Nikolas Gieler
The advent of social media has gradually brought our private identities to the forefront of public life. Information about the lay person is now available to anyone with an internet connection, blurring the lines between what is yours and what is public domain. So, what happens when a zealous filmmaker decides to capitalize on your persona? And, more importantly, what happens when that persona is divorced from reality?
This very issue was at the heart of Fiona Harvey’s 2024 defamation suit against Netflix regarding her characterization in the critically acclaimed miniseries Baby Reindeer.1 Harvey contends that the show’s portrayal of her as a relentless stalker, convicted and sentenced to serve multiple years in prison is false.2 The series also depicted Harvey as the perpetrator of sexual assault against show creator Richard Gadd, which she equally denies.3
Part of the impetus for the suit revolved around the opening episode’s claim that “this is a true story.”4 While one might assume this representation would impose some additional obligation of accuracy, in practice, the legality of fictionalization is somewhat inconsistent.5 Crucially, in Harvey’s suit against Netflix, the District Court intimated that the language used “invit[es] the audience to accept the statements as fact.”6 However, litigation is still pending, and it remains to be seen whether this language will prevail against courts’ typical deference towards audience competence.7 Similar phrases like “BASED ON ACTUAL SECRETS,” for example, were held to be that no reasonable viewer would believe the work was “conveying assertions of objective fact.”8 Courts reason that for “docudramas” in particular, audiences widely believe that “based on a true story” still implies fictionalization played a role, raising the bar for recovery.9 While this may be true, it is somewhat disquieting in light of the fact that this effectively incentivizes creatives to use representations of truth as marketing ploys, as audiences are able to foster connections with characters and scenes more easily.10 Fargo film writer and producer Ethan Coen even went on record saying, “You don’t have to have a true story to make a true story movie.”11 As such, filmmakers can tactically label their work as “based on a true story” to garner audience trust, boost their profit margins, and yet escape the legal ramifications of “false advertising” as expressive, not commercial speech.12
This issue is compounded by the fact that, for the subjects of fictionalization, lodging successful defamation suits is already a difficult and arguably an ineffective remedy.13 While each state boasts its own defamation standards, plaintiffs are generally required to show there was a published, false statement of fact, that it was “of and concerning” the plaintiff, caused reputational damage, and was made either negligently when addressing private individuals, or with actual malice for public figures.14
Widening the scope of defamation claims, however, isn’t a universal solution. A recent rise in these very claims has caused insurance premiums for films to skyrocket.15 This could have the inverse effect of making creators reluctant to produce compelling works, or works at all, in fear of a litany of defamation claims from opportunistic plaintiffs.16 The insurance implications aside, even if plaintiffs can claim compensatory damages en masse, winning in a court of law might not restitute the reputational losses from the court of public opinion.17 Accordingly, a more clear and consistent legal standard is needed to define the level of factual accuracy expected in works presented as “based on true events.”18
However, the imposition of such a standard might be even more a creature of fiction than the controversial drama series themselves. The First Amendment confers filmmakers a generous latitude to portray individuals in manners not entirely consistent with reality.19 On a public policy level, maintaining creative license to fictionalize elements of a story is critical to freedom of expression, and should remain protected.20 That said, the First Amendment does not grant creators carte blanche authority to depict individuals in any way they see fit.21 In Time, Inc. v. Hill, the Supreme Court established that “knowingly false statement[s]” made with reckless disregard of the truth, do not enjoy constitutional protection.”22 Even a disclaimer highlighting that characters and events were fictionalized, does not “give the filmmaker license to defame a person.”23
Ultimately, until a clear standard for the scope of these disclaimers is developed, the only “true story” is that both creatives and the subjects of their works alike, will remain uncertain of their legal standing.
[1]Jake Kanter, Netflix’s ‘Baby Reindeer’ Legal Battle Quietly Rumbles On As Series Targets BAFTA Glory, Deadline (Apr. 29, 2025), https://deadline.com/2025/04/netflix-baby-reindeer-fiona-harvey-bafta-1236379956/.
[2]Sian Cain, “Baby Reindeer” was wrongly billed by Netflix as a ‘true story’, judge finds, The Guardian (Sept. 30, 2024), https://www.theguardian.com/tv-and-radio/2024/sep/30/fiona-harvey-baby-reindeer-defamation-lawsuit-richard-gadd-netflix.
