Did Netflix push the boundaries of “based on a true story”? Scott Hervey and Jamie Lincenberg discuss Harvey v. Netflix, the risks of docudramas, and explain how truth and fiction collide in this high-stakes lawsuit on this episode of The Briefing.

Watch this episode on the Weintraub YouTube channel.

Cases discussed:

• Fairstein v. Netflix
  
• Williams v. Netflix
  
• Harvey v. Netflix
  

Show Notes:

Scott:
It seems like every good docudrama results in a defamation lawsuit. There is the recently settled lawsuit, Fairstein versus Netflix, which is a defamation claim over the portrayal of Linda Fairstein, former New York City prosecutor in the Netflix series, ‘When They See Us.’ Then there’s Williams versus Netflix, a defamation lawsuit brought by then Vanity Fair photo editor, Rachel Williams, whose friendship with Anna Delvey is highlighted in the Netflix series, ‘Inventing Anna.’ Then there’s the defamation case du jour, and for some reason, the one that seems to have Hollywood’s current attention, Fiona Harvey versus Netflix, the defamation case surrounding the Emmy Award-winning series, ‘Baby Reindeer.’ Earlier this month, a California federal court hearing the dispute denied Netflix’s anti-slapp motion and allowed the plaintiff’s defamation case to go forward.

I’m Scott Hervey, a partner with the Entertainment and Media Group at Weintraub Tobin, and today I’m joined by my colleague, Jamie Lincenberg. We We are going to talk about this case and the lessons in the court’s opinion for avoiding claims like this on today’s episode of The Briefing. Jamie, welcome back. It’s good to have you.

Jamie:
Thanks, Scott. Great to be here again.

Scott:
Let’s get into this, Jamie. Can you give us a little rundown of what happened in this case?

Jamie:
Absolutely. This lawsuit stems from the Netflix series, Baby Reindeer, if you’ve seen it, inspired by the real-life experiences of comedian Richard Gad, following his early career as a stand-up comic in Scotland. The series depicts a character named Martha, who is a stalker of Gad’s character. Martha is portrayed as a troubled individual, a convicted criminal who spent five years in prison for stalking, a violent individual who sexually assaults Gad in a public setting, and a relentless stalker who harasses Gad at his home and workplace.

Scott:
Jamie, have you seen this Have you seen Baby Reindeer yet?

Jamie:
I have.

Scott:
Okay. I haven’t. So Jamie, it’s on my list to watch, but feel free to add color commentary as we’re going through. So Fiona Harvey, she’s the plaintiff in this case. She claims that the The character of Martha is clearly based on her and that these portrayals are entirely false and defamatory. Harvey asserts that this serious portrayal of Martha goes far beyond the actual events and fabricates serious criminal acts she never committed. This, she argues, has caused severe damage to her reputation and her emotional well-being, which led her to file this lawsuit against Netflix for defamation and other claims.

Jamie:
Netflix fired back with two key legal endeavors. First, they filed a special motion to strike, also known as an anti-slap motion, aiming to have the entire case dismissed. Second, they filed a motion to dismiss, seeking to to go out the individual claims that Harvey brought against them.

Scott:
We’re going to focus on the anti-slap motion and Harvey’s defamation claim here. And by the way, those were… Her defamation claim was the only claim that actually survived. So anti-slap laws are designed to protect individuals from frivolous lawsuits aimed at silencing their free speech, especially when they speak out on matters of public concern. In California, where this case was filed, an anti-slap motion requires the defendant to first demonstrate that the plaintiff’s claims arise from a protected activity. If the defendant meets this burden, then the burden shifts to the plaintiff to prove that the plaintiff has a probability of prevailing on the merits of their claim.

Jamie:
And here, Netflix was able to successfully argue that this case involved a protected activity.

Scott:
That’s right. The court agreed with Netflix that the series and the statements made about Martha are protected speech under the First Amendment. The court reasoned that the series touches on important social issues like stalking and sexual harassment matters that are frequently debated in public forms.

Jamie:
Furthermore, the court recognized that this series isn’t presented as a strict documentary or a news report. It’s a fictionalized retelling of Gad’s life, taking creative license with events and characters for dramatic effect. The court even pointed to a disclaimer in the series, acknowledging that certain elements had been fictionalized.

Scott:
That’s right. However, even though Netflix was able to show that their actions fall under protected speech, the burden then shifts to the plaintiff, and the plaintiff can still move forward if they can demonstrate a probability of prevailing on the merits of their claim. Now, this is where the court’s analysis of Harvey’s defamation claim becomes crucial.

Jamie:
So let’s dive into that. What were the key elements that Harvey had to prove for her defamation claim to survive?

Scott:
So for a defamation claim to be successful in California, a plaintiff must generally prove that, one, the defendant made a false statement of fact of and about the plaintiff. Two, the statement was published to a third party, three, the statement caused harm to the plaintiff’s reputation, and four, the defendant acted with at least negligence or actual malice if the plaintiff is a public figure.

Jamie:
So let’s focus on the court’s analysis regarding whether character traits attributed to the character Martha were of and about Fiona Harvey.

