Commercial Awareness Update – W/C 2nd September 2024

TRUE STORY OR LEGAL LIABILITY? – THE DEFAMATION ISSUES SURROUNDING NETFLIX’S BABY REINDEER

The recent hit Netflix show Baby Reindeer has been controversial. The person depicted by the character of Martha Scott sued Netflix for around £135 million for defamation, negligence, and breach of privacy.

Miss Harvey states that although the lawsuit was issued in California, she is also preparing to issue a similar claim in the UK. The case can potentially reshape the relationship between UK defamation law and media institutions, particularly regarding how real-life individuals are portrayed within the media and where to draw the line between a work of fact and fiction.

The show, which first aired on Netflix in April 2024, starts by claiming, ‘This is a true story’ and ends by stating that significant efforts had been made to hide the original identities of those depicted in the show. However, within days of the show’s airing, individuals tracked down the character referred to as Martha Scott to be one Fiona Harvey.

Since then, Miss Harvey has been subject to a continuous flood of abuse and death threats, which she states has left her “completely secluded” and in a “constant state of fear”.

Questions are now being asked about Netflix’s liability in the ongoing harassment of Fiona Harvey and the prospects of Miss Harvey filing a claim against the media company for defamation and harassment in the UK.

The legal issue

One of the critical disputes concerns the show’s claims that the character depicting Miss Harvey is a convicted criminal, which Miss Harvey’s lawyer, Richard Roth, claims is untrue. Under S1 of the Defamation Act 2013 (DA 2013), to falsely accuse someone of being a criminal would meet the ‘serious harm’ threshold necessary to establish a defamation claim. This ‘serious harm’ threshold requires any allegedly defamatory statement to ‘cause or is likely to cause serious harm to the claimant’s reputation.’

For Miss Harvey, her claims that she now lives in a constant state of fear and is subject to online harassment and death threats could be deemed as supportive evidence of this ‘serious harm’. The online abuse that Miss Harvey is being subjected to could also be constituted as harassment under the Protection from Harassment Act 1997 due to its threatening and repetitive nature.

The critical issue with any upcoming legal case will be establishing Netflix’s liability. Whilst Netflix’s VP of Content claims the show is a “drama, not a documentary”, the show’s opening credits stating ‘This is a true story’ somewhat contradict this and blur the lines between what is fact and what has been exaggerated for effect.

It will be for the court to determine whether the likeness between Fiona Harvey and Martha Scott is so similar as to be decided that general audiences would not distinguish between the two.

If this were the case, any accusations or harmful depictions of Fiona Harvey in Baby Reindeer would be defamatory if they cannot be substantiated. However, successfully establishing defamation is not the only requirement. Also, the DA 2013 includes several defences that Netflix may utilise in its favour, such as s2 (defence of truth) or s4 (defence of publication) on matters of public interest.

Regardless of the outcome of any UK-based case, media organisations operating within the UK will likely face legal repercussions.

Implications for media outlets/streaming services

An outcome in favour of Miss Harvey, which establishes Netflix’s culpability in subjecting her to an onslaught of harassment and abuse alongside displaying false, defamatory information about her person, would have severe ramifications on how media outlets regulate and manage similar ‘docuseries’ that blur fact and fiction for dramatic purpose. One of these changes could be the amendment of broadcasting guidelines regulating media based on ‘true stories’.

More specifically, tighter restrictions on the type of content that can be displayed, especially if said content has the potential to cause harm to the individual it is referring to, may be implemented. However, so as not to significantly restrict the creative freedom of media outlets, such ‘harmful content’ should only refer to that which cannot be factually substantiated.

Doing so would avoid the potential for a similar Martha Scott-type case to arise in the future over (as of currently) unsubstantiated claims, which may have been embellished for dramatic effect.

Another significant change would be the potential introduction of mandatory consent (where possible) from all the substantial individuals/parties to be depicted within a piece of media. Such consultation would allow collaboration and transparency in portraying these characters. Still, it could cause issues with the creative liberties those on the show can take.

Such an issue reverts to one of the central questions the Court must determine when deliberating this case: “What is the balance we want to achieve between ensuring creative freedom within the entertainment industry and protecting the personal identity and privacy of those depicted?”

Implications for defamation law

Following a successful outcome in any defamation case brought by Miss Harvey against Netflix in the UK, media regulators such as OFCOM may introduce more stringent measures. Such measures could be more robust guidelines to protect individual privacy. These measures would place more responsibility on media institutions to protect and hide the real-life identities of those depicted in their shows.

For example, with Baby Reindeer, introducing these guidelines would place heightened obligations on Netflix to protect the character’s real identity from being uncovered.