[3]Issy Ronald, Judge allows defamation lawsuit against Netflix over ‘Baby Reindeer’ to proceed, CNN (Sept. 30, 2024), https://www.cnn.com/2024/09/30/entertainment/baby-reindeer-lawsuit-intl-scli.
[4]Christi Carras, The ‘Baby Reindeer’ case against Netflix could hinge on one line: ‘This is a true story’, LA Times (Oct. 14, 2024), https://www.latimes.com/entertainment-arts/business/story/2024-10-14/baby-reindeer-lawsuit-netflix-richard-gadd-real-martha-fiona-harvey.
[5] Brandy S. Ringer, Based on an Almost True Story: Providing Real-Life Protection to Real-Life Characters, 13 Pitt. J. Tech. L. & Pol’y 1, 2 (2012).
[6]Harvey v. Netflix, No. 24-cv-04744, 2024 U.S. Dist. LEXIS 193569, at *18 (C.D. Cal. Sept. 27, 2024).
[7]See Mossack Fonseca & Co. v. Netflix, Inc., No. 2:19-cv-09330-CBM-AS(x) (C.D. Cal. Dec. 23, 2020).
[8]See id.
[9]See, e.g., Partington v. Bugliosi, 56 F.3d 1147, 1155 (9th Cir. 1995); de Havilland v. FX Networks, 230 Cal. Rptr. 3d 625, 643 (2018); Basulto, 2023 U.S. Dist. 167374, at *63-64.
[10] Alex B. Long, All I Really Need to Know about Defamation Law in the Twenty-First Century I Learned from Watching Hulk Hogan, 57 Wake Forest L. Rev. 413, 434 (2022).
[11]Bill Bradley, The Coen Brothers Reveal ‘Fargo’ Is Based on a True Story After All, HuffPost (Mar. 8, 2016), https://www.huffpost.com/entry/Coen-brothers-fargo-true-story_n_56de2c53e4b0ffe6f8ea78c4.
[12]Rick Kurnit, False Advertising of Entertainment is Different, Advertising Law Updates, Frankfurt Kurnit Klein & Selz PC (Aug. 30, 2018), https://advertisinglaw.fkks.com/post/102f1b0/false-advertising-of-entertainment-is-different.
[13] Leslie Y. Garfield Tenzer, Destroying Defamation, 14 Harv. J. Sports & Ent. L. 329, 361 (2023).
[14] J. Thomas McCarthy & Roger E. Schechter, The Rights of Publicity and Privacy § 5.107 (2d ed. 2010); See id. § 5.109.
[15]See Shawn Rice, Depp-Heard Dispute Turns Spotlight on Defamation Coverage, Law360 (Aug. 5, 2022), https://www.mckoolsmith.com/assets/htmldocuments/2022%2008%2008%20Depp-Heard%20Dispute%20Turns%20Spotlight%20On%20Defamation%20Coverage-Law360.pdf.
[16] Madison Karsenty et al., A Delicate Balance: Navigating the Increased Risk of Defamation Claims in the Golden Age of Docudramas, 35 Fordham Intell. Prop. Media & Ent. L.J. 592 (2025).
[17]See Brandy S. Ringer, Based on an Almost True Story: Providing Real-Life Protection to Real-Life Characters, 13 Pitt. J. Tech. L. & Pol’y 1, 9 (2012).
[18]Id. at 12.
[19] Matthew Stohl, False Light Invasion of Privacy in Docudramas: The Oxymoron Which Must Be Solved, 35 Akron L. Rev. 293 (2002).
[20]Don Nguyen et al., A Case Study on the First Amendment Defense for Entertainment Industry Employers, Littler (Sep. 20, 2024), https://www.littler.com/publication- press/publication/case-study-first-amendment-defense-entertainment-industry-employers.
[21]Chaplinsky v. New Hampshire, 315 U.S. 568 (1942).
[22]Time, Inc. v Hill, 385 U.S. 374, 390 (1967).
[23]See Gaprindashvili v. Netflix, Inc., No. 21-cv-07408, 2022 U.S. Dist. LEXIS 23304, at *15 (C.D. Cal. Jan. 27, 2022).