In retrospect, perhaps Fredrik Gertten should have known he was in for a slippery ride when he took on the world’s biggest fruit and vegetable company. But then again there’s really no way the Swedish journalist and filmmaker could have anticipated just how far Dole Foods would go in its bid to prevent his 2009 documentary Bananas from reaching the big screen.
”Maybe I was naive, but then maybe it’s a good thing to be naive,” says Gertten, who has been in Australia this week as a guest of the Melbourne International Film Festival. ”If you all the time think, ‘Oh the bad guys are coming after me’, maybe I wouldn’t have the guts to do this film.”
Bananas was built around a 2007 court case in which Los Angeles lawyers Juan Jose Dominguez and Duane Miller claimed Dole had knowingly exposed workers at a banana plantation in Nicaragua to Dibromochloropropane (DBCP), a pesticide known to cause sterility.
The chemical company Dow had stopped selling the pesticide in 1977, the year compelling evidence of the sterility link emerged, and it was banned in the US entirely in 1979. But when Dow wrote to inform clients that DBCP would no longer be available, Dole responded that failure to provide the chemical as promised would constitute a serious breach of contract.
Dow complied, but only after demanding it be exonerated from any legal liability in the future. Dole continued using the pesticide in Nicaragua until the early 1980s, and in the Philippines until several years later.
The 12 former plantation workers Dominguez and Miller represented in the case were intended as merely the first of many potential claimants.
A victory would surely send a clear message to Dole – an American multinational with revenues of almost $US7 billion a year – that settling was a far better option than fighting.
And win they did – up to a point.
Six of the workers were found to have suffered sterility as a result of exposure to the pesticide and were awarded $3.2 million in damages. The jury awarded another $2.5 million in punitive damages against Dole, which it judged to have acted maliciously (Dow was deemed to be 20 per cent responsible).
This, effectively, is the story told in Bananas. But it is a story that Dole spent two years trying to suppress – only to have the story of those efforts told in Gertten’s new film, Big Boys Gone Bananas.
“We were sued [for defamation] personally, me and my producer,” Gertten says of Dole’s response to Bananas. ”They said we would face punitive damages at the beginning, but nothing was presented at court, maybe because they realised, ‘OK, these guys have no money’.”
In the end, Dole lost its campaign to have the film blocked, and costs were awarded to Gertten and his producer, Margarete Jangard. ”But all of that went to the lawyers,” he says. ”We worked for two years without getting paid, so we lost around $200,000.”
Still, he did get a film out of it.
”It was extremely intense to be attacked, but as a journalist it was also kind of interesting to see how they did it, and that’s why I started to document it,” Gertten says. ”My hope is that people see this film as something bigger than my fight against Dole or bigger than bananas. It’s about when the powerful go against the whistleblower, or basically want to shift the focus from the message they don’t want people to hear.”
Dole was remarkably successful on that score. It had some success in appealing that first verdict but, more significantly, the judge ruled witnesses produced by Dominguez in a second case were fraudulent.
There were allegations of evidence tampering, with suggestions that Dominguez had produced ”false” reports of sterility. Suddenly, the lawyer was under investigation, and the judgment against Dole was overturned.
In March 2011 Dominguez was cleared by the state bar of California of any wrongdoing, but by then the damage had been well and truly done. (The overturned verdicts are now under appeal again, with a different lawyer at the helm.)
”This is the success that they’ve had with journalists. ‘OK, they claim that he is dodgy; what do you say?’ And that has tainted the whole story and my film, because a journalist can read that in five minutes. But if you read all the material around the case it gets really complicated, you have to spend a week,” says Gertten.
”In the end, Juan Dominguez wasn’t even charged with anything, but they managed to create a space where he couldn’t do anything. It was like the classic line, ‘I’m not a child molester’. What can you do? In the end, he had no chance to go on with the case.”
The way Dole managed to make the story not about its own negligence in Nicaragua but rather the alleged tactics of Dominguez was, in Gertten’s view, an insight into ”the toolbox of the corporation”.
The way the company came after him was just as instructive.
”Other powerful entities will use more or less the same tactics to go after whistleblowers or critics,” he says.
Gertten says Dole attempted to subpoena his raw footage, hoping to find out-takes that would damage his (and Dominguez’s) case.
They didn’t succeed, but given the fact the oil company Chevron did win a similar case against the documentary maker Joe Berlinger in 2010 (Berlinger estimates his legal costs in the matter at $1.3 million, while the budget of the film in question, Crude, was about $1.2 million) it is a tactic he fears could be on the rise.
”Other filmmakers ask me, ‘What can we do to avoid getting sued?’ And the answer is nothing. You can do your work well, and be careful with the facts so that if you are in a fight, if you get sued, you can defend yourself.”
Gertten fears for press freedom. ”I think we all should be worried because so many of our colleagues are losing their jobs, so every journalist today has to do more stories per day than before, and the PR industry is blooming.”
He believes legislation to force PR companies and think tanks to reveal in whose interests they work might go some way to safeguarding accountability.
”We need to be able to follow the money, we need transparency, because there’s so much covert money in PR aiming to change policies or create news,” he says.
The problem, he suggests, is that journalism and politics are such unstable professions that many people in them have half an eye on their future employment prospects.
”We all know,” he says, ”that maybe our next job will be on the PR side.”
Big Boys Gone Bananas screens at Greater Union Russell Street tomorrow at 9pm as part of the Melbourne International Film Festival, followed by a Q&A with Fredrik Gertten. Details: miff.com.au. Bananas can be viewed online at bananasthemovie.com.
The Age is a MIFF sponsor.