‘Martha’s’ suit against Netflix for ‘Baby Reindeer’ will run into the 1st Amendment

Fiona Harvey, the apparent inspiration for the character Martha in the Netflix series “Baby Reindeer,” has sued Netflix and comedian Richard Gadd, the writer, director and star of the series, for portraying Martha as a character who stalks and sexually assaults Donny, the main character who’s based on Gadd. Netflix describes the series as “a true story.”

There appears little doubt that Harvey’s life has been raked over the coals by internet sleuths who identified her as the “real life Martha.” She has undoubtedly suffered greatly as a result of being exposed as the person apparently behind a key character in the series. But our robust First Amendment tradition demands that artists (including authors, directors and performers) be able to express themselves and share those expressions with the public. People may suffer as a result of a law that often favors protecting the rights of those seeking to share communication, even if vile and hurtful, over those who seek to be let alone.

As explained on Netflix’s website, “Baby Reindeer” “centers on struggling comedian Donny Dunn’s (Gadd) strange and layered relationship with a woman named Martha (Jessica Gunning), whose initially friendly demeanor unravels as she begins to stalk Donny relentlessly.” The series is based on a show that Gadd has been performing for years.

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Harvey alleges that Gadd and Netflix fabricated “brutal lies” about her, including that she is “a twice convicted stalker who was sentenced to five years in prison” and that she “sexually assaulted Gadd.” Harvey — who says she has never been convicted of a crime or gone to prison, never sexually assaulted Gadd, never stalked him or a police officer, and never attacked him — vehemently denies that “Baby Reindeer” is a true story.

Harvey claims that her “identity was completely undisguised” and that within “days after the release of Baby Reindeer on April 11, 2024, members of the public identified” her as the basis for the Martha character. She was able to be so easily identified, Harvey alleges, because of a then-publicly accessible post she made on Twitter (now X) in 2014. As a result, Harvey contends that she has been “tormented” and suffered severe mental, emotional and physical distress. We don’t yet have Netflix and Gadd’s court filing responding to Harvey’s suit, only a vow from Netflix to “defend this matter vigorously and to stand by Richard Gadd’s right to tell his story.”

If Harvey was defamed, as she claims, then she should succeed on her claims, but whether she can succeed on a defamation claim will depend on whether “Baby Reindeer” portrays truths or falsities. The success of her claims will also depend, in part, on whether she was identifiable.

Gadd previously said in an interview, “We’ve gone to such great lengths to disguise her to the point that I don’t think she would recognize herself.” However, given how quickly people on the internet identified Harvey as Martha, Gadd’s statements seem more aspirational than based in reality. And while Harvey is referred to in the series as Martha, and not Fiona, Harvey alleges that little else about her identity was changed. She says in the suit that, like Martha, she is a “Scottish lawyer, living in London, twenty years older than Gadd … accused of stalking a lawyer in a newspaper article,” and, she says, she “bears an uncanny resemblance to ‘Martha.’” 

It’s important to separate Harvey’s defamation claims from her allegations that Gadd and Netflix violated her right of publicity under California common law and statutory law. Those allegations should not succeed. To succeed on her common law or statutory causes of action, Harvey must show that Gadd and Netflix used her identity for their benefit without her consent and that caused her to suffer an injury. While using a person’s name or likeness in advertising is a quintessential example of a violation of this tort, the problem for Harvey is that “Baby Reindeer” is an expressive work of entertainment.

In the decades-old Haynes v. Alfred A. Knopf, Inc., the Seventh Circuit found, “The possibility of an involuntary loss of privacy is recognized in the modern formulations of this branch of the privacy tort, which require not only that the private facts publicized be such as would make a reasonable person deeply offended by such publicity but also that they be facts in which the public has no legitimate interest.” And here the public is interested. “Baby Reindeer” is hugely popular.

Harvey’s right to publicity should not be measured just against the public’s right to consume information. There is an additional First Amendment issue at play. Gadd is not a detached reporter, but is sharing what he says is his own story. Again, if a story he claims is true is actually false, then he should be liable for defamation. But if his story is true, then those around him likely need to suffer the fallout of his decision to share it.

Harvey’s allegations concerning her right to publicity present a classic battle between privacy rights and the First Amendment rights of artists and their audience. Privacy rights should not be used to trample artistic license. That said, it may be time to recalibrate what we think of as the balance between privacy rights and the freedom of expression to account for the fact that the internet allows us to learn more about each other than was ever previously possible.

But, unfortunately, some individual members of our society will face significant injuries to their right to be let alone and to their reputations when others create art. And that’s because we see their needs as being outweighed by the need to allow writers, producers, actors and directors to practice their trades and the right of the audience to consume what they produce.

Censorship is more dangerous than deeply hurt feelings.