‘Baby Reindeer’: Dasher, Dancer, Defamation.

Spoiler Alert: This commentary will contain spoilers if you have not seen the Netflix series. 

Netflix’s recent hit series Baby Reindeer quickly became one of its most watched shows in the UK due to its compelling and intriguing story. The series deftly handles topics such as abuse, trauma, homophobia, and a complicated relationship between Richard Gadd – the writer and creator of the show – and his “stalker” Martha.

However, since airing, the real-life inspiration behind Martha, Fiona Harvey, has threatened to sue Gadd and Netflix for their portrayal of her in the series. Harvey claims that she never sent the volume of emails suggested in the show, that she’s has not been convicted of stalking, and that she has never gone to prison. 

If Harvey will be successful depends heavily on the facts and the evidence that may be adduced at trial. In this post I will be considering if Harvey has a case, and what she needs to do in order to prove it.  

Step 1 – Identifiability

To bring a claim the first thing Harvey must do is to prove that she is identifiable in the show. It did not take long for people online to identify Harvey as the basis of Martha’s character. This in itself indicates that Netflix and Gadd either provided too much detail to allow her to be identifiable, or the series lacked enough ambiguity to protect her identity.

Harvey has, of course, since featured on Piers Morgan Uncensored confirming her identity, though she was identified before. Harvey is likely to argue that she was forced into revealing herself due to the intense public and media interest in the series and who Martha really was. 

Despite not being named in the show, Harvey can still claim she was recognisable if reasonable people would understand the defamatory statements (e.g., that she was convicted of stalking) to refer to her. Given the speed with which the public was able the identify Harvey, it is likely there are strong arguments that she was identifiable in the series.

Step 2 – Defamatory Allegations 

Harvey will need to show that, as well as being identifiable, the series made false and damaging allegations about her.

Harvey has alleged that many of the central parts of the character of Martha were false, such as her being a convicted stalker and that she went to prison. Netflix themselves have since stated that the emails depicted and quoted in the series are real emails received by Gadd from Harvey. Harvey has disputed this claim too. 

Gadd and Netflix will have to prove that these allegations were substantially true, i.e. that the essential substance of the statements were true, not necessarily that every word in the series was true and accurate. 

Interestingly, the series itself started with the statement that ‘this is a true story’. Whether Netflix should have taken more steps to make clear that the series was ‘based on’ a true story, or that some of the events it depicted were in fact fictitious, depends on the facts. For instance, if Harvey has in fact been convicted or been to prison.  

The shows does contain a post-credit disclaimer that aspects of the show have been fictionalised for dramatic purposes. It is unlikely anyone watching the series saw this, however, due to the streaming services’ auto-play feature. Placing this disclaimer at the beginning of every episode instead of leaving it to go unseen at the end would have helped Netflix/Gadd defend any claim.  

It has since come to light that Harvey may have also stalked other people, including Labour leader Kier Starker. These other allegations may undermine Harvey’s credibility that her interactions with Gadd were not as depicted in the show. 

Step 3 – Serious Harm

Untrue statements are not enough by themselves, nonetheless, so Harvey must show that Baby Reindeer’s defamatory allegations have caused her serious harm. 

Whether a publication is “damaging” is tested by if it would cause a third party to think less of you as a results of what has been published.

Harvey has stated that since the series aired she has received threats (including death threats), abuse, and been the subject of numerous internet trolls. This may be enough to show the required statutory level of harm. 

If Netflix/Gadd can show that they accurately portrayed the volume of emails Gadd received, that Harvey had been convicted of stalking, and that she had been to prison, they might be able to successfully defend the claim.

The New Media Bill

Last year, during the King’s November Speech, it was announced that Netflix would be regulated by Ofcom under the video-on-demand code in the new Media Bill. 

The purpose of the Bill is to revise the current legislative framework governing broadcasting following the UK’s departure from the EU, as well as addressing technological advancements in Media, such as the increase in on-demand services like Netflix.

This added government regulation of the service might impact the production and broadcast of shows similar to Baby Reindeer, and whether platforms will have to do more to protect the identities of their subjects. 

Series like Baby Reindeer are generally reviewed by a legal team before broadcast for exactly this reason – to check that they are not open to a defamation claim or breach of duty of care. It is likely that Netflix will be reviewing its internal processes to prevent a repeat of this saga. 

Still, the streaming giant’s confidence in broadcasting the show, and the subsequent revelations about Harvey’s potential other interactions with Starmer etc, may prove that Baby Reindeer is, in fact, too bizarre to be fiction.