Netflix is entangled in a legal suit where the producers of a documentary aired by the US streaming giant are accused of commercially exploiting poor Kenyans whose lifestyle is captured in the film.
Four Kenyans claim they were not made aware their penury lifestyle would be showcased in the documentary titled Free Money, which first premiered in Toronto International Film Festival (Tiff) and then shown at the International Documentary Film Festival in Amsterdam (IDFA), before it was sold to Netflix in September last year.
They are seeking a slice of revenues earned from the sale of the documentary to Netflix, which is not subject to the suit. The documentary was produced and distributed by Insignia Films and LBx Africa.
The one hour and 44 minutes documentary depicts the changing lifestyles of poor residents of Kogutu village in Kisumu County after receiving a monthly stipend of $22 (Sh2,842) from GiveDirectly for a 12-year trial.
The four reckon that GiveDirectly and the producers took advantage of their vulnerability and humble life and used them as guinea pigs to commercialise their vested interest by exposing them to the whole world through the documentary.
“The respondents infringed on the privacy rights of the petitioners and Kogutu clan members by misleading them on the purpose and objective of the photos and videos only for them to be informed later that a documentary Free Money had been produced featuring their livelihood and released to the global audience,” they say, through their lawyer Harry Arunda.
GiveDirectly carried out an experiment that involved giving out money to needy communities as part of a universal basic income project and Kogutu village in Kisumu County, was chosen as part of the experiment in Kenya.
John Ogunde, Jael Songa, Emmaculate Anyango and Milka Achieng say that during the filming they were promised $22 every month that would be sent to a mobile money wallet, for a period of 12 years.
The four say they learnt about the production of the documentary after it was released on Netflix.
High Court judge Chacha Mwita directed their lawyer to serve the respondents with their filings and scheduled the matter to be mentioned on October 7.
They have sued GiveDirectly, headquartered in New York and with offices in Nairobi’s Westlands area.
Others named in the suit are Insignia Films Inc and Goodhue Pictures Inc -- both film production companies based in the US, LBX Africa -- and Kenya Film Classification Board (KFCB).
The four are seeking a reasonable percentage of revenue accrued from the documentary, among other damages, arguing that it was commercialised without commensurate consideration.
Jael and Emmaculate, the main characters in the film, say they were underage girls and that the filming was done without the written consent of their parents and guardians, a move they hold was tantamount to exploitation and in contravention of the Constitution.
All the time their pictures and videos and voices were being recorded, the four say, they were never informed that it was for the purpose and intention of coming up with a documentary for commercial value.
Documents filed in court show that GiveDirectly visited Kogutu clan in 2018 and through one of its directors, promised members that they would receive the money every month from donors for 12 years.
The four say they were picked because of their skills, voice and image, which were suitable for the production of the documentary. The petitioners say they were filmed as part of the process and the producers and members of the NGO would make regular visits to the village in a programme.
A director of GiveDirectly allegedly explained to them that the videos and pictures formed part of enrolment onto the programme of monthly income and would be for private use of the NGO.
After signing documents titled Insignia Films Standard Appearance Release, the clan members were allegedly split into groups made up of households and the team visited each household for interviews as videos and photos were being taken as part of recording.
“The process of interviews went on till Kogutu clan members whose photos were taken and had attained 18 years of age started to receive $22,” Mr Arunda says.
The recording team narrowed down to three specific individuals from the clan, Emmaculate, Jael and John Ogunde as well as Milka, who is from a different clan.
When Ogunde joined university in mid-2018 and moved to Nairobi, he was allegedly told to be showing up for more filming sessions since his relocation from the village to a university in Nairobi manifested a great transition and advancement that was crucial for the organisation.
“On many occasions, the 1st respondent’s team (GiveDirectly) could pick the 1st petitioner and drive to various locations for filming and they would give him Sh500 for lunch and transport,” he said.
The NGO team allegedly travelled back to the USA following Covid-19 pandemic restrictions and they were introduced to another team from LBX Africa.
They say the producers have an international copyright of the documentary for 50 years and expect to get good revenue despite having been produced through commercial exploitation and utter disregard of their right to privacy and dignity.
They accuse the producers of not giving full disclosure of their intention of making a documentary, which was a different project in which they were being given the monthly stipend.
They also say there was no government official from the KFCB to ensure lawful compliance in the process of developing the documentary.
Signing the standard appearance release, they say, did not meet the threshold of a consent under Data Protection Act and the right to privacy.
