Dear Gossips,
Baby Reindeer is one of the breakout series of the year (so far) and is expected to be a top contender in the limited series category at the Emmys. Stephanie wrote about the series’ “radical empathy” and the reason it has touched so many people though it is an emotionally harrowing tale of stalking and assault.
It also spurred internet sleuths determined to find the “real Martha”, the woman who inspired Jessica Gunning’s stalker character in the show. Last month, Fiona Harvey came forward as the real Martha, disputing show creator Richard Gadd’s version of events. Now, Harvey is making good on her threat to seek legal action, launching a $170 million lawsuit against Netflix.
She’s suing for defamation and privacy violations, among other things. Her defense seems to be “that’s not what happened”, which like…okay? Gadd changed everyone’s names, and Baby Reindeer is a dramatic series, not a documentary. It’s based on Gadd’s own experiences, but I think people generally accept dramatization of real events, especially when it IS presented as fiction.
For instance, Netflix just settled with former prosecutor Linda Fairstein, who led the prosecution of the “Central Park jogger” case and was portrayed by Felicity Huffman in Ava DuVernay’s series about the Exonerated Five, When They See Us. In that case, though, it came down to “based on a true story” and the fact that the show kept everyone’s real names as character names. It was kind of looking like Netflix would lose because a jury could probably be convinced that the series’ unflattering depiction of Fairstein extended into full-blown defamation, since there was no delineation between the character “Linda” and the real person
But Baby Reindeer isn’t a docu-series. When They See Us had a standard “fictionalized for the purposes of dramatization” disclaimer, which Netflix moved from the end of episodes to the beginning as part of their settlement. Baby Reindeer has no such disclaimer, it just starts as any narrative TV show would, including I May Destroy You, which was also drawn from real life, in this case, creator Michaela Coel’s experiences. And again, Baby Reindeer changed everyone’s names, and isn’t pretending to be a documentary.
The show is presented from one character’s point of view, so we understand it to be “Donny’s” version of events, and all the names are changed, so we inherently understand this is fiction, not fact, even if it is drawn from Richard Gadd’s life. If there is a legal weakness in Baby Reindeer, it’s probably using real social media posts on screen. Usernames were changed, but you can search Twitter, etc, with key words to find the real posts, so that might be the strongest point of privacy violation.
Defamation cases can be slippery, and I don’t know how this one will play out, but I feel like the defense could just be “you could have sat there and ate your food, and no one would be the wiser”. Maybe the internet would have found Fiona Harvey, but there is a big difference between the internet being like, I think that’s her, and the person herself saying, This is me. Plus, she filed in California, home of Netflix, but not the UK, home of her and Richard Gadd. The US has stronger free speech protections, for one, but also, in the US, the burden is on the claimant to prove they have been defamed. Netflix is already leaning on free speech protections, though, issuing a statement that they “intend to defend this matter vigorously and to stand by Richard Gadd’s right to tell his story.”
People have been making films and TV shows based on their own lives since the inception of cinema, but any time a project becomes a hit, there is always a chance someone will come out of the woodwork and sue, though usually for plagiarism (coincidentally, Fiona Harvey didn’t sue when Baby Reindeer was just a hit stage play). It will be interesting to see how the Baby Reindeer suit plays out, especially since the outcome will likely have bearing on how other artists adapt their own stories.
Attached - the cast of Baby Reindeer at a SAG-AFTRA Foundation conversation yesterday in New York.
Live long and gossip,
Sarah