Scott:
So the court says that this is not the case where a plaintiff can be one of hundreds of people that match a fictional character’s broad characteristics. Specifically, Martha and the plaintiff, Fiona Harvey, are both Scottish lawyers living in London. They’re both about 20 years older than Dawn Gad. They’re both accused of stalking a lawyer in a newspaper article, and they both communicated with Dawn and Gad on social media. Now, while there may be numerous Scottish lawyers living in London of the same approximate age as Fiona Harvey, The court said it is very likely that only Fiona Harvey has been accused of stalking a lawyer in a newspaper article while also communicating with Gad on social media.

Jamie:
Netflix argued that despite these similarities, a reasonable person would not have identified Harvey as Martha because it required some degree of research to come to this conclusion. However, it seems that the court believed that it required little effort to put those pieces together. Gad had an interview with GQ where he stated that Martha is based on a real stalker, which the court says could be seen as an invitation to locate Fiona, with Fiona’s public post on Gad’s social media referencing a joke featured in the series. It also didn’t help that the series was portrayed as being a true story.

Scott:
No, that’s correct. The court also pointed out that there were other character traits, personality traits, that were shared between the character Martha and Harvey. So once the court decided that these character traits attributed to Martha were of and about Fiona, the court went through the remaining elements to find defamation. The court found that the offending statements, notably that Martha was a twice-convicted criminal that spent five years in prison for stalking, that Martha violently attacked Donny, and that Martha previously stalked a police officer, and that Martha stalked Donny by waiting outside his home every day for up to 16 hours a day, the court found those were assertions of fact and not the producer’s opinion.

Jamie:
The court also found that the statements were not substantially true. The court noted significant differences between the series Portrayal of Martha and the documented facts of Harvey’s actions. The court also found that Fiona Harvey was not a liable proof plaintiff.

Scott:

Now, that’s an interesting argument that was advanced by Netflix. Let’s just talk about that for a little bit. Under the liable proof doctrine, a plaintiff’s reputation with respect to a specific subject may be so badly tarnished that he or she cannot be further injured by allegedly false statements on that subject. But that doctrine has been sparingly applied. I’ve actually looked into this doctrine for a couple of studio clients when we were looking at potential defamation issues. And even where this doctrine has been applied, its application has to be limited to the same subject for which the reputation was tarnished. With regard to Harvey, the court said that even though her public reported stalking tarnished her reputation, it was reported only a handful of times, and it was over 20 years ago. The court said that it’s difficult to imagine that such scant publicity would render her reputation so badly tarnished that she could not be defamed 20 years later. The court said further that even if plaintiff could be considered liable proof on the subject of stalking, it seems unlikely that this would apply to false statements of sexual assault and physical violence.

Jamie:
Netflix also argued that Harvey was a public figure and that she couldn’t establish actual malice. The court found that she qualified as a limited purpose public figure because of her involvement in a public controversy surrounding her stalking charges and her attempt to seek political office. If a plaintiff qualifies as a public figure, he or she must demonstrate that the defamatory statement was made with actual malice, meaning knowledge that it was false or with reckless disregard of whether it was false or not. This is a higher standard of proof than the negligence standard required for a private individual.

Scott:
So this is the court’s rationale for finding actual malice. The court found that the statements were made with actual malice. This is what the court The court said, The series was adapted from Gad’s Theater Play, which stated that it was, quote, based on a true story, close quote. According to the court, this disclaimer put Netflix on notice that certain details were likely false. Yet, according to a Sunday Times article that was introduced into evidence, apparently, Netflix insisted on adding, This is a true story line to the series despite Gad’s concern. But the court found that this suggests a reckless disregard of whether statements in the series were false and thus establishes actual malice. Now, this is as an aside. If a litigator in our audience wants to explain to me how this Sunday Times newspaper article was introduced into evidence, given that newspaper articles generally are hearsay, I would appreciate that very much.

Jamie:
This is not a good outcome for Netflix. Scott, what are the key takeaways from this case for our listeners? Really, what should the producers have done differently here?

Scott:
Yeah, that’s a great question. We can start with the statement that Baby Reindeer was a true story when it wasn’t. Gad’s Play, which was the basis for this series, said that it was based on a true story, so they probably should have stuck with that. Also, there are similarities between Harvey and Martha, and the producers maybe should have paired them back. Could she been an Australian or an American lawyer or maybe an accountant. But I have to say, I really think that the assertion that Baby Reindeer was a true story hurt Netflix the most. If the producers hadn’t made that statement and included the disclaimer at the end, which they apparently did include, and the other traits remained the same, I think there would have been an entirely different outcome in this case.

Jamie:
Yeah, I agree, Scott. I think that the true story piece was really the cherry on top of the plaintiff’s argument.

Scott:
Yeah, I agree. But I still think that the court finding that the statements, the character attributes of Martha were of and about Fiona, I do think they were thin. But we now have to deal with that, and we have to understand that when we’re representing our studio and production company clients who are producing docudramas, we have to now appreciate that the risk associated with only a few shared character attributes between a real-life person and a character on the screen could be the basis for a defamation lawsuit, which really shows why you should fictionalize your characters, because I don’t know, I think you could still tell the story. I think Baby Reindeer would still be just as great. I mean, you tell me, would Baby Reindeer be just as great if Fiona was an architect or an accountant? Sure. Well, that’s all for today’s episode of The Briefing. Thanks to Jamie for joining me today. And thank you, the listener or viewer, for tuning in. We hope that you found this episode informative and enjoyable. And if you did, please remember to subscribe, leave us a review, and share this episode with your friends and colleagues.

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