Lost King – the risk of defamation claims over films based on true events

Background

The case concerns the feature film The Lost King, released in 2022, about the sensational discovery of the remains of King Richard III under a car park in Leicester, some 500 years after his death. The story is told from the perspective of Philippa Langley, and opens by saying that it is “based on a true story, her story". Ms Langley was shown in the film as the driving force behind the search that led to the discovery of the remains.

The claimant is Richard Taylor, the former Director of Corporate Affairs and Planning and former Deputy Registrar at the University of Leicester. The film does not portray Mr Taylor in a positive light, and he brought a defamation claim over his depiction in the film. The judgment follows a preliminary hearing to determine the natural and ordinary meaning of the film in relation to Mr Taylor.

Claim

Mr Taylor claimed that the film meant that:

• He dishonestly misrepresented the facts concerning the search for, and discovery of, Richard III’s remains to the media and the public, to conceal Ms Langley’s role, and to take credit that was rightfully hers, for himself and the University of Leicester.
• He consistently behaved in a dismissive, patronising and misogynistic way towards Ms Langley.
• He wrongly set out to frustrate a condition set by Ms Langley for Richard III’s reburial, i.e. that the tomb show a royal coat of arms. He acted in a devious and manipulative way to frustrate Ms Langley, to control the reburial and to prevent the placing of a royal coat of arms on the King’s tomb. In explaining why this decision had been reached to Ms Langley, the claimant behaved in a deeply unpleasant and disablist manner by publicly mimicking Richard III’s purported “hunchback” and equating his physical deformity with his wickedness/moral failings.

The defendants denied that the film conveyed the more serious defamatory meanings relating to dishonest, devious, manipulative, misogynistic and disablist behaviour. They suggested that viewers of the film would take it to mean that Mr Taylor, acting on behalf of the University, publicly exaggerated the University’s role in the search and discovery, marginalised Ms Langley’s role despite her major contribution, and that the conduct shown by Mr Taylor towards Ms Langley in the film was, at times, unduly dismissive and patronising.

Approach taken by the judge

His Honour Judge Lewis, sitting as a judge of the High Court, followed the well-established principles to determining meaning laid down in Koutsogiannis v Random House² and, given that the context was a feature film, adopted the following approach (applying principles from Corbyn v Millet,³ which concerned a television programme):

“Whilst I have been provided with a transcript of the film, both parties acknowledge that I must base my decision on my impression of the film itself. The transcript does not convey the visual images and sounds used in the film, including the way in which scenes have been edited, the presentation of a character’s general demeanour and the tone of voice, intonation, emphasis and expression used by the actors.”

The claimant argued that, as the film depicts real events, the viewer would expect the individuals to be carefully portrayed. Yet the judge ruled that:

“The hypothetical reasonable viewer would have appreciated that the film was neither a documentary, nor a work of fiction. It was a dramatisation of events, and the viewer would appreciate that this means that the dialogue in the film was not a verbatim record of what occurred. The hypothetical reasonable viewer would have watched it in one go, for entertainment. They would not take notes, nor rewind or seek to cross-check what has been said.”

Analysis of meaning

Several scenes were of particular importance to the arguments:

• At a local council meeting, Mr Taylor is shown being sceptical about Ms Langley. After she leaves the room, he says: “Now I’m sure this woman means well, but I think it’s important to acknowledge that she’s an amateur, and she has an emotional dynamic which I don’t think is helpful … My concern is for the reputation of the University should the whole thing become a fiasco. Huh! I mean Richard III under a car park.”
• After Ms Langley raises money herself to fund the search project, Mr Taylor is shown turning up at the dig with a film crew proclaiming that the University was “leading” the search for Richard III. Ms Langley challenges this and, as she walks off (wearing distinctive boots), Mr Taylor is shown commenting to his assistant, “someone is getting a little too big for their fancy boots”.
• After the remains are discovered, Mr Taylor turns up on the site with a film crew and then arranges a major press conference proclaiming that the University found Richard III. Ms Langley is not invited to be on the podium, and Mr Taylor is shown dismissing another character’s suggestion that she should have been invited.
• After the press conference, Ms Langley approaches Mr Taylor. He is shown trying to avoid her. He apologises for the seating plan. Ms Langley then challenges him on plans for the burial, making clear that the tomb should have the royal coat of arms. They discuss the physical evidence suggesting that Richard III’s remains had a curvature of the spine, in which Mr Taylor pulls a hunchback gesture and suggests this finding lends credence to the historical view that Richard III was a usurper.
• In scenes depicting the reinternment and subsequent celebratory banquet, Mr Taylor is shown to play a prominent role, marching in the procession and accepting a standing ovation at the banquet. This is shown in contrast to Ms Langley, who is not given the credit.

