Netflix loses first battle in $170 million Baby Reindeer defamation case

Netflix should not have claimed Baby Reindeer was “a true story” at the beginning of each episode because the actions portrayed by the character Martha were worse than those of the real-life woman whose actions inspired the show, a US judge has said.

In a massive blow to the streaming giant, US federal court judge Gary Klausner has ruled the defamation action brought by Scottish lawyer Fiona Harvey, the real-life inspiration for Martha, could proceed.

Fiona Harvey (left) and Jessica Gunning as Martha in the Netflix series Baby Reindeer.

Harvey is seeking $US170 million ($245 million) in damages against the streaming giant. Her claim states that since the release of the series – in which “Martha” harasses and sexually assaults “Donny” (the show’s creator and star, Richard Gadd) – she had been “inundated … with threatening and harassing messages” from viewers, and had suffered “severe emotional distress in the form of anxiety, nightmares, panic attacks, shame, depression, nervousness, stomach pains, loss of appetite, and fear. Specifically, a fear of going outside.”

Netflix had sought to have the claim struck out under anti-SLAPP (strategic lawsuits against public participation) laws, which are designed to prevent legal challenges that seek primarily to silence, intimidate or otherwise hamper free speech, particularly in reference to journalistic reporting.

However, Klausner ruled against that motion. The decision by Netflix to include an opening line claiming “this is a true story” invited the audience to believe that what happened in the series is what happened in real life.

“Martha and Plaintiff [Harvey] have specific similarities that few others could claim to share,” he wrote in his 18-page ruling, released last Friday, US time.

Emmy winners: Richard Gadd won outstanding lead actor, Jessica Gunning won outstanding supporting actress and Baby Reindeer won outstanding limited or anthology series last month.Credit: Mark Von Holden/Invision/AP

“Specifically, Martha and Plaintiff are both Scottish lawyers living in London, 20 years older than Donny/Gadd, accused of stalking a lawyer in a newspaper article, who communicated with Donny/Gadd on social media.

“While there may be numerous Scottish lawyers living in London of the same approximate age as Plaintiff, it is very likely that only Plaintiff has been accused of stalking a lawyer in a newspaper article while also communicating with Gadd on social media.”

The distinction between “true story” and “based on a true story” is pivotal in this case.

Baby Reindeer – which recently won six Emmy awards – recounts Gadd’s experience of being sexually assaulted by a male television producer he met while performing a one-man stand-up comedy show at the Edinburgh Fringe, and of later being harassed and stalked by Martha, played in the show by English actor Jessica Gunning.

The series includes the claim that Martha was twice convicted of stalking, and served five years in prison for sexual assault. Harvey has consistently maintained she has never been convicted of any crime.

Klausner noted that in presenting his stage show, Gadd had used the disclaimer “based on a true story”. The judge also referenced a recent article in which it was alleged that Gadd had tried to argue against the “true story” line favoured by the streamer.

Gadd’s disclaimer, the judge noted, “put defendants [Netflix] on notice that certain details were likely false”.

The streamer using the “true story” line “suggests a reckless disregard of whether statements in the series were false, and thus, actual malice”.

Klausner ruled Harvey has a “probability of prevailing” in her allegations of defamation, and that portions of her claim can proceed.

However, he ruled against her on several other points, including her claim for punitive damages. He also raised the possibility that Harvey could qualify as a public figure, which would make her claim of defamation more difficult to establish.

If that does indeed prove to be a hurdle, there will be some irony in the fact. Though the judge cited her standing unsuccessfully for public office and newspaper reports of charges of stalking that were twice brought against her, it is her decision to out herself, in particular with a long interview with broadcaster Piers Morgan, that has done most to establish her as a figure of notoriety.

Gadd is not a party to the legal proceedings.

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