However, an outcome favouring Netflix could lead to calls for UK defamation laws to be amended. This amendment would introduce protections for media outlets when adapting real-life events into shows, limiting any potential liability they may face as long as no harm is caused. This protection, whilst already partially evident through s2 of DA 2013, would allow media companies more creative freedom and flexibility without fearing court proceedings for depicting facts.

The key takeaway here is the importance of ‘depicting facts’. Currently, the outcome of the case between Miss Harvey and Netflix is contingent on establishing the facts of the case.

Suppose Netflix can prove that Miss Harvey has a criminal record, alongside any other potentially harmful claims made throughout the show. In that case, any prospective legal challenge by Miss Harvey in the UK will likely be protected by s2 of DA 2013.

However, the show makes several potentially damaging claims about Miss Harvey. Suppose even one of these were identified as false or heavily exaggerated for dramatic purposes, causing harm to Miss Harvey. In that case, this may have the subsequent effect of reshaping the way media outlets approach similar docu-series-type content in the future to avoid potential liability.

While it is yet to be seen whether Miss Harvey will bring legal proceedings in the UK, the US case will allow the full facts of the case to be established, and then the success of any UK case can be determined.

• By Liam Ridgley

AN ANALYSIS OF THE WORKER PROTECTION ACT AND ITS IMPACT ON EMPLOYERS

The Worker Protection Act 2023 (The Act), which comes into effect in October 2024, represents a transformative change in the duties imposed on UK employers to address sexual harassment in the workplace.

This landmark legislation introduces a proactive obligation for employers to take “reasonable steps” to prevent harassment, significantly raising the stakes for organisations across all sectors.

Fundamental changes introduced by the Worker Protection Act

• Enhanced employer duties: The Act amends the Equality Act 2010 by imposing a new duty on employers to prevent sexual harassment actively. Unlike previous regulations, which focused on addressing harassment post-occurrence, this Act requires employers to anticipate and mitigate risks proactively. Non-compliance could result in severe penalties, including a potential increase in compensation for sexual harassment claims by up to 25%.
• Third-party harassment liability: A pivotal element of the Act is reintroducing employer liability for harassment perpetrated by third parties, such as customers or clients. This expands the scope of employer responsibility, obliging them to address potential risks from external sources, not just internal personnel. Employers must now implement preventive measures to shield employees from harassment by individuals not directly affiliated with the organisation.
• Preventive measures for compliance: To align with the new legal requirements, employers should adopt a comprehensive array of preventive strategies:

1. • Risk assessments: Conduct thorough evaluations to identify areas and situations where sexual harassment is most likely to occur within the organisation.
   • Policies and training: Revise existing anti-harassment policies and ensure all employees receive regular, relevant training tailored to the specific needs and risks of the workplace.
   • Effective reporting mechanisms: Establish and maintain accessible, confidential, and well-publicised channels for employees to report incidents of harassment.
   • Cultural initiatives: Foster a workplace culture where employees feel secure in reporting concerns and are assured that their reports will be addressed appropriately and effectively.

• Future legal landscape: The trajectory of workplace harassment prevention may evolve further depending on the outcome of the forthcoming general election. Should the Labour Party secure victory, the scope of the Act could be broadened to encompass the prevention of all forms of harassment, not solely sexual harassment. This would further heighten employer responsibilities in cultivating a safe and respectful work environment.

The legal sector’s role and implications for law firms

• Law firm responsibilities: Law firms advising clients on the Act must offer comprehensive guidance addressing the new legal obligations. Additionally, law firms must introspectively evaluate their workplace environments. The legal sector has not been immune to issues of sexual harassment, as evidenced by detailed guidance from the Solicitors Regulation Authority and the emergence of advocacy groups such as Behind the Gown.
• Reputational risk: Law firms face considerable reputational risks associated with non-compliance. As entities that represent clients in legal matters, including harassment cases, law firms bear an added responsibility to exemplify best practices within their workplaces. Failure to do so could undermine their credibility and efficacy in advising clients.

Preparing for October 2024 and beyond

• Immediate steps: Employers should begin preparations to meet the October 2024 compliance deadline. Delaying action could result in non-compliance, legal challenges, and reputational damage. Employers are advised to start by reviewing and enhancing their current policies, conducting training, and fostering a workplace culture prioritising employee respect and protection.
• Guidance from the EHRC: Employers can expect further detailed guidance from the Equality and Human Rights Commission around September 2024. Proactive measures will ensure organisations are ready to meet new legal standards.

The Worker Protection Act represents a significant advancement in the battle against workplace harassment and employers to a higher standard of accountability. As the implementation date approaches, employers and law firms must act decisively to ensure compliance with the new requirements and contribute to creating safer, more respectful workplaces across the UK.

By Nawal Abdul Wahab