Of Rudolph… sort of… defamation and the Baby Reindeer saga 

Image of a sparkly reindeer against a black backdrop
Photo by Jack B on Unsplash

By Lana Hoffman, Arts Law volunteer 

The ongoing Baby Reindeer legal saga is a cautionary tale around filmmakers’ and media companies’ use of disclaimers and the need for extra precaution in fact-checking and clearances. The consequence of undercooking these processes is especially worrying for true crime content. The genre has ascended in pop culture through the viral effect of social media, with audiences eager to weigh in on extraordinary stories based on real world events. At the same time, social media, and the internet generally, has opened a door for audiences to take investigative deep dives into the details of stories purporting to have factual basis.  The proficiency of tracking-down and even ‘doxing’ real people increases the risk of harassment, reputational and emotional harm, and defamation. Baby Reindeer is an apt example of the need to mitigate these risks by taking steps to ensure the language of disclaimers are accurate and by taking necessary measures to conceal true identities.   

Baby Reindeer, created and starring Richard Gadd, is an autobiographical dramatisation of his experience being victimised by an alleged stalker under the pseudonym ‘Martha.’ Shortly following the series’ release and viral moment in April 2024, audiences were almost instantly able to locate Fiona Harvey as the real ‘Martha’ by referencing old tweets of hers to Gadd. In May, Harvey appeared on Piers Morgan Uncensored, identifying herself as the real Martha but denying the shows’ depiction of her committing crimes against Gadd.  

In June, Harvey filed a $170 million dollar lawsuit against Netflix in the United States (US), alleging defamation, intentional infliction of emotional distress, negligence, and violation of her right of publicity. The central arguments deployed against Netflix include that the media company failed to sufficiently investigate the accuracy of Gadd’s representation of facts, and that the show failed to sufficiently disguise her identity. In particular, the lawsuit disputes the representations of Harvey as a twice convicted stalker; that she violently attacked and sexually assaulted Gadd, and that the police had warned Gadd that she had stalked a policeman. Crucially, by using the disclaimer ‘this is a true story’ as opposed to ‘based on a true story,’ Harvey argued that the show led viewers to believe that these events were a true representation of fact.  

In July, Netflix filed a motion to dismiss the suit, arguing “Harvey concedes that her name does not appear in the Series, there are no characters named after real persons, and dramatic scenes and content were created to make the story emotionally compelling,” and “a “mere similarity” is “insufficient to establish a work of fiction is of and concerning a real person.” Gadd submitted a declaration affirming that the work was dramatic as opposed to documentarian and that the show was intended as an expression of the events and emotions as he subjectively experienced them.  

On 7 September, Judge Gary Klausner denied Netflix’s dismissal motion, allowing Harvey to proceed with the defamation claim (dismissing her claims of negligence and punitive damages). The Judge ruled that, even if the events of the show were “substantially true,” the disclaimer on the title card would lead a reasonable viewer to accept statements as fact. The Judge further reasoned that “while the Series uses some dramatic cinematic elements, these elements are not so absurd or surreal as to neutralize the audience’s expectations that they are watching a ‘true story.” Harvey’s attorney, Richard Roth, commented “the series is a wake-up call to the streaming services. If they are going to claim a story is ‘true,’ and not ‘based on’ or ‘inspired by’ truth, they had better be honest and transparent.”   

The trial in the US is now set for 2025.   

The Baby Reindeer saga raises an interesting question around the extent to which the law should curtail the freedom for artists to depict their “truth.”  However, it is difficult to fathom how the dramatic effect or integrity of a work would be compromised through the mere addition of a disclaimer, which in balance protects the rights and interests of depicted individuals.  

Australian law differs from that of the US. 

A few takeaways:   

  • Rigorous processes should be applied in clearance, source and fact-checking, to ensure that creative liberties do not overstep into overembellishing or fictionalising real events and people.   
  • Caution should be taken around rhetoric used to advertise, promote and label works.   
  • Characterisation of any form of fictional work as a ‘true story’ should be avoided by prefacing that it is ‘based on.’.   
  • Pseudonyms alone may be inadequate in protecting the identity of real people. Further steps may be required to avoid public identification, particularly given the speed with which information and misinformation travels and is found online.