Baby Reindeer: it's a fine line between fact and artistic licence - Kirsteen MacDonald

The programme tells the story of Gadd’s ordeal with fictional character Martha, a woman he meets while working in a London pub who then harasses him for two years sending him more than 40,000 emails, along with hundreds of social media messages, letters and voicemails. The series concludes with Martha being tried, convicted and sent to prison for her offences.

As well as securing tens of millions of viewers and becoming a serious contender across a number of categories at this year’s Emmy Awards, Baby Reindeer has also hit the headlines for legal reasons.

Its popularity led some viewers to try to identify the actual figures behind the fictional characters portrayed in the series. This resulted in Scottish woman Fiona Harvey being ‘outed’ as the real-life Martha, creating what she’s called an ‘absolutely horrendous’ situation where she has received online abuse and death threats.

Last month, Harvey went public in an effort to give her account of the story. She admitted to meeting Gadd ‘two or three times’ but denies ever stalking him or sending him more than a few emails containing ‘banter.’ Harvey has referred to the series as ‘defamatory’ claiming Gadd is actually ‘obsessed’ with her.

Neither Gadd nor Netflix has commented on whether Harvey was the inspiration for the character. The streaming channel’s UK policy chief Benjamin King has insisted that ‘every reasonable precaution’ was taken in disguising the real-life identities of the people involved. However, if matters should proceed to court, it would seem that any question over whether Martha was based on Harvey would not be difficult to prove, given how easily Harvey was identified online.

While Gadd has admitted using some artistic licence in parts of the series to create ‘dramatic climaxes,’ each episode of Baby Reindeer opens with an on-screen streamer saying ‘This is a true story’.

Given that no evidence has so far been produced showing any wrongdoing by Harvey or any previous criminal convictions against her name, those words could land Gadd and Netflix in hot water should she pursue a defamation case.

The crux of the matter is whether the facts set out in the programme are substantially true. Defamation involves the communication of false and reputationally damaging allegations.

If the story portrayed in Baby Reindeer is true, any claim for defamation would fail. Should Harvey pursue a defamation action as she has indicated, the onus would be on Netflix to prove that Harvey did send hundreds of thousands of emails to Gadd as well as assault him and receive a prison sentence for stalking him. If Netflix is unable to produce this evidence, then it would likely lose a defamation action as the allegations made are of such a serious nature that Harvey’s reputation is undoubtedly damaged as a result of the programme.

The streaming company is certainly under increasing pressure to confirm its position, with Scottish MP John Nicolson demanding that Netflix clarify what it told a parliamentary committee about the inspiration for its Martha character.

While the finale of this real-life drama is yet to unfold, the ongoing storm around Baby Reindeer highlights the fine line programme-makers must tread between making interesting TV and ensuring ‘true stories’ are sufficiently accurate

Kirsteen MacDonald is founder and director, Mac Media Law