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Deerly defamed: The Martha Harvey vs. Netflix defamation claim

In the curious case of Fiona Harvey versus the streaming giant Netflix, the plot thickens. 

Netflix’s latest hit show ‘Baby Reindeer’ has got everyone talking. The show follows comedian, Richard Gadd (as himself), and his real-life experiences with a stalker. However, since the show aired earlier this year, there has been significant legal and ethical debates around privacy and commercial exploitation and whether Netflix owed a duty of care to Ms Harvey. 

Ms. Harvey, who has allegedly found herself the unwilling muse for the character 'Martha' in the Netflix series 'Baby Reindeer', is not just suing for a few bucks to cover her Netflix subscription: she's going for a $170 million lawsuit.  Ms Harvey claims the show’s alleged inability to protect her identity resulted in defamation, negligence, intentional infliction of emotional distress and violations of the right of publicity. Now, let's set the stage for what makes a defamation case more gripping than a season finale cliffhanger…or not. 

It is important to note that (for now) Harvey’s claim has been filed and will be heard in California, USA. If this claim were to be brought in England and Wales, the Defamation Act 2013 would be the relevant authority. To succeed in a claim under this act, if the claimant is an individual, the claimant must prove that a defamatory statement was made about them and published to a third party and that the statement caused, or is likely to cause, “serious harm” to their reputation. 

In this case, the court would likely examine the extent to which the character, ‘Martha’, in ‘Baby Reindeer’ is perceived and implied to be based on Ms Harvey and whether this portrayal has caused serious harm to Harvey’s reputation in the eyes of reasonable right-thinking members of society. 

In England and Wales, the burden of proof in defamation cases lies with the Defendant i.e. Netflix, to prove that the alleged defamatory statements are true, constituted fair comment or were made in the public interest based on the context of the portrayal (note that in the USA, the burden of proof falls on the claimant).

Additionally, since the case involves artistic expression, in the US Netflix might also argue the defence of artistic license and freedom of expression. However, if the court finds that the show's creators did not take reasonable care to fact-check the portrayal of events and characters, and that the show caused serious harm to Harvey's reputation, she could have a strong case. 

Defamation law is complex, and cases are often decided on very specific factual details. Therefore, the outcome would heavily depend on the evidence presented and the legal arguments made by both parties. 

What are the implications if Harvey is successful?

This case could alter the balance between creative freedom and the protection of personal rights in the entertainment industry, particularly in respect of how real-life/true stories are adapted and presented. We could see more stringent guidelines and rigorous fact-checking processes before such stories are dramatised for public consumption and we could see a shift towards greater accountability and accuracy in storytelling. 

In cases where real-life events are depicted, we could see increased legal scrutiny and higher production costs due to the need for thorough research and rights clearances. This case could also influence how individuals' privacy and life stories are protected, and how far creators can go without infringing on the rights of the people involved. 

It has recently been reported that, Duane Dedman, an experienced broadcast compliance expert, told the Royal Television Society “On Baby Reindeer the short answer is I have no idea how Netflix can justify saying this is a true story and then at the end of the end credits say something like, some scenes were fictionalised and the characters conflated.

“That’s obviously seen as contradictory, and we shall see if the court case in America ever goes to trial or whether they settle out of court.”

Further Mr Dedman opined that arguably Netflix owed Ms Harvey an apology whilst acknowledging this will likely “play out in the courts”.

This is an intriguing case. One which is likely to delve into the intricacies of how the show was developed, the research conducted, and the decisions made regarding the portrayal of the 'Martha' character. It will require scrutiny of the creative liberties taken by Netflix when weighed against the rights of individuals to protect their reputation and privacy. 

This is definitely “one to watch”.