‘Baby Reindeer’: Does the ‘Real Martha’ Have a Case Against Netflix?
“Baby Reindeer,” the