Update on Rachel Williams’ defamation lawsuit against Netflix’s “Inventing Anna.” Weintraub lawyers Scott Hervey and Jamie Lincenberg discuss the recent court ruling as a warning for docudrama producers on “The Briefing.” Get the full episode on the Weintraub YouTube channel here or listen to this podcast episode here.

We have an update on the defamation lawsuit brought by Rachel Williams, the Vanity Fair photo editor whose friendship with Anna Delvey, who passed herself off as German heiress Anna Sorkin, was featured in the Netflix series Inventing Anna. The news is not great for Netflix, and this should be a warning for producers of docudramas who take creative license with facts. I’m Scott Hervey from Weintraub Tobin, and today, I’m joined by fellow Weintraub lawyer Jamie Lincenberg. We are going to review this lawsuit, the recent court ruling not allowing Netflix to get out from under William’s defamation claim, and talk about how this should be a concern for producers of the genre du jour docudramas on today’s installment of “The Briefing” by Weintraub Tobin. Jamie, welcome back to “The Briefing.”  

Thanks for having me today, Scott.  

So, let’s jump right into this. For those who may not remember, Rachel Williams is a real person. At the time of her portrayal in the Netflix program Inventing Anna, she was a Vanity Fair photo editor and a friend to Anna Delvey, also known as Anna Sorkin. Williams did not come across well in inventing Anna.  

No, she didn’t. She comes across as a privileged freeloader who sponges off of Sorkin and then abandons her when her real situation comes to life.  

True, true. She does come across that way. As a result, Williams sued for defamation. Now, in order to prevail, she would have to demonstrate that her portrayal in inventing Anna was an assertion of fact was actually false or created a false impression about her, that it was highly offensive to a reasonable person or was defamatory. Since Williams is a public figure, she published a story in Vanity Fair and published a book about her experience with Sorkin; she must also prove by clear and convincing evidence the statements were made with actual malice, meaning that the defendants knew that the statements were false or had serious doubts about the truth of the statement.  

There are numerous instances of William’s portrayal in this series, she claims to be actionable. We recently reran the podcast episode where you first reported on this lawsuit, where you covered all of the instances in detail. So, there’s no need to do that here. Instead, let’s look at the two portrayals addressed by the court in denying Netflix’s motion to dismiss. Both of those have to do with the scene in Morocco where Williams leaves.  

That’s right. The first portrayal comes after several scenes depicting the problems with the credit cards at the hotel and a very expensive private museum tour. Williams tells Anna, who is portrayed as being alone in her room, drinking and heavily depressed, that she is leaving. Sorkin is portrayed as begging Williams not to leave her, but Williams leaves anyways. Now, the next portrayal is the following statements that’s made by another character in Inventing Anna. This character says, “Please, Rachel abandoned Anna, kicked her when she was down, and left her alone in some foreign country. Rachel’s happy to call herself Anna’s friend when it means free ‘stuff’ trips to Morocco. But as soon as times got tough, some friend.” actually, the character didn’t say “tough” or “stuff,” she said some expletive that we won’t use here on the pod. So according to the complaint, Williams alleges that these statements are false, as Williams had a pre-existing business meeting in France. And Williams told Sorkin, prior to the pair heading to Morocco, that she would have to leave early. Also, according to the complaint, when Williams left Morocco, Sorkin was not sad, was not depressed, and was not alone. Williams alleges that those statements in those scenes are defamatory because Williams is falsely portrayed as a fair-weather friend who abandoned Sorkin when she was alone, depressed, and in trouble in Morocco and needed help and support. Williams claims that these are negative personal traits or attitudes that she does not hold.  

The court does agree that Williams plausibly alleged that both of these statements are false statements of fact and are defamatory. Netflix tried to argue that the statements were substantially true because Williams actually left Morocco before Sorkin to go to France, and before knowing Sorkin was a fraud, Williams had also decided to give the relationship some space. But the court didn’t buy it or the argument that other scenes in the series portraying Williams as a true friend, somehow make these two portrayals not defamatory.  

That’s right. The court states that in context, these other scenes, which make Williams look like a true friend, do not nullify the portrayal of Williams leaving Sorkin in a troubled state, nor do they rectify the potentially defamatory nature of these two portrayals. Based on the finding that Williams had properly pled a defamation claim based on these two statements, the court said it did not need to decide whether any of the remaining allegedly defamatory statements were actionable. Now, remember, this is just a motion to dismiss where the court examines whether the complaint includes sufficient factual allegations to state a possible claim for defamation and it left the examination of these other statements for later action in the case.  

Right. But the result is that this case goes forward into discovery, which is not only time-consuming but expensive and William’s leverage and the potential settlement value just went up significantly, I would say.  

Yeah, I agree with that assessment.  

As we’ve seen with other docu-drama defamation cases, one of the big risk points seems to be when a producer fictionalizes part of a storyline, especially when the truth and the fictionalized version are so divergent that it would cause viewers to feel differently.  

Right.  I can only imagine why Shonda Rimes decided to play the scene the way she did. I have no insight into why she did it. It certainly makes Anna look more sympathetic, and it supports the character’s role as the show’s anti-hero. Look, Delvey was convicted on eight charges, including second-degree grand larceny in theft of services and first-degree attempted grand larceny. But in watching the show, and I watch the show, you really can’t help but root for her. So certainly, Shonda Rimes may have had very good reason to play the scene the way she did, creatively. But this little twist in the narrative now exposes Netflix to liability. That’s the lesson for producers of docudrama. Any deviation from the truth needs to be examined from a legal risk perspective. If you need a scene to play a certain way in order to deliver a specific emotion or narrative, make up the scene and have the characters interact with made-up characters who display the necessary or needed defamatory traits.  

That’s a good point. If the case doesn’t settle, I’m sure that Netflix will eventually bring a motion for summary judgment down the line. So, Scott, let’s be sure to report back then.  

Oh, we certainly will. Thank you for listening to this episode of The Briefing. We hope you enjoyed this episode. If you did, please remember to subscribe, leave us a review, and share this episode with your friends and colleagues. And if you have any questions about the topics we covered today, please leave us a comment.