Does ‘Real life Martha’ have grounds to sue Netflix over Baby Reindeer?

Do you think Fiona Harvey has grounds for a successful defamation or privacy case against Richard Gadd and Netflix?

‍"Putting aside the question of whether or not Fiona Harvey would be successful in a defamation claim, which depends heavily on the facts and the evidence that may be adduced at trial, in order to bring a claim in the first place, one of the first things Harvey would need to be able to prove is that she is identifiable in the show. I understand that it didn’t take long for Harvey to be identified in forums online, which suggests that there are good arguments that the show included enough detail (or failed to include sufficient ambiguity) which allowed for the real-life Martha to be identified. Of course, Harvey has now confirmed her identity herself by going on Piers Morgan Uncensored, but no doubt she will argue that she felt compelled to do so given the amount of media interest that had been generated into her identity.

"Presuming that Harvey can get over the hurdle of proving identification, in order to bring a defamation claim, she will have to set out from the show the allegations which she says are defamatory (i.e. false and damaging) and how they have caused her serious harm.

"Harvey has alleged in the Piers Morgan interview that many of the assertions about her are untrue (including that she has been convicted of stalking and that she has been sent to prison). As the defendants in the action, the burden would fall upon Gadd/Netflix to prove that, in fact, the allegations are substantially true (which essentially means that they do not need to prove that every word is true, but that the essential substance of the statement is true). That would come down to a question of evidence and disclosure. I understand that Netflix has said that the emails depicted are the real emails received by Gadd, but that is disputed by Harvey, so disclosure and witness evidence is likely to be extremely revealing in this type of claim.

"On serious harm, Harvey has mentioned the threats and trolling that she has been subjected to. If she can point to this in evidence, it may be enough to get over the statutory requirement.

"So presuming she can demonstrate that she is identified in the show and if it is right that false allegations have been made against her, that may be enough for her to bring a defamation claim against Gadd/Netflix.

"Either way, it appears that the story is only just beginning. There is almost certainly more to come, and should it end in litigation, amongst many other things, it will be interesting to see the documents that come out as part of the disclosure process."

‍Could she argue jigsaw identification and do you think the producers took enough precautionary measures when creating the drama to ensure she would not be identified?‍

"As Harvey was not expressly named in the show, the general test is whether reasonable people would understand the words to refer to her. The intention of Gadd/Netflix in these circumstances is not relevant.

"Given how quickly individuals online were able to identify Harvey as the real Martha, there are good arguments for her to assert that she was identified in the show.

"Following the opening scene in the first episode, it is stated that 'this is a true story'. The question as to whether more ought to have been done depends on the facts, including whether the story is truly a factual depiction of what took place or whether some events/scenes were fictional. Whether Netflix could have been more careful to explain that the show is 'based on' a true story or that 'some events depicted are fictitious' in those circumstances again depends on what did (or did not) take place. Interestingly, it was announced in the King's Speech in November last year that Netflix would be regulated by Ofcom under a video-on-demand code in the new Media Bill. It will be interesting to see how that regulation impacts the production and broadcast of shows such as Baby Reindeer in future and, for example, whether streaming platforms will be required to implement enhanced protections for subjects and contributors to its content."

An extract of Jessica's comments was published in The Independent, 10 May 2024.