If you haven’t seen the most watched Netflix series, well, where have you been?
In the hit series, Richard Gadd plays himself and recounts his alleged story of being harassed by a woman under the alias, Martha. The show depicts Martha harassing Mr Gadd and his partner physically as well as via email, Facebook and voicemails. It is alleged that Martha sent Mr Gadd 41,000 emails. Netflix confirms that the show is a “true story”.
The legal issues began when the public, completely obsessed with the show, started to search for the “real” Martha, now thought to be an individual by the name of Fiona Harvey, online.
Although the “real” Martha wasn’t specifically identified within Baby Reindeer, there are a number of features in the show which assisted various industrious members of the public in ’identifying’ Ms Harvey. By way of example, Martha was depicted as a Scottish lawyer. However, the silver bullet for super-fans was the discovery of a tweet sent by Fiona Harvey to Richard Gadd which was specifically mentioned in the show.
Fiona Harvey has come forward, recently speaking out in an interview with Piers Morgan, confirming that she believes she is the person that the character “Martha” is based on. She denies the majority of Richard Gadd’s story. In that interview, she also alludes to suing both Netflix and Richard Gadd in defamation.
A point of dispute between Fiona Harvey and Netflix is likely to be whether Netflix identified Fiona Harvey sufficiently to enable viewers to know that the statements within Baby Reindeer were made were about her. Although Netflix and indeed Richard Gadd took steps to protect Fiona Harvey’s identity, she will have strong arguments that those steps were not sufficient due to the fact that the public were able to identify her quickly. If they are required to defend a claim, Netflix and Mr Gadd may well seek to rely on Ms Harvey’s high-profile self-identification while she will no doubt say that she was required to take that step to protect her reputation.
If she is to bring a claim in defamation, Ms Harvey will then need to prove that the allegations that Martha was a stalker, committed physical and other assaults and harassment and that she has a criminal record are defamatory at common law. These are serious allegations and it seems likely that she would successfully establish that they are indeed defamatory. She will then need to prove she has suffered serious harm pursuant to s.1 of the Defamation Act 2013. In this regard she will no doubt point to the fact that she has apparently been subjected to substantial online abuse which included death threats.
Any Defendant to a defamation claim will have a complete defence to the claim if they can prove the statements were substantially true; a defence Netflix is likely to raise in the circumstances (quite possibly among others including the defences of fair comment and public interest). The disclosure process will be an important part in establishing the truth defence. Fiona Harvey and Mr Gadd will likely be required to search for example all of their electronic devices and provide copies of any relevant material to all other parties to any claim. Should the 41,000 emails be discovered (amongst any other of the alleged material), Netflix and Mr Gadd will be in a strong position.
Whether or not Fiona Harvey brings a claim against Netflix in defamation and whether she will be successful is still up in the air, but we do know that if she does, it is bound to be a historic case. Perhaps there may an unexpected sequel to this series after all. Netflix, over to you.
Sent from my iPhone…..