Regarding dishonesty, the judge felt that the hypothetical reasonable viewer would have understood that the claimant knowingly advanced a false narrative about the University’s involvement and took credit where it was not due, but that he was promoting the University rather acting for his own personal benefit.  

While the judge acknowledged some viewers might have considered the film to be making a wider comment about the claimant, and indeed some viewers would have thought it was saying that the claimant was a misogynist or a sexist, the hypothetical reasonable viewer would not have stopped to think through whether the film was making a wider comment, or just showing how he reacted to certain situations, and would have felt in context that he was smug, condescending and dismissive, but that his issues with Ms Langley were that she was an amateur, presenting a bizarre and fanciful plan, and that she was stubborn, difficult to get on with, and obsessed with promoting a view of history that was at odds with conventional thinking.  

Similarly, as to the mimicking of the hunchback, some viewers might have thought that the claimant was acting in a disablist manner, but the judge considered that the hypothetical reasonable viewer would, taking things in context, have seen this as further evidence that the claimant was being dismissive and patronising about Ms Langley’s views about Richard III.

Decision

HHJ Lewis found that the natural and ordinary meaning of the film in relation to Mr Taylor is that:

• Mr Taylor knowingly misrepresented facts to the media and the public concerning the search for, and discovery of, Richard III’s remains. He did so by presenting a false account of the University’s role in the project, and marginalising the role of Ms Langley (the true driving force behind the remains being found), despite her major contribution to the find. This was held to be a statement of fact.
• Mr Taylor’s conduct towards Ms Langley during the project was smug, unduly dismissive and patronising. This was held to be a statement of opinion, as the film expresses that view from Ms Langley’s perspective.

The defendants queried whether the second meaning was even capable of being an actionable defamation at common law. The court ruled that it did, as it met the two requirements summarised in Corbyn v Millet:

• Consensus requirement – The statement must tend to lower the claimant in the estimation of right-thinking people generally. The judge must determine whether the behaviour or views that the offending statement attributes to a claimant are contrary to common, shared values of our society.
• Threshold of seriousness – The imputation must be one that would tend to have a substantially adverse effect on the way that people would treat the claimant.

Applying those requirements to this case, HHJ Lewis found that, while an individual scene may not in itself cross the threshold of seriousness, taken together the film makes a powerful comment about the claimant and the way that he conducted himself when undertaking a senior professional role for a university. The poor way in which he was depicted as behaving towards Ms Langley was contrary to common shared values of our society and would have been recognised as such by the hypothetical reasonable viewer.

Accordingly, both of the meanings were held to be defamatory at common law.

Comment

This case is an interesting example of how the English courts approach dramas based on real events. Although it is still somewhat rare to see defamation claims over film or TV dramas in the UK, they are becoming more common, especially in jurisdictions like US states (such as the lawsuit that has been brought by Fiona Harvey against Netflix in California concerning its hit series Baby Reindeer).

If an individual believes that they have been defamed by an audiovisual production, then a lawsuit might seem an attractive means of seeking vindication, as the success of the film or programme may help their claim to attract additional publicity and attention. Yet the case illustrates that, while some viewers might take a production to be saying something more serious about a claimant, the court will not always agree, and will look at the case through the eyes of a reasonable viewer, watching it once, and not being avid for scandal.

The ruling also reminds us that, even if a producer has carried out thorough libel clearances on a potential script before production, they should repeat that process with the finished film or programme before it is released. Whether a depiction of a real person in a production is defamatory may hinge on elements such as the visual images and sounds used, the way in which scenes have been edited, the presentation of a character’s general demeanour and the tone of voice, intonation, emphasis and expression used by the actors.

Article written for Entertainment Law Review.