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Does 'Real Martha' have a case against Netflix?

Does 'Real Martha' have a case against Netflix?

“Baby Reindeer,” the Netflix series that has been making waves around the world since its debut last month, boldly begins 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 all parts are entirely made up.”)

“Baby Reindeer” is a brutal chronicle of former comedian Richard Gadd's life in his 20s as he tried to conquer the world of entertainment. In the process, he is sexually assaulted by a prominent figure in the comedy world and harassed by a stalker he met while working at a bar. The woman claiming to be the real stalker, Fiona Harvey, said she intends to take legal action against Gad and possibly Netflix, although no claims have been made yet.

Gad wrote and starred in the series produced by Clerkenwell Films, in which he played a fictionalized version of himself called Donnie Dunn.

Gad also said that he imagined his stalker named Martha in the series telling diverse Last month: “I mean there's some protection, you can't just copy someone else's life and name and put it on TV.” In the show, Martha, played by Jessica Gunning, is portrayed as a busty brunette with a Scottish accent and a legal background.

After she began sending him thousands of emails – some of which appeared verbatim on the show – Donnie realized she had previously been accused of stalking by a woman in Scotland. As the stalking intensifies, Martha is also shown sexually abusing Donnie, physically assaulting his girlfriend and even harassing his parents before eventually pleading guilty to harassment in criminal court.

Within days of the show appearing on the streaming platform, internet sleuths quickly found a real woman, Fiona Harvey, who appeared to be a carbon copy of Martha: a plus-sized Scottish brunette with a legal background who exchanged a number of pieces of information. He tweeted with Gadd around the time of the show, and it appears he was once accused of stalking a woman in Scotland about 15 years ago.

Last week, after intense online speculation, Harvey appeared on Piers Morgan's YouTube show, where she denied stalking Gad after meeting him in a London pub (although she admitted sending him emails) and told Morgan she planned to take legal action against the writer. And maybe Netflix. So far, court filings indicate that Harvey has not brought any claims to the High Court in London, but British lawyer Chris Dow KC said diverse He is “building a team of lawyers to take on Fiona's case and look into all potential claims against Richard Judd, Clerkenwell Films and Netflix.”

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Dow, who has not formally represented Harvey in a legal capacity, added: “It will take some time to gather all the evidence and prepare a legal claim, but this process is well underway.” “We are seriously considering defamation, image rights and all other potential claims, arising from the use of Fiona’s image in the film Baby Reindeer.” (Netflix declined to comment, and representatives for Gadd and Clerkenwell Films did not respond.)

The United Kingdom is known to be more supportive of defamation plaintiffs than the United States, where the First Amendment protects a wide range of offensive and insulting speech. In the United Kingdom — where much of the law is drawn up in clashes between royals and tabloids — plaintiffs can also pursue invasion of privacy claims or other legal remedies in addition to defamation.

With a legal battle seemingly looming on the horizon, diverse I spoke to two lawyers in the UK to find out what claims Harvey might try to make against the show's creators — and how likely they are to succeed.

How strong is a libel or defamation case?

Callum Galbraith, Head of Media Conflicts at Hamlins, said: diverse That if he had a client in Harvey's shoes, he would “immediately consider whether there is a potential defamation claim that could be brought on the basis that the allegations are untrue and defamatory insofar as they diminish her reputation in the eyes of what others might think.”

But truth is a defence, so if producers can prove that the disputed claims are substantively true, they will prevail. However, Harvey claimed that there are major differences between the show and reality.

In the show, Martha is arrested and sentenced to nine months in prison for stalking Jade's character. In real life, Harvey said she was neither convicted nor sent to prison. The Scottish Daily Record reported that she was given a “first-degree harassment warning” by the Metropolitan Police.

Another contradiction concerns the volume of messages sent by the character Martha. The show sends 40,000 emails plus voicemails. In real life, Harvey admitted to sending emails to Gad, but no more than 10.

In his interview with diverseGad said the show was “100% emotionally true” but admitted “you can't do the truth completely for legal and technical reasons.”

