Can The Real-Life Martha Sue In Defamation?

In a previous blog, the recent Netflix drama Baby Reindeer has been discussed.

In that series, billed as being a true story, an individual by the name of Martha stalks the main character, Donny, his family, and partner, both in person, by text message, and by email. Whilst the name of the individual was changed, it did not take long for the online community to track down the real-life Martha, who is an individual by the name of Fiona Harvey. Ms Harvey has recently given an interview with Piers Morgan about her side of the story, in which she denies stalking and/or that she has a criminal record as a result of stalking. Ms Harvey has indicated an intention to sue Netflix and the program’s creator, Richard Gadd, for defamation.

The question arises as to whether she would have good grounds to sue for defamation. Dealing with the core elements of defamation is below.

1. Were words spoken that would lower her in the minds of right-thinking members of society generally?

The first difficulty that Ms Harvey will have in pursuing a claim is the fact that the individual in the series has a completely different name. Ms Harvey will need to be able to establish that the series identifies her. Given that the series was billed as being a true story and the online community managed to locate Ms Harvey with ease, she may be able to overcome that hurdle, but it is certainly not clear cut. If Ms Harvey is able to overcome this hurdle, the story depicted about her definitely paints her in a negative light and would undoubtedly be defamatory in nature.

2. Serious harm

In order to succeed in defamation, Ms Harvey would need to establish serious harm to her as a result of the series. The fact that Ms Harvey has been located by the online community and is most likely experiencing a certain degree of trolling online, she will most likely be able to establish serious harm but this will be a matter of evidence. The Court can consider an inference of serious harm but in a case such as this, if Ms Harvey’s claim is in respect of her being trolled online, the Court would expect to see posts, messages, and emails as proof.

3. Defences

If Ms Harvey manages to persuade the Court in respect of the factors set out above, the burden will then shift to Mr Gadd to establish one of the statutory defences. Mr Gadd is likely to claim that the story is substantially true. Given that he claims in the series that he received over 41,000 emails/messages, he will be expected by the Court to produce in evidence most if not all of those messages. If he is able to do so, he is likely to establish a defence of the comments being substantially true.

Whilst the above, gives a flavour of the process that the Court will go through should Ms Harvey sue Netflix and Mr Gadd, defamation cases are very fact/evidence specific. Without sight of all of the evidence, it would be impossible to make a judgment on whether Ms Harvey would be able to succeed or not. Only time will tell as to whether Ms Harvey will bring such a case and, if so, the outcome of it, but what is patently obvious is that, if Ms Harvey wishes to clear her name beyond doubt, a trial is inevitable in such a case.