The real Martha

The Netflix hit show ‘Baby Reindeer’ represents a true cultural moment of 2024. It is fast becoming one of Netflix’s most watched and talked about shows ever. It tells the story of an aspiring comedian played by Richard Gadd, as himself (he also wrote the show), and claims to follow his real-life experiences of being stalked by a character known as Martha.

Following the show’s release, frenzied speculation ensued as to the identity of the ‘real-life Martha’. Internet sleuths eventually revealed her identity as Fiona Harvey. .

CALIFORNIAN v ENGLISH COURTS

Baby Reindeer is set in Edinburgh and London. It features British actors and it was produced by a British production company. However, despite the show’s British origins, California (where Netflix is headquartered) is the obvious first choice jurisdiction for any lawsuit brought by Ms. Harvey.

In addition to defamation laws protecting a claimant’s right to reputation, Californian law offers robust protection of the ‘right of publicity’ i.e. the right to control commercial use of an individual’s name, image & likeness. English courts offer no directly equivalent protection. Californian courts may also award vast damages to successful libel claimants including the award of punitive damages; and the law firm acting for Ms. Harvey is certainly seeking American style damages demanding $170,000,000 from Netflix for ‘destroying’ its client’s reputation with ‘brutal lies’ (Netflix intends to ‘defend this matter vigorously’). Damages on this scale would not be recoverable in an action for defamation in the English courts. It remains to be seen whether or not proceedings in the High Court follow.

PROSPECTS OF SUCCESS

US defamation claims are regarded as harder to win than equivalent claims under English law. Under Californian law (but not under English law) a claimant must show that the defendant knew that the statement complained of was untrue, or that they were reckless as to its veracity. The continued right of a claimant to demand trial by jury in defamation claims in California (as Ms. Harvey has done) retains an additional element of ‘litigation risk’ in the Californian courts. However, the US litigation relies on a wider range of causes of action than would be available to Ms. Harvey under English law. She alleges that the streaming giant has committed acts of defamation, intentional infliction of emotional distress, negligence, gross negligence and violations of her right of publicity.

In defamation proceedings in the High Court, Ms. Harvey would need to prove that the statement complained of referred to her, that the statement was defamatory of her (i.e. it will tend to lower [the claimant] in the estimation of right-thinking members of society generally) and that the statement was published by the defendant (or it was responsible for its publication). Publication of the statement complained of would also need to meet the ‘serious harm’ test under section 1(1) of the Defamation Act 2013, i.e. that the statements has caused, or is likely to cause, ‘serious harm’ to her reputation. Focus would inevitably fall on the issues of identification and defamatory meaning.

IDENTIFICATION

English courts would need to grapple with question of whether viewers would understand each statement complained of to refer to Ms. Harvey. The series does not disclose her identity. However, it contained sufficient clues to enable others rapidly to work it out. Richard Gadd playing himself, and on-screen Martha bearing a striking physical resemblance to real-life Martha, no doubt aided this process. Two further points present potential difficulties for Netflix: Martha’s true identity may have been obvious from the outset to persons acquainted with Ms. Harvey, and the show has remained available on Netflix even after the blaze of publicity that revealed Ms. Harvey to be the real-life Martha.

DEFAMATORY ALLEGATIONS

The onus would be on Ms. Harvey to assert the imputation conveyed by each statement complained of, e.g. that she is a twice convicted stalker who was imprisoned for her crimes, as pleaded in the US proceedings (Ms. Harvey asserts that both allegations are defamatory and false). Here again Netflix has created difficulties for itself. Baby Reindeer’s opening credits baldly state: ‘This is a true story’. There is no disclaimer added that it is merely ‘based on’ or ‘inspired by’ a true story unlike The Crown, where Netflix marketed later series as a "fictional dramatization…inspired by real-life events". Whilst inclusion of a disclaimer would not give Netflix a free pass in its portrayal of Martha, its absence has reduced its legal cover. If Ms. Harvey can establish her case, Netflix will need to consider possible substantive defences. Any attempt to defend the drama as ‘substantially true’ would require a detailed examination of the relationship between Mr. Gadd and Ms. Harvey.

INDUSTRY IMPACT

The television genre of biopics covering recent events has grown in popularity in recent years. There is clearly potential for an individual featured in such a show to bring a claim for defamation for an unfavourable onscreen portrayal (in biopics ‘identification’ will not be in issue). Regardless of how Ms. Harvey’s claim plays out, the fallout from Baby Reindeer will have a far reaching impact on the television legal industry for years to come.

Alec Cameron – Legal Director in Reputation Management at Birketts LLP and member of the Forum of Insurance Lawyers (FOIL)

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