Is Netflix open to a defamation claim over Baby Reindeer?

Jessica began by outlining how a defamation claim can be brought in the UK. She highlighted that you need to "prove that you are identifiable from the publication you're complaining about." Jessica continued that "presuming [Ms Harvey, the alleged real Martha] can get over that hurdle, she then has to identify the allegations, or the part of the story that is defamatory of her."

Fiona Harvey has claimed in media interviews that she never sent the volume of emails suggested in the show, that she has not been convicted of stalking and that she has never gone to prison. "If all of that is false and damaging," Jessica commented, "then she can say that those are defamatory allegations."

Jessica explained the test for assessing if a publication is damaging: "whether it causes a third party to think less of you as a result of what has been published."

"[Ms Harvey] referred to online trolls and death threats, and abuse that she has suffered as a result of what has been broadcast in the programme. If she can piece all of that together, then she may well have grounds to bring a defamation case. That is not to say that she would be successful, but she can at least bring one against [Richard] Gadd or Netflix."

Against this, Jessica continued, Gadd and Netflix would "only have to prove the substantial truth of what [they] are saying." If they can prove that they accurately portrayed the volume of emails Harvey sent, that she had been convicted of stalking and that she had indeed been to prison, then "they might be able to mount a sufficient defence to her claim."

Another complicating factor is that the show states at the beginning of each episode that this is a true story. While there is a post-credit disclaimer that aspects of the show have been fictionalised for dramatic purposes, Netflix's auto-play feature means that this may not be seen by many viewers. If Netflix had placed this disclaimer at the start of each episode it still "wouldn't be a 'Get Out of Jail Free Card', but it may have made it easier for them," Jessica highlighted.

When asked about whether Netflix would have performed adequate due diligence ahead of publication, Jessica commented that "programmes like this are generally 'legalled' before they are broadcast for exactly this reason - to ensure that they stay on the right side of the line from a defamation and privacy perspective, but also from a duty of care." However, Jessica anticipated that Netflix "will be looking at their own internal processes anyway to ensure that what was supposed to have taken place did," and that the fallout from the programme may "shake the industry to a degree."

Jessica was interviewed on ABC Radio's flagship weekend current affairs programme, Saturday Extra, 17 May 2024.