Why Borat Loves Claim Waivers

Four points to include in a legal document to significantly reduce, if not eliminate, litigation risks.

For businesspeople in the media and marketing space, disseminating videos and podcasts of influencers and celebrities being interviewed on a topic relevant to a brand can be critical to attracting readers and customers. On the other hand, businesspersons, themselves, may be interviewed by newspapers or journals on a topic that could help promote their product or service.

Exposing oneself to the media clearly can have its benefits, but it can also create a thicket of legal issues. For example, who owns the podcast or video, how long and, under what circumstances, can one use the likeness or image of a person, and what happens if an interviewee claims that work product put them in a false light, or was even defamatory?

Generally, the way to ameliorate the risks of these types of claims is for the parties involved to enter into a licensing agreement, prescribing how and under what circumstances a person’s image and voice can be presented. But it is also common that, in addition to a licensing arrangement, the interviewee executes a waiver, waiving legal claims that could arise in connection with the publication of the media piece.  Recently, a decision was rendered by the U.S. District Court for the Southern District of New York on the issue of media-related waivers. The case—Moore v. Sacha Baron Cohen—also holds, as one might expect, some comedic value.

Judge Roy Moore was a Republican candidate for the U.S. Senate in Alabama who, during his campaign, was alleged to have had inappropriate encounters with underaged girls. He lost the senate race.  Subsequently, he was notified that he was going to be honored in Washington, DC, for his support of the State of Israel and that he would be interviewed by Yesrushalayim TV.

Unbeknownst to Judge Moore, however, his interviewer was none other than the actor and comedian Sacha Baron Cohen, of Borat fame, posing as the Israeli General Erran Morad.

The District Court Judge recites the facts underlying Judge Moore’s lawsuit:

“Cohen first asked Judge Moore about Alabama’s ‘strong connection’ with Israel, before proceeding to describe technology used by the Israeli military to combat terrorism. Cohen discussed one specific device which he claimed the Israeli army employs to uncover tunnels used by terrorists to launch attacks. Cohen explained that the device also can detect enzymes that are secreted by ‘sex offenders and particularly pedophiles.’ Retrieving the device, a black wand-like object, Cohen commented that ‘because neither of us are sex offenders, then it makes absolutely nothing [sic].’   But when Cohen moved the wand closer to Judge Moore, the gadget seemed to emit a beeping noise. Cohen then hit the device against his hand, stating that the device ‘must be faulty’ before asking Judge Moore if he might have lent his jacket to someone else.”

It is sufficient to state that after objecting to the innuendo that he was a sex offender, Judge Moore abruptly ended the interview and left the hotel. The encounter was aired as part of Episode 3 of Cohen’s Who Is America? television series.

Judge Moore and his wife subsequently sued Cohen and others for fraud, defamation, and intentional infliction of emotional distress.

The principal issue before the court was whether Judge Moore, by executing a “Standard Consent Agreement,” was barred from bringing his claims. The Agreement contained the following waiver:

“ [Judge Moore] specifically, but without limitation, waives, and agrees not to bring at any time in the future, any claims against the Producer, or against any of its assignees or licensees or any one associated with the Program or its production, or this agreement, including, but not limited to, claims involving assertions of . . . (h) infliction of emotional distress (whether allegedly intentional or negligent) . . .(m) defamation (such as any allegedly false statement made in the Program) . . . (p) fraud (such as  any alleged deception about the Program or this consent agreement) . . . .”

Citing case authority that where the intention of the parties is clear and unambiguously set forth, effect must be given to the intent of the parties  as indicated by the language used in the contract, District Judge Cronan called attention to the fact that the three claims alleged in Judge Moore’s lawsuit, namely, intentional infliction of emotional distress, defamation, and fraud, were expressly precluded in the Agreement’s waiver, i.e., “(h) infliction of emotional distress (whether allegedly intentional or negligent) . . .(m) defamation (such as any allegedly false statement made in the Program) . . . (p) fraud (such as  any alleged deception about the Program or this consent agreement) . . . .”   [Bold face added for emphasis.]

The District Court also addressed Judge Moore’s counter argument that the waiver should not be enforced because Judge Moore was fraudulently induced into entering into the Agreement in the first place.

On this point, the Court drew attention to Paragraph 5 of the Agreement, concluding that because Judge Moore disclaimed having relied on any misrepresentation as to the character of the program, he could not, therefore, argue that he was fraudulently induced into entering into the Agreement.

That section of the Agreement expressly provided that in entering into the Agreement Judge Moore was “not relying upon any promise or statements made by anyone about the nature of the Program or the identity, behavior, or qualifications of any other participants, cast members, or other persons involved in the Program. Participant is signing this agreement with no expectations or understandings concerning the conduct, offensive or otherwise, of anyone involved in the program. “

At the end of the day, the U.S. District Court, based on the clear language of the Standard Consent Agreement executed by Judge Moore, dismissed his claims and his lawsuit.

The Court’s decision underscores four points worth remembering:

1. Well drafted legal documents can significantly reduce, if not eliminate, litigation risks.
2. Waivers should, to the extent possible, specify the claims that are being barred. Relying on “catch-all” clauses that purport to cover “all other like claims” may not provide sufficient clarity to meet the “clear and unambiguous” standard articulated by the District Court.
3. Waivers that include disclaimers that interviewees have not relied on certain representations that induced them into participating in an interview can help bar later claims that the interviewee was fraudulently induced into participating in an interview gone bad.
4. Finally, if you receive an invitation to be interviewed by a General Erran Morad, take a rain check.

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