Based on a True Story: Disclaimers in Film and Television

The Netflix drama, ‘‘Baby Reindeer’’ surprised many when it became one of the most talked about shows of the year to date. This is primarily due to the show’s portrayal as a ‘‘true story’’ which left many viewers intrigued enough to try and track down the real-life inspiration behind one of its characters. Their efforts led them to Fiona Harvey, a woman who apparently resembles Martha, a character portrayed on the show as a relentless stalker. 

Following the release of the show to audiences worldwide, Ms Harvey filed a USD 170 million lawsuit against Netflix in California citing defamation, intentional infliction of emotional distress and gross negligence. Could this legal turmoil have been minimised or potentially avoided entirely? Below we look at the importance of and key differences between legal disclaimers in film and television production. 

Fact or Fiction? 

There has been some discussion whether Netflix’s labeling of the show as ‘‘a true story‘’ rather than noting that it was ‘‘based on a true story’’ has contributed to Ms Harvey’s ability to bring a claim. While many films and television shows may be loosely based on real events that are then dramatized for entertainment purposes, the difference here is that each episode of ‘‘Baby Reindeer’’ starts with a statement that reads ‘‘this is a true story’’. But what if all of the story isn’t true? In this case, the show portrays Martha as having been previously imprisoned, but this appears to be a significant deviation from reality for the sake of the storyline, although it is presented as ‘‘true’’. This, along with various other deviations in the show, have ultimately left Netflix more exposed to actions such as those brought by Ms Harvey.

Claims for Defamation 

Litigation against television and film production companies for defamation goes back as far as 1932 when MGM was sued for their portrayal of Princess Natasha in the film ‘‘Rasputin and the Empress’’. The real princess was awarded damages of approximately USD 127,000, equivalent to about USD 2,900,000 today. This consequently led to broad inclusion of the now well-known ‘‘all persons fictitious’’ disclaimer as a way of deterring similar actions. 

Fast-forward to 2022 when Netflix was sued by Georgian chess master, Nona Gaprindashvili, in relation to the series, ‘‘Queen’s Gambit’’. Although not billed as ‘‘a true story’’, a US court found that works of fiction were not immune from defamation claims if real people were slandered. So, are these disclaimers effective at all? 

Based on the California court’s decision, the use of disclaimers such as the standard, ‘‘This series is a dramatization of certain facts and events. Some of the names have been changed and some of the events and characters have been fictionalized, modified or composited for dramatic purposes’’ may be insufficient to protect creators from liability in potential defamation suits if all the elements of defamation are otherwise present. 

In the US, claimants must prove that the depiction complained of was (1) an assertion of fact; (2) actually false or created a false impression about them; (3) highly offensive to a reasonable person, and (4) the show's creator knew the representation was not true or made it with reckless disregard for the truth. So, while the standard ‘‘all persons are fictitious’’ or another similar disclaimer may not provide a full defense, it can be helpful against the ‘‘assertion of fact’’ element of US claims. It is in this context that we can also see the extent of problem created by Baby Reindeer’s inclusion of the wording ‘‘this is a true story’’. 

Looking Ahead

We will have to wait and see what transpires from Ms Harvey’s claim in California. However, producers should take a closer look at what sorts of disclaimers they are using, if any, and reflect on whether they are appropriate, particularly when creating shows based on an individual’s personal experience. We may soon see that taking extra precautions to obfuscate the origins of certain narratives is not only necessary but legally required.