The Netflix television show Baby Reindeer was an overnight sensation. In its first week it earned around 2.6 million views. It was the most watched English television show on Netflix for 3 weeks in a row, and at its peak it topped the list of Netflix’s Top 10 in TV in 90 different countries. It has since been viewed over 80 million times.
The show is a biographical series starring comedian Richard Gadd. It opens with a claim that “this is a true story”. In this story, Gadd portrays Donny Dunn, a struggling comic being harassed by a character named Martha Scott. A Scottish lawyer, Scott is portrayed as having sent Gadd over 41,000 emails, 744 tweets, 100 pages of letters and 350 hours of voicemails, as well as stalking him, sexually assaulting him, and finally pleading guilty and being convicted of harassment and stalking.
Shortly after Baby Reindeer’s release, Fiona Harvey, a Scottish law graduate, publicly claimed to be the “real-life” Martha Scott. Ms Harvey said she was forced to come forward after being subjected to death threats from members of the public who had discovered her identity, using clues from the show to track her down online.
Ms Harvey filed a lawsuit against Netflix in California in June of this year, claiming (among other things) that the show was defamatory. Ms Harvey claims that representations made about her (as the “real life” Martha) in Baby Reindeer are untrue. She claims she never stalked or sexually assaulted Gadd, and that she has never been convicted of a crime.
Last month, Netflix filed motions to strike and dismiss Ms Harvey’s claims. Netflix says that Ms Harvey’s claims cannot succeed, because viewers would not have understood Baby Reindeer to contain statements of literal fact about her (as the series was, Netflix says, clearly dramatised). Alternatively, Netflix says that if the statements in the series are statements of fact about Ms Harvey, then they are substantially true.
Will Ms Harvey’s claims survive the motions filed by Netflix? How would her claim (and Netflix’s defences) be treated from a New Zealand law perspective?
The defence of truth
Defamation law is designed to protect reputation against unjustifiable attack, not to shield a claimant from publicity about their actions.
To succeed in a defamation action, a claimant must establish that a defamatory statement has been made by the defendant, being a statement about the claimant, which would tend to lower the claimant in the eyes of “right thinking” members of society.
It is certainly defamatory to publish a statement conveying that a person is a stalker, is guilty of harassment, stalking or sexual assault, or is a criminal. Under the law of defamation (in both New Zealand and California), a person who publishes a statement has a defence to a claim of defamation if it can be proved that the statement was true.
The underlying rationale for the defence of truth is that a person is only entitled to the reputation that they deserve. A person who behaves badly, and so deserves a bad reputation, cannot use a claim in defamation to shield themselves from legitimate public criticism.
In New Zealand, the defence applies if the publisher can prove that the statement (or more accurately, the meaning conveyed by the statement) was true or not materially different from the truth. In practice, this allows publishers a slight "margin of error", in that they are not required to prove that every fact or implication in their statement is literally true. The focus is more on whether the substance or "sting" of what is alleged is true. A similar approach applies under California law, where the defence will apply if the defamatory meaning is substantially true.
For example, a statement that a person was “guilty of a crime” might be true if the publisher could prove that the person had committed all of the acts comprising that crime, even if the person had not actually been found guilty for it. The statement would still be true in substance, or not materially different from the truth.
Netflix’s motion to strike confirms that they are relying on the defence of substantial truth. Netflix claims that Ms Harvey did stalk and harass Mr Gadd and others, and that she sexually and physically assaulted Mr Gadd. While it appears to now be common ground that Ms Harvey was not criminally convicted of stalking, Netflix say that this is nonetheless substantially true, as Ms Harvey’s conduct would have warranted conviction had she been prosecuted.
A claimant who files a claim of defamation, knowing that the defence of truth will be raised, runs the risk of putting their own actions on trial. Evidence to support a truth defence can be extensive and will often be explored in uncomfortable detail. For instance, in a recent Australian case, Ben Roberts-Smith (a decorated former SAS soldier) sued newspapers who accused him of committing war crimes. The newspapers’ defence of truth succeeded in relation to several claims, with the Court finding that what the newspapers had conveyed was substantially true. This involved the Court considering, in harrowing detail, evidence about Mr Roberts-Smith’s conduct while on wartime missions and essentially concluding that he had indeed committed war crimes.
A similar scene is set to take place here, as Netflix is relying on extensive evidence filed by Mr Gadd. This includes copies of emails, voicemails and letters that he claims to have received from Ms Harvey including threats of physical violence, racist remarks and graphic sexual content. In fact, Netflix has claimed that in many respects, Ms Harvey’s actual conduct is worse than what was shown in Baby Reindeer. Ms Harvey has not yet filed an opposition to Netflix’s motion, and it will be interesting to see whether she challenges this evidence when she does.
