Based on a True Story: Disclaimers in Film and Television – Case Update

In August, we discussed the filing of a USD 170 million lawsuit against Netflix in California. The claimant, Fiona Harvey, is the real-life inspiration behind one of the characters in the Netflix mega hit, ‘‘Baby Reindeer.’’ Ms Harvey, who apparently resembles Martha, a character portrayed on the show as a relentless stalker, is suing Netflix on the basis that the show was presented as a ‘‘true story.’’ However, there were some significant deviations from reality in the storyline which were nevertheless presented as true. Subsequently, Ms Harvey brought a claim for defamation, intentional infliction of emotional distress and negligence.

Latest US Court Ruling 

A US district judge has ruled that Ms Harvey may proceed with her defamation claim. In Judge Gary Klausner's decision, he highlights the significant disparity between the real-life allegations against Ms Harvey and the actions of her fictional counterpart, Martha, in the series. The judge pointed out that the show's portrayal of Martha included acts of sexual assault and violence that were not part of the accusations against Ms Harvey.

The ruling also touches on the potential demonstration of "actual malice" by Netflix. This stems from a Sunday Times article suggesting that Netflix was aware the story had been fictionalised but still chose to present it as factual. Actual malice is a critical factor in defamation cases, especially involving public figures, and refers to the defendant knowing a statement is false or acting with reckless disregard for the truth.

Despite not being named in the series, Ms Harvey was identifiable to the public, leading to severe emotional distress and threats against her. The judge acknowledged that Netflix should have foreseen this outcome and taken steps to prevent it.

While the judge dismissed Ms Harvey's claims for negligence, violation of publicity rights, and punitive damages, he allowed the claim for intentional infliction of emotional distress to proceed. This claim addresses the false statements made about Martha that could be considered "extreme and outrageous."

Fact or Fiction? 

The case serves as a cautionary tale for producers about the implications of labeling projects as true when they contain significant fictional elements. By stating "This is a true story" at the beginning of each episode, Netflix set an expectation of factual accuracy, which was not met. The lawsuit will now focus on whether Ms Harvey can prove defamation and intentional infliction of emotional distress by Netflix's portrayal of her.

Disclaimers are not just a formality; they are a crucial tool in preventing defamation claims. By clearly defining the boundary between fact and fiction, accurate disclaimers protect both the subjects of dramatisations and the creators, managing audience expectations and reducing the risk of legal action. Therefore, they need to be considered carefully.