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Column:'Baby Reindeer' is Netflix's latest defamation headache
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Column:'Baby Reindeer' is Netflix's latest defamation headache
Jun 12, 2024 3:03 PM

(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.

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