The ‘Baby Reindeer’ case against Netflix could hinge on one line: ‘This is a true story’
The pilot episode of Netflix’s hit miniseries “Baby Reindeer” presents viewers with the following message: “This is a true story.”
But how much of “Baby Reindeer” creator Richard Gadd’s fictionalized retelling of a life-altering encounter with a serial stalker is actually true? That is the question at the heart of a high-profile legal case that could influence how scripted adaptations of real events are handled by Hollywood going forward.
In June, the woman who allegedly inspired the stalker character in “Baby Reindeer” sued Netflix for negligence and defamation.
Fiona Harvey’s $170-million complaint accused the Los Gatos, Calif.-based streaming giant of telling “brutal lies” and attempting to “viciously destroy” her life in pursuit of money and viewers — all while advertising the series as a true story.
“This was a really great series that shows how the lines between telling a true story and the art of docudramas can raise unique legal problems,” said Jason Shepard, interim dean of Cal State Fullerton’s College of Communications.
Fiona Harvey, the woman who allegedly inspired the character of Martha in Richard Gadd’s stalker drama ‘Baby Reindeer,’ has sued Netflix for defamation.
The true-story genre has functioned as a reliable source of revenue and awards clout for Hollywood studios for some time, with projects ranging from blockbuster biopics (“Bohemian Rhapsody,” “Bob Marley: One Love”) to gripping TV docudramas (“American Crime Story,” “Inventing Anna”) launching to great success.
But portraying real people and events comes with real risks, and this is not the first time Netflix has been sued for defamation.
In June, the streamer settled a lawsuit filed by former New York City prosecutor Linda Fairstein, who alleged that she was unfairly depicted in Ava DuVernay’s Emmy-winning miniseries about the 1989 Central Park jogger case, “When They See Us.”
As part of the settlement, Netflix agreed to move a disclaimer (similar to the one attached to “Baby Reindeer”) from the end credits to the opening of the show. Fairstein did not receive any money from the agreement, and DuVernay stood by the portrayal.
John L. Krieger, an intellectual property attorney at Las Vegas law firm Dickinson Wright, said that the “Baby Reindeer” case could influence producers and studios to be “more cognizant about making sure that there’s no allegation that something truly is 100% accurate.”
Adapted from Gadd’s one-man show of the same name, “Baby Reindeer” stars Gadd as a struggling stand-up comedian whose life begins to unravel after a woman named Martha Scott (Jessica Gunning) develops an unsettling obsession with him.
The thought-provoking drama won six Emmys last month, including the prizes for limited series, lead actor (Gadd) and supporting actress (Gunning). It also was a massive commercial triumph, racking up more than 88 million views in its first three months on Netflix, according to the streamer.
Netflix and Ava DuVernay have settled a lawsuit filed by former New York City prosecutor Linda Fairstein over the Emmy-winning series ‘When They See Us.’
The alleged “real Martha,” however, was not a fan.
Harvey’s complaint disputes Netflix’s depiction of Martha as a twice-convicted stalker who sexually assaults Gadd’s character, Donny Dunn, and is sentenced to five years in prison for her actions.
“Defendants told these lies, and never stopped, because it was a better story than the truth,” the lawsuit reads, “and better stories made money.”
In a statement, Netflix vowed to “defend this matter vigorously” and “stand by Richard Gadd’s right to tell his story.”
The streamer filed a motion in July to dismiss Harvey’s complaint on the grounds that Gadd’s creation is a form of protected speech and that “no reasonable viewer could understand ‘Baby Reindeer’ as making statements of fact about Harvey,” among other factors.
“Each alleged defamatory statement is presented in the context of stylistic, cinematic choices that reaffirm for the viewer that the Series is not a precise portrayal of historical fact,” the motion reads.
The court granted Netflix’s requests to scrap Harvey’s negligence claims and plea for punitive damages. But it upheld the defamation claim, which it deemed “both legally sufficient and supported by evidence.”
Netflix has appealed the court’s ruling and maintains that Harvey’s lawsuit should be discarded in its entirety.
“We are absolutely thrilled with the court’s decision,” said Richard Roth, an attorney representing Harvey.
“We believe that Netflix has absolutely no right to say this is a true story when it’s clearly untrue. ... They want to appeal it, but good luck appealing it.”
Krieger observed that the judge overseeing the case seemed particularly persuaded by Netflix’s choice to use the phrase, “This is a true story,” as opposed to the more common “based on a true story.” It’s a notable deviation, given that the latter allows more room for creative license.
Linda Fairstein, prosecutor in the Central Park Five case, is suing Netflix and Ava DuVernay for defamation
In the world of docudramas, the based-on-a-true-story phrasing often is played as a get-out-of-jail-free card for defamation claims, Shepard said.
“That disclaimer is important from a legal perspective,” he added, “and it sends a message to viewers not to take everything literally to be true.”
Nicole Page, an entertainment attorney at New York law firm RPJ, found the absence of legal cushion around the true-story language puzzling.
“I don’t understand it,” she said. “I don’t know who made that decision, but that seems fairly risky.”
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Netflix did attach a disclaimer to the end of each “Baby Reindeer” episode explaining that even though the series is based on real events, certain “characters, names, incidents, locations and dialogue have been fictionalized for dramatic purposes.”
Viewers would have to push the “watch credits” button in order to catch it, though, before Netflix automatically starts the next episode.
“Would a reasonable viewer of ‘Reindeer’ think that the real Martha did those things? Arguably, yes,” Shepard said. “Falsely accusing someone of being a criminal is a pretty textbook example of defamation.”
The controversial British Netflix drama about an aspiring comedian who is stalked by a mysterious woman scored 11 Emmy nominations, including for limited series.
Page predicted that if the court rejects Netflix’s appeal, the streamer will try to settle the case — agreeing to pay Harvey a lower sum and possibly amend the “true-story” intro to avert a trial.
Should the case proceed, Page added, Netflix’s defense will depend on whether the content in the series is “substantially true.”
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Gadd has said that a considerable effort was made to obscure the identity of his real stalker when making “Baby Reindeer.” But Harvey’s lawsuit states that fans pinned the story on her after discovering that one of her old tweets resembled a key line of dialogue from the show.
The complaint cites a 2014 tweet from user @FionaHarvey2014 that tagged the account @MrRichardGadd and read, “My curtains need hung badly.” The phrase “hang your curtains” comes up in multiple interactions between Donny and Martha in the series.
Harvey has since spoken publicly about her alleged history with Gadd and accuses Netflix in her lawsuit of doing nothing to fact-check the Scottish performer’s story.
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Krieger speculated that the true-story element might have baited social media sleuths into hunting for the real Martha.
“It’s fascinating how quickly the internet was able to locate [Harvey],” Krieger said, adding that screenwriters might be especially careful in the future to avoid using any specific quotes or references that could be traced to a social media post.
“Certainly those are things that may come into play.”
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