If the case does go to court, it will be up to a judge to decide the disputed facts and determine whether any fiction damaged Harvey's reputation.

“What is depicted in the material must diminish the person’s reputation,” said John Lineker, IP partner at Fieldfisher. “And if you have a lot of things right – 90% right and 10% wrong – is that defamation? Because maybe the extra 10% won’t make much difference to your reputation.

Lineker said that even if Jade could prove she pursued him, portraying her as guilty “takes it to another level” if it is untrue. “This is defamation, even though there are 40,000 emails,” Lineker said. The same applies to Martha's attacks on both Jade and his girlfriend, Terry.

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 Data Protection Act. To prevail, Harvey had to prove that her “reasonable expectations of privacy” were violated, and that her right to privacy outweighed Netflix’s interests in telling Gad’s story.

One key point will be whether Gadd changed the identifying details of “Martha” enough to prevent her from being identified. “There's probably no hard and fast rule about what's expected in this kind of scenario,” said Galbraith, who is currently representing Prince Harry and Sadie Frost in their allegations of illegal information gathering against the Daily Mail.

“A lot of times changing someone's name is enough,” Galbraith said, though he noted that the many similarities between Martha and Harvey amount to “jigsaw recognition,” enabling people to figure out the connection. (In addition to being Scottish, with a legal background and a reputation for stalking, Harvey also once tweeted at Gad that “my curtains need to be hung up bad” in 2014, an uncommon phrase used by Donnie and Martha on the show.)

Lineker said that the scene in which Gad discovers newspaper reports of Martha stalking a lawyer's wife 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 politician.

“I think it's probably also very important that even though they changed the name, it looks like [physical] “The resemblance between the person on the Netflix show and the person on the Piers Morgan show is uncanny,” Galbraith said. “So this is probably not very useful from a Netflix or Gadd perspective.”

Is there a possibility to claim copyright?

With Martha's real emails shown several times throughout the show — her hastily scrawled “Sent from my iphoen” sign off has since gone viral — Lineker and Galbraith said Harvey could also have a copyright claim.

“One question will be: Is this product original enough to attract a copyright?” Galbraith said. “Because some of the messages are relatively short, I think the court would probably find that. And it's not clear what defenses there are, because it appears that a lot of those messages were published in their entirety. So they can't then argue and say, 'We didn't publish a significant portion Of those letters or those emails” because it shows them on the screen.

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In 2022, Meghan Markle sued the Mail on Sunday for copyright infringement after it reproduced parts of a letter she wrote to her father, which he shared with the newspaper. The court found in her favour. 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 Lineker nor Galbraith expect the case to go to court, as that would likely not be in either side's interest.

Lineker suggested that because of the cost – and the fact that the trials are high-stakes – Netflix would likely want to settle, pointing to Prince Harry as an example. Earlier this year, the prince dropped his libel action against the Mail on Sunday, despite winning the first phase of it, leaving him with legal bills worth £750,000, a third of which was postage costs.

There's also the Streisand effect in the defamation lawsuit. “We advise a lot of people who think they've been defamed to stay completely silent unless it's really upsetting,” Lineker said, explaining that a trial usually gives more oxygen to a claim someone makes. incorrect.

Then there is the psychological impact a trial can have. “if [Harvey] “If you sue and it ends up in court, you're going to have a very difficult time,” Lineker said, referring to the often difficult interrogation process.

What could be the damages?

It's difficult to calculate how much Harvey could win if she goes to trial, but her edge over Piers Morgan could influence the final amount. “I don’t think she would be able to seek damages from the point where she becomes liable for people knowing that it was her,” Galbraith said.

Lineker, who said he was “absolutely drawn” to Baby Reindeer, assumed while watching that the real Martha would have been offered in the region of £20,000 to waive any potential claims in a pre-broadcast settlement. “Because it's a piece of perforated material to stick out your neck with,” Lineker said. “It was obvious that Netflix would do this.”

It was also likely to avoid a long legal battle that may now loom.

Gene Maddos contributed to this story.

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