(The opinions expressed here are those of the author, a
columnist for Reuters.)
By Jenna Greene
June 12 (Reuters) - The truth may be stranger than
fiction, and when it comes to television shows and movies, it
can also be more expensive - at least if defamation lawyers get
involved.
Last week, a woman sued Netflix ( NFLX ) seeking $170 million or
more, claiming she's the real-life version of the "Baby
Reindeer" character Martha. Plaintiff Fiona Harvey says Netflix ( NFLX )
defamed her in the hit mini-series, which bills itself as "a
true story," by falsely portraying Martha as a twice-convicted
criminal who spent five years in prison for stalking.
"Netflix ( NFLX ) grossly mischaracterized the truth," her lawyer
Richard Roth of The Roth Law Firm told me via email. "There are
so many untruths in that 'true story' that we could not list
them all."
A Netflix ( NFLX ) spokesperson said that the company intends "to
defend this matter vigorously" and that it stands by series
creator and star Richard Gadd's "right to tell his story."
A PR representative for Gadd, who is not named in the suit,
did not respond to a request for comment.
Gadd in the show plays a fictional version of himself, a
struggling comedian named Donny Dunn, who is stalked by Martha
in a series that critics have called a "twisted spellbinder" and
a "devastating examination of trauma and abuse."
Harvey's defamation suit is the latest in more than a dozen
actions against Netflix ( NFLX ) stemming from productions inspired by
real-life events, according to my search of court records, all
filed by parties that say they've been harmed by the portrayals.
Some, like suits arising from "When They See Us" and "The
Queen's Gambit," have settled. Others, including claims based on
"The Laundromat," "Making a Murderer" and "No Limit," were
tossed by judges. Others including litigation over "Inventing
Anna," "Varsity Blues" and "Surviving R. Kelly," are ongoing.
A Netflix ( NFLX ) spokesperson did not respond to a request for
comment about the company's defamation docket.
Despite the litany of cases, such suits are generally "tough
to prove for plaintiffs," Bryan Sullivan, a founding partner at
Early Sullivan Wright Gizer & McRae in Los Angeles who
represents plaintiffs and defendants in defamation cases, told
me.
Netflix ( NFLX ) and other media companies tend to be protected by
"what lay people call literary license," in which even "true"
stories may include a creative re-interpretation of actual
events, Sullivan said.
Plaintiffs-side defamation lawyer Daniel Watkins said that
in addition to 1st Amendment protections, state-level anti-SLAPP
laws allowing defendants to counter free speech-related lawsuits
make defamation cases difficult to win.
Still, the "Baby Reindeer" suit, which was filed on June 6
in Los Angeles federal court, may "give a lot of folks at
Netflix ( NFLX ) quite a bit of heartburn," said Watkins, a name partner
at Meier Watkins Phillips Pusch.
Under defamation law, he said, a central question is whether
a subject whose name has been changed is nonetheless
identifiable based on the story.
To avoid litigation, the first goal for content producers
"is to make sure the story is presented dissimilarly enough so
that folks can't identify the players," he said.
But if the audience can indeed figure out who's who, it
becomes "incredibly important to make sure key facts are
correct, and that any embellishments or other liberties taken
with the story don't result in defamation," Watkins said.
Like the "Baby Reindeer" character Martha, Harvey in her
complaint said she is a Scottish lawyer living in London who is
20 years older than Gadd. Her complaint also says she was once
accused in a newspaper article of stalking a lawyer, and that
she patronized the pub where Gadd worked in 2014 and where much
of "Baby Reindeer" takes place.
Moreover, the complaint says that she "bears an uncanny
resemblance" to actress Jessica Gunning, who plays Martha - and
who adopted an accent and manner of speaking "indistinguishable"
to Harvey's in playing the role.
Netflix ( NFLX ) and Gadd have not publicly confirmed or denied
Harvey is the basis for Martha.
If Netflix ( NFLX ) figured no one would be able to find the real
Martha, it miscalculated, according to Harvey's complaint.
She claims she was outed by internet sleuths within days of
the show's release in April.
The tip-off? In the show, Martha and Donny use the rather
distinctive phrase "hang my curtains" as a euphemism for sex.
In 2014, Harvey tweeted to Gadd, "My curtains need hung
badly" - a message that was still publicly visible on Gadd's
Twitter account when the show, which according to Variety has
attracted 84.5 million views, aired.
Harvey in the complaint said she's been bombarded with
negative messages on social media such as "You are a horrible
person" and "Psycho stalker." A TikTok post, "Fiona Harvey count
your days," got more than 7,000 likes. (Harvey did not respond
to my Facebook message seeking comment.) She says she's now
"afraid to go outside."
But here's the key in all of these cases: Truth is a defense
to defamation under the 1st Amendment.
Harvey protests that multiple events depicted in "Baby
Reindeer" including a scene where Martha sexually assaults Donny
in an alley and another where she smashes a bottle over his
head, are false.
Whose version of those events is more credible may be a
question for a jury to decide.
But one objectively verifiable assertion is whether Harvey
spent five years behind bars for stalking Gadd and another
woman. In the show, Martha did. In real life, Harvey says she
didn't, and that she has never been convicted of a crime.
If Harvey is right, Netflix ( NFLX ) lawyers may indeed have some
heartburn in store as this case unfolds.