Attorney Richard Roth on the Defamation Lawsuit Over Netflix’s ‘Baby Reindeer’

Published: Aug. 27.

Richard Gadd and Jessica Gunning in “Baby Reindeer.” (Ed Miller/Netflix)

Fiona Harvey, a Scottish woman reportedly identified as the basis of the character “Martha” from Netflix’s hit miniseries “Baby Reindeer,” filed a $170 million defamation lawsuit in June against the streaming service, claiming the series described as “a true story” is actually “the biggest lie in television history” and “destroyed her reputation, her character and her life.”

“Baby Reindeer,” released in April, is a dark comedy focused on aspiring comedian and bartender Donny Dunn (Richard Gadd) and his tumultuous relationship with his stalker, Martha Scott (Jessica Gunning). The miniseries is an adaptation of Gadd’s one-man play.

Headshot of Richard Roth. Photo courtesy of Richard Roth

The complaint, filed by attorney Richard Roth on behalf of Harvey, describes the ways in which Harvey was easily identifiable by internet sleuths days after the miniseries’ release, making her subject to threats and harassment. The suit alleges that contrary to the portrayal of “Martha” in the show, Harvey “has never been convicted of a crime,” has “never sexually assaulted Gadd,” has “never stalked Gadd” or a police officer, and has “never attacked Gadd.”

When reached for comment, a Netflix spokesperson referred to the company’s arguments in court filings.

Netflix argued that the “Series is an expressive work protected by the First Amendment,” so all of Harvey’s claims should be dismissed and are barred under California’s anti-SLAPP statute. The company also claimed that Harvey herself “proclaimed she was the supposed inspiration for the Martha character,” undermining her claims of intentional infliction of emotional distress.

In the credits at the end of each episode, Netflix includes a disclaimer which states: “This program is based on real events: however certain characters, names, incidents, locations, and dialogue have been fictionalized for dramatic purposes.”

But on Netflix’s Tudum, an official companion site which features news and behind-the-scenes content about the streaming service’s original shows, it states that “it’s important to remember that this isn’t just a story — it’s true.”

In an interview with First Amendment Watch, Roth explains the claims in Harvey’s lawsuit, discusses the allegedly damaging inaccuracies in “Baby Reindeer,” and argues that Harvey is a private person despite Netflix’s claim that she should be considered a public figure.

Editor’s note: This interview has been edited and condensed for length and clarity.

A screenshot of a title page in Episode 1 of “Baby Reindeer,” included in Fiona Harvey’s defamation lawsuit.

FAW: Would the defamation suit hold any weight if the miniseries opened with: “This is based on a true story but all characters depicted in it are fictional,” rather than, “This is a true story”?

RR: Yeah, the answer is very simple. It certainly would have made a difference. Would I still have a case? I would have to do that analysis. But the two things that Netflix does, both of which are really, really inappropriate, first is that they do say, “this is a true story.” They don’t say “based on,” they don’t say “inspired by.” A lot of money, a lot of time and a lot of lawyers and legal thought goes into what to say. That sentence is not said from a whim. It’s said from serious discussions. And quite frankly, when you say it’s a true story, you make a lot more money than if you say it’s based on a true story. So the answer is it would certainly be a different case. The second thing they do wrong, which quite frankly is incredible, is that they do nothing to camouflage or hide who the people are. Not only do you have Richard Gadd, who is both the writer and the actor, who plays his own role, so you know it’s someone who has a relationship with him, but they also put this “Martha” on, who looks like Fiona, has the same Scottish accent as Fiona, goes to the same bar, sends the same tweets, sends the same email, the same Facebook posting, everything is identical. There’s a whole thing about hanging your curtains, right? They could have said something like “mind your drapes,” or “raise the drapes,” but they instead went with the exact same verbiage that is used in real life. So they said it’s true. They did nothing to camouflage it, and quite frankly it’s worse and irresponsible to say it’s true when it’s not true. And in fact, [on July 29], we got their motion papers. They made a motion to dismiss, and their motion says that it’s fictionalized, and it’s not true. Well, if that’s the case then why are you saying it’s a true story? They really are tying themselves in knots when it comes to this story, and there’s a responsibility by anyone in the communications industry, whether it be a newspaper writer, be it a streamer, if you’re saying something’s true, you better make sure it’s true. You better fact check. And they did nothing to confirm its veracity. And that’s what’s very troublesome, that Netflix didn’t care.

@MrRichardGadd my curtains need hung badly

— Fiona Harvey (@FionaHarvey2014) September 23, 2014

FAW: Defamation law requires that there is an identifiable person who has been defamed. Where is the line drawn between fictional characters and identifiable characters in defamation law? How large a group has to initially recognize the character as real?

RR: The test is whether or not one can reasonably conclude that it’s of or concerning the plaintiff. And this is not 10 years ago. In this day and age, all you have to do is go on Twitter and put words in and boom, you have it. It takes a nanosecond to find out who this is. This is not like you have to look in the newspaper and do all kinds of research. It’s very easy to find out. When it’s so simple to find out who you’re writing about, then it’s “of and concerning.” And the interesting thing about their motion that they just filed on July 29 is that, on the one hand, they say it’s fictional. It’s not true. It was never meant to be a true story. On the other hand, they have pages and pages and pages of how Fiona Harvey is a stalker. Well, if it’s not about her, then why are they putting a whole bunch of information in their motion about her? It either is or it isn’t.