What about an existing poor reputation?
Where a claim of defamation succeeds, a claimant is ordinarily entitled to a monetary sum (known as “damages”) to compensate them for the injury to their reputation. But to say that a person’s reputation was injured assumes that the person had a good reputation to start with. What if the person already had a bad reputation, and the statement made about them wouldn’t tend to make much of a difference in the eyes of the public?
Netflix claims that Ms Harvey already had such a bad reputation that it was not possible for the statements in Baby Reindeer to lower her reputation any further. In particular, they refer to Ms Harvey having been publicly accused of stalking and threatening a lawyer and politicians in the past (including the UK’s current Prime Minister Sir Keir Starmer). Under Californian law, a person who has such a pre-existing bad reputation is referred to as “libel-proof”.
The relevance of a pre-existing bad reputation is not yet completely resolved in New Zealand. It can certainly be relevant to the damages that are awarded, if a statement is found to have defamed a claimant. But its relevance to whether the statement defamed the claimant is not clear. A recent case (Talley's Group Ltd v TVNZ) found that evidence of a claimant’s prior misconduct was not relevant to whether the allegedly defamatory statements affected the claimant’s reputation in a more than minor way. This decision has been appealed, so that position may yet change.
Identification of the claimant – by members of the public “sleuthing”?
For a statement to be defamatory of a claimant, it must be understood as being about that claimant. Ms Harvey will need to establish that statements made about “Martha” would have been understood by viewers of Baby Reindeer as being about her specifically. Identification by name is not strictly necessary. Identification can come from ‘special facts’ being known to some viewers which led them to identify her.
While Ms Harvey is not identified in Baby Reindeer by name, she claims that identifying her as “the real Martha” was easy, because members of the public managed to identify her within days of the show being released. She was apparently not identified due to pre-existing "special fact" knowledge that these viewers held at the time of viewing the show, however. Instead, she was identified after viewers trawled through public posts sent to Gadd over the years until they located posts which mirrored those sent by Martha to Donny in the Netflix show.
Would this be sufficient to establish identification?
Traditionally, defamation law has taken a cautious approach in cases where not all the information necessary to identify the claimant is known by the viewer at the time the defamatory statement is published. Courts will however allow claimants to refer to "surrounding circumstances" to prove identification, such as an earlier article published about the claimant that allowed viewers to "connect the dots". But this still assumes that viewers, having that pre-existing knowledge, will identify the claimant upon seeing or hearing the defamatory statement. What about online posts and tweets allowing the "connecting of dots" that viewers would only have discovered if they subsequently went searching for them after watching the show?
It is likely that this would still meet the test, assuming the Californian court follows Australia’s approach. Australian defamation cases (such as this one) have recognised two facts relevant to defamation in the smart phone age: (1) publication of a defamatory statement about an unnamed person can excite the public’s interest in finding out their identity; and (2) the internet is a highly accessible and effective source of identifying information. If details in the published statement allow a reasonable viewer to search online to locate identifying information sufficient to "connect the dots", then Australian courts have found the publisher liable for defamation even where the claimant is not named in the publication itself.
If Netflix appreciated that viewers would try to discover Ms Harvey’s identity and gave those viewers sufficient details to allow online sleuths to track her down online, this could be sufficient for identification (assuming that the Court accepts the statements made in Baby Reindeer were about Ms Harvey, and would have been understood by viewers as such – more on this below).
A “true story” – or not?
In Netflix’s motions to dismiss and strike Ms Harvey’s claims, they say that viewers of Baby Reindeer would not have understood the series to contain literal facts about Ms Harvey. While the story may have been based on Mr Gadd’s experiences (and in his words, “emotionally true”), Netflix claims the series is clearly fictionalised, and points to dramatic elements like the score, cinematography and narrator that are said to have reinforced this to viewers.
But what about the opening claim: “this is a true story”? Netflix says this claim, which was “stylized … in Martha’s trademark font”, was merely a further dramatic element that indicated the work was fictional. They have also pointed to a disclaimer in the closing credits which notes that certain aspects of the story have been fictionalised for dramatic purposes. (We note that Netflix’s "autoplay" feature would appear to move the viewer onto the next episode of the series before this disclaimer is shown in the credits.)
We will be watching with interest to see whether this disclaimer is found to negate the impact of the opening claim. And we (and no doubt many others) will be following the progress of Ms Harvey’s claim with interest.
