The real Martha

The Netflix hit show ‘Baby Reindeer’ represents a true cultural moment of 2024. It is fast becoming one of Netflix’s most watched and talked about shows ever. It tells the story of an aspiring comedian played by Richard Gadd, as himself (he also wrote the show), and claims to follow his real-life experiences of being stalked by a character known as Martha.

Following the show’s release, frenzied speculation ensued as to the identity of the ‘real-life Martha’. Internet sleuths eventually revealed her identity as Fiona Harvey. .

CALIFORNIAN v ENGLISH COURTS

Baby Reindeer is set in Edinburgh and London. It features British actors and it was produced by a British production company. However, despite the show’s British origins, California (where Netflix is headquartered) is the obvious first choice jurisdiction for any lawsuit brought by Ms. Harvey.

In addition to defamation laws protecting a claimant’s right to reputation, Californian law offers robust protection of the ‘right of publicity’ i.e. the right to control commercial use of an individual’s name, image & likeness. English courts offer no directly equivalent protection. Californian courts may also award vast damages to successful libel claimants including the award of punitive damages; and the law firm acting for Ms. Harvey is certainly seeking American style damages demanding $170,000,000 from Netflix for ‘destroying’ its client’s reputation with ‘brutal lies’ (Netflix intends to ‘defend this matter vigorously’). Damages on this scale would not be recoverable in an action for defamation in the English courts. It remains to be seen whether or not proceedings in the High Court follow.

PROSPECTS OF SUCCESS

US defamation claims are regarded as harder to win than equivalent claims under English law. Under Californian law (but not under English law) a claimant must show that the defendant knew that the statement complained of was untrue, or that they were reckless as to its veracity. The continued right of a claimant to demand trial by jury in defamation claims in California (as Ms. Harvey has done) retains an additional element of ‘litigation risk’ in the Californian courts. However, the US litigation relies on a wider range of causes of action than would be available to Ms. Harvey under English law. She alleges that the streaming giant has committed acts of defamation, intentional infliction of emotional distress, negligence, gross negligence and violations of her right of publicity.

In defamation proceedings in the High Court, Ms. Harvey would need to prove that the statement complained of referred to her, that the statement was defamatory of her (i.e. it will tend to lower [the claimant] in the estimation of right-thinking members of society generally) and that the statement was published by the defendant (or it was responsible for its publication). Publication of the statement complained of would also need to meet the ‘serious harm’ test under section 1(1) of the Defamation Act 2013, i.e. that the statements has caused, or is likely to cause, ‘serious harm’ to her reputation. Focus would inevitably fall on the issues of identification and defamatory meaning.