In this YouTube screenshot, Fiona Harvey appears on “Piers Morgan Uncensored” on May 10, 2024.

FAW: How was Harvey identified as the supposed “Martha” from the series? How did this impact her? What details led to the claim of “infliction of emotional distress” in the complaint?

RR: It’s the same bar. It’s the same actor, writer. They both live in this town in Scotland. So it’s the same look, a heavyset Scottish woman [with a] very strong Scottish accent I might add. And so how did it affect her? I mean, it has significantly affected her. This woman is afraid to leave her apartment because people are giving her death threats and calling her a stalker and calling her a convicted criminal. Let’s not forget, they said in the series twice that she was convicted, and the first time they say it was when [Gadd] does a Google search, and he finds that she was allegedly convicted of stalking and was in jail for four and a half years. That’s just false. She wasn’t even arrested, let alone in jail for four and a half years. And the second time is the last episode where she’s crying and she says “Guilty” while looking at him in the eyes when she’s behind this plexiglass four different times. That didn’t happen either. And when you say someone’s a convicted felon, that’s defamatory. It never happened. And whose job is it to fact check? It’s Netflix’s job. Mr. Gadd, you’re saying it’s true. Was she convicted? Or is that false? Because if it’s false, we better either change the beginning — “This is a true story”— or we better somehow make it clear to anyone who watches it that this is in fact untrue.

A screenshot of a scene from “Baby Reindeer” in Episode 7 at -15:42, as included in Harvey’s defamation lawsuit.

FAW: The complaint does not plead that Harvey is a private person or a public figure. Why not? What is her status under defamation law?

RR: We don’t get into that, but the bottom line is this woman was on her own, doing her thing, has not been in the limelight in over 20 years, if you can call it limelight, and she clearly was not a public figure. They’re trying to say she’s a public figure, because Gadd somehow turned her into one. That’s not the way it works. She’s clearly not a public figure. She hasn’t been involved in any kind of publicity for over 20 years and so we do not say that. But I thought that was a given. It’s not like when E. Jean Carroll sued Donald Trump, who’s clearly a public figure and is in the limelight. This is a woman who was sitting in her home when one day she woke up to find all kinds of death threats.

FAW: Why did you choose to file this defamation case in California?

RR: Very simple. We don’t want Netflix to stand behind all kinds of procedural motions. We’ve done research. We know if it’s not brought in California, they’ll say there’s no jurisdiction. They’ll say it’s an inconvenient forum. They’ll make all kinds of motions. We want to pass right through that. I don’t care where we sue. It doesn’t matter. It doesn’t matter where we sue. But we’re suing in California for that reason.

FAW: Has this happened before?

RR: There have been cases against Netflix. There was a case with Linda Fairstein who was a former [prosecutor] in New York City that settled a couple months ago. So yes, there are other instances, but nothing this blatant. I’ve never seen something so blatant.

FAW: Identification has been difficult to prove in many prior cases. One prominent case in California — the jurisdiction where you filed — did not even survive dismissal under the state’s anti-SLAPP law and could be a roadblock to your client’s claims. In Blakley v. Cartwright (2014), a film’s screenwriter successfully defended a defamation lawsuit that claimed a main character of the film represented his ex-wife — whom he’d had a long-running custody battle with — and depicted her as a bad parent. The court dismissed her lawsuit under the state’s anti-SLAPP law, agreeing with the screenwriter that the alleged similarities between his ex-wife and the film’s character were superficial. How can your case survive similar anti-SLAPP arguments in light of this case? What makes your case different from the precedent set in Cartwright and other prior cases?

RR: The anti-SLAPP statute essentially prohibits someone from suing for defamation, if in fact there was no wrongdoing by the writer, the publisher. The reason why this case is different than most, if not any other cases, is twofold. Reason number one is that Netflix said in the story, in its advertising, testified in front of the House of Commons that this is a true story. The advertising said it’s a true story. Benjamin King, [Netflix’s head of public policy in the UK], testified in front of Parliament “it’s obviously a true story.” The second thing is, you have to show that it’s of and concerning this defendant. They don’t say her name. They are correct. They call her Martha, and if I can’t show that Martha is Fiona, then I would lose. The problem with Netflix’s argument is that they’ve done everything to make her Fiona. She’s got the same dress, she’s got the same accent, she’s a lawyer. She wears the same clothes, she eats the same things. Her wristwatch is even the same, she’s got the same cadence, everything. And that leads you to conclude Fiona. And most damning to Netflix, is the fact that they use the same tweets and the same Facebook posts that Fiona used. And in today’s day and age, all you need to do is put, “hang my curtains” in Twitter, and you’re going to see Fiona. So we have to show that this is of and concerning Fiona no different than someone saying something negative about the CEO of let’s say IBM. They don’t say his name, but they say the CEO of IBM, you have to figure out who the CEO is. Well, the internet allows you, very quickly, to determine who that person is. So long as they lie about it being a true story, and we are able to identify Fiona, which we clearly are, then I’m very confident the court’s going to deny their motion to dismiss and the anti-SLAPP motion.