risk.

• If a claim is well-sourced and demonstrably true, the risk is low (truth is an absolute defense to defamation).
• If a claim is based on a single, unreliable source or is presented as fact when it is actually speculation, the risk is high.

The lawyer will then advise the filmmakers on how to mitigate the risk. This might involve rephrasing a statement as an opinion (‘it seemed as though…’ instead of ‘it was…’), attributing the claim to a specific source on-screen, or, if the risk is too great, removing the statement altogether. A clean defamation review is a prerequisite for obtaining the Errors & Omissions (E&O) insurance that all distributors require.