Does the ‘real Martha’ have a case against Netflix?

“Baby Reindeer,” the Netflix series that has taken the world by storm since its release last month, opens boldly with the claim that “This is a true story.” (Unlike another Netflix series, “Inventing Anna,” which begins with the title card: “This entire story is completely true. Except for all the parts that are completely fictional.”)

“Baby Reindeer” is a brutal account of former comedian Richard Gadd’s life in his 20s as he tried to conquer the world of entertainment. In addition, he is sexually abused by a high-ranking figure in the comedy world and harassed by a stalker he met while working in a pub. The woman claiming to be the real stalker, Fiona Harvey, has now said she plans to take legal action against Gadd and possibly Netflix, although no claims have been filed yet.

Gadd wrote and starred in the series, which is produced by Clerkenwell Films, in which he plays a fictionalized version of himself named Donny Dunn.

Gadd has also said that he fictionalized his stalker, named Martha in the series Variety last month: “I mean, there are certain protections, you can’t just copy someone else’s life and name and put it on television.” The show portrays Martha, played by Jessica Gunning, as a plus-size brunette with a Scottish accent and a legal background.

After she starts sending him thousands of emails – some of which appear verbatim in the show – Donny realizes that she has previously been accused of stalking by a woman in Scotland. As the stalking intensifies, Martha is also shown sexually abusing Donny, physically assaulting his girlfriend and even harassing his parents before ultimately pleading guilty to harassment in a criminal court.

Within days of the show hitting the streaming platform, internet sleuths quickly discovered a real woman named Fiona Harvey, who appeared to be a carbon copy of Martha: a Scottish, plus-size brunette with a legal background who had exchanged a number of business tweets with Gadd during the time period the show takes place and, it seemed, was once accused of stalking a woman in Scotland some fifteen years earlier.

Last week, after fervent online speculation, Harvey appeared on Piers Morgan’s YouTube show, where she denied stalking Gadd after meeting him in a London pub (although she admitted to sending him emails) and told Morgan that she plans to take legal action against the writer and possibly Netflix. So far, court records show that Harvey has not filed any claims in London’s High Court, but British barrister Chris Daw KC told Variety he is “building a team of lawyers to take on Fiona’s case and review all possible claims against Richard Gadd, Clerkenwell Films and Netflix.”

“It will take some time to gather all the evidence and prepare a legal claim, but that process is ongoing,” added Daw, who is not yet officially representing Harvey in a legal capacity. “We are actively considering defamation, image rights and any other potential claims arising from the use of Fiona’s image in ‘Baby Reindeer.’” (Netflix declined to comment; representatives for Gadd and Clerkenwell Films did not respond).

Britain is known to be more favorable to libel claimants than the US, where the First Amendment protects a wide range of offensive and offensive speech. In Britain – where much of the law is being legislated in the clashes between royals and tabloids – plaintiffs can pursue invasion of privacy claims or other remedies in addition to defamation.

Now that a legal battle is apparently on the horizon, Variety spoke to two British lawyers to find out what claims Harvey might try to make against the show’s creators – and how likely she is to succeed.

How strong would a case of libel or defamation be?

Callum Galbraith, head of media conflict at Hamlins, said Variety that if he had a client in Harvey’s position, “one would immediately consider whether a possible defamation action could be brought on the basis that the allegations are untrue and defamatory to the extent that they damage her reputation in the eyes of the attack the police.” what other people would think.”

But truth is a defense, so if the producers could prove that the disputed allegations are substantively accurate, they would prevail. However, Harvey has claimed that there are major discrepancies between the show and reality.

In the show, Martha is arrested and sentenced to nine months in prison for stalking Gadd’s character. In real life, Harvey has said that she was not convicted or sent to prison. The Scottish Daily Record reported that she had been issued a “First Instance Harasment Warning” by the Met Police.

Another discrepancy concerns the number of messages sent by the Martha character. On the show, she sends 40,000 emails and voicemails. In real life, Harvey admitted to sending Gadd “a few” emails – but no more than ten.

In his interview with VarietyGadd said the show was “emotionally 100% true” but admitted that “you can’t do the exact truth, for both legal and artistic reasons.”

If the case actually goes to trial, it will be up to a judge to assess the disputed facts and determine whether any fictionalization has damaged Harvey’s reputation.

