‘Baby Reindeer’ fiasco reaches the courts – Our Senior Partner Clive Coleman interviewed on BBC World Service

Our Senior Partner Clive Coleman was interviewed on BBC World Service about the news that Baby Reindeer’s “Real-life Martha”, Fiona Harvey, has filed a $170m defamation lawsuit against the streaming giant. He explored how likely she might be to succeed in her suit, and the different approaches in English and American defamation law.

In the first episode of the programme, Baby Reindeer claims to be a “true story”, rather than one based on true events – this, in Clive’s view, ought to give Netflix cause for concern. He referred to the news that Netflix executive Benjamin King has been asked to clarify evidence he gave to parliament’s Culture Media and Sport Committee, that Baby Reindeer was “obviously a true story of the horrific abuse that the writer and protagonist Richard Gadd suffered at the hands of a convicted stalker”, since online sleuths and journalists have been unable to find any evidence of a conviction.

It took no time at all for Fiona Harvey to be identified online as the character upon which Martha was based. She maintains that this has placed her in real danger and that she has suffered as a result of this identification, even receiving death threats. Clive stressed that Netflix should be concerned about why this was possible, and crucially, whether they took sufficient precautions to ensure that her identity was protected.

Clive was asked whether news of Netflix’s potential irresponsibility came as a surprise to him. Referring to his experience as an award-winning writer for theatre, TV and film, Clive highlighted the warranties that writers are required to give that nothing in their work is defamatory. He explained just how seriously writers take these warranties and the due diligence they undertake as a result. Clive went on to note that, once a writer has provided a warranty to a production company and streamer, a whole range of compliance should then kick in to ensure that the story reflects the truth and doesn’t put any of the characters in real life danger.

Questioned about the difference between English and American defamation law, Clive suggested that it may be harder for Fiona Harvey to win a defamation suit in the US than if she were to have brought her case in England and Wales. He highlighted that it is much tougher to prove defamation in the US, as claimants must prove malice – in other words, claimants must prove that statements were known to be untrue, or that the person making the statements was acting recklessly in terms of their veracity. That said, Clive then suggested why Fiona Harvey might have brought her case in the US: Netflix is of course headquartered there, but also, defamation suits can result in enormous payouts for claimants, far exceeding the figures seen in English courts.

Clive stressed that many of the facts surrounding the case are not yet clear. It remains to be seen what might be revealed later down the line.

Click here to listen to Clive’s appearance in full.