A judge in the United States has ruled that Fiona Harvey, the woman accused of stalking Baby Reindeer creator Richard Gadd, can continue her defamation claim against Netflix.

Baby Reindeer portrays the experiences of Richard Gadd, its creator and star, as his character Donny is stalked by a woman called Martha. Despite changing the names of the individuals portrayed, a California court found the series to be “heavily based on reality”. Like Harvey, the character of Martha is a lawyer from Scotland living in London, 20 years older than Gadd, who has previously been accused of stalking a lawyer in a newspaper article. The character also has an “accent, manner of speaking, and cadence… indistinguishable” to Harvey.

Within the story, Martha frequently posts on Donny’s social media pages. The content of one post, shown in the series, was in fact identical to a message posted by Harvey to Gadd in 2014. As we discussed in an earlier article, viewers discovered Harvey to be the real Martha within days of the show’s release via the process of jigsaw identification.

The fact that Harvey confirmed the suspicions around her identity on Facebook, and later took part in an interview with Piers Morgan, did not convince the court that her claim should be dismissed.

Whilst Harvey’s purported real-life actions were considered “reprehensible” by the court, district judge Gary Klausner ruled that the events shown in Baby Reindeer were “of a worse degree”, depicting Martha as a convicted criminal who had spent 5 years in prison for stalking, who sexually assaulted Gadd in an alley, violently assaulted him, and stalked Gadd by waiting outside his home for “every day for up to 16 hours a day”. None of these events depicted were in fact true.

Netflix sought to strike out Harvey’s claim, under anti-SLAPP laws, which allow a defendant to file a special motion to strike a complaint that is brought primarily to chill the valid exercise of free speech and petition. The court rejected this. The judge stated that “there is a major difference between stalking and being convicted of stalking in a court of law…there are major differences between inappropriate touching and sexual assault, as well as between shoving and gouging another’s eyes”.

A significant point the court took into account was the fact that each episode of the series opens with the sentence “this is a true story” being shown on-screen.  By contrast, Gadd’s theatre play, on which the series was based, claimed only to be “based on a true story”. The judge expressed concerns about the addition of this on-screen text and the fact that this would be likely to lead viewers to conclude that everything depicted was accurate, when this was not the case.

The court therefore denied the defendant’s motion to dismiss the defamation claim, stating that Harvey’s claim “has a probability of prevailing on the merits”.

Defamation

Although Harvey is pursuing her claim in California, this case continues to highlight some of the general legal risks around dramatisations of stories based on true events. In this jurisdiction, whether a depiction of a real person is defamatory or not would turn on factors such as whether they are identifiable, whether the events depicted are accurate, or whether viewers would understand that some aspects have been fictionalised for the purpose of the show. Use of taglines such as “based on a true story” can make viewers aware that the events depicted are not factual and help mitigate the risk of a defamation claim being brought.