“What is depicted in the material should degrade the person’s reputation,” says John Linneker, an intellectual property partner at FieldFisher. “And if you have a lot of things that are true – 90% are true and 10% are not – is that defamatory? Because that extra 10% probably won’t make much difference to your reputation.”

Linneker said that even if Gadd could prove she stalked him, portraying her as convicted “takes it to another level” if it isn’t true. “That is defamatory, despite the 40,000 emails,” said Linneker. The same goes for Martha’s attacks on both Gadd and his girlfriend Teri.

What about invasion of privacy or misuse of private information??

Harvey also has a potential claim for invasion of privacy under the Human Rights Act and the Data Protection Act. To win, Harvey would have to show that her “reasonable expectation of privacy” was violated, and that her right to privacy outweighed Netflix’s interests in telling Gadd’s story.

One of the key issues will be whether Gadd changed identifying information about “Martha” enough to prevent her from being identified. “There is probably no hard and fast rule about what is expected in these types of scenarios,” said Galbraith, who is currently representing Prince Harry and Sadie Frost in their unlawful information gathering claims against the Daily Mail.

“Often changing someone’s name is enough,” Galbraith said, although he pointed out that the many similarities between Martha and Harvey amount to “puzzle identification,” allowing people to figure out the connection. (Harvey, in addition to being Scottish, with a legal background and a known stalker, once tweeted at Gadd in 2014: “My curtains must be hanging badly,” an unusual expression used by Donny and Martha on the show.)

Linneker said a scene in which Gadd discovers that newspaper reports of Martha stalking the wife of a lawyer in Scotland could also be damaging: Harvey was reportedly the subject of newspaper reports in the 2000s in which she was accused of stalking the wife of a Scottish to stalk a politician.

“I think it’s probably also significant that even though they’ve changed the name, it appears that the [physical] The resemblance of the person in the Netflix show and the person in the Piers Morgan show is uncanny,” Galbraith said. “So that’s probably not very helpful from Netflix’s or Gadd’s perspective.”

Is there a possibility of a copyright claim?

Because the real Martha’s real emails were shown several times during the show — her hastily written signature “Sent from my iphoen” has since gone viral — Linneker and Galbraith said Harvey could also have a copyright claim.

“One of the questions would be, ‘Is it sufficiently original to attract copyright?’” Galbraith said. “Because some of the messages are relatively short, I think the court will probably conclude that this is so. And it’s not clear what defenses there would be, because it appears many of those posts were published in their entirety. So they couldn’t claim, ‘We didn’t publish a substantial portion of those messages or those emails,’ because they show them on the screen.”

In 2022, Meghan Markle sued the Mail on Sunday for copyright infringement after it reproduced parts of a letter she wrote to her father that he shared with the newspaper. The court ruled in her favor. Such a claim would likely fail in the United States, where the concept of “fair use” of copyrighted material is much broader.

Can the case actually go to trial?

Neither Linneker nor Galbraith expect the case to go to trial, as this would likely not be in the best interest of either party.

Linneker suggested because of the costs – and the fact that lawsuits carry a high risk – that Netflix would likely want to settle, citing Prince Harry as an example. Earlier this year, the prince dropped his defamation claim against the Mail on Sunday despite winning the first phase of it, reportedly leaving him with £750,000 in legal bills, a third of which were the Mail’s costs.

There is also the Streisand effect of defamation lawsuits. “We advise a lot of people who think they’ve been defamed to keep completely quiet unless it’s something they’re really, really upset about,” Linneker said, explaining that a lawsuit usually gives more oxygen to someone’s claim. say. not true.

Then there’s the mental toll a lawsuit can take. “Like [Harvey] charged and it ended up in court, she was going to have a pretty tough time,” Linneker said, noting the often difficult process of cross-examination.

What could be the damage?

It’s difficult to calculate how much Harvey could win if she were to go to trial, but if she had effectively targeted Piers Morgan, it could have affected the final amount. “I don’t think she can sue for damages once she’s responsible for making sure people know it’s her,” Galbraith said.

Linneker, who said he was “completely fascinated” by “Baby Reindeer”, assumed while watching that the real Martha would have been offered around £20,000 to waive any claims in a pre-broadcast settlement. “Because it is quite a tough piece of material to stick your neck out with,” says Linneker. “It would have been an obvious thing for Netflix to do.”

It would also likely have avoided a lengthy legal battle that now looms.

Gene Maddaus contributed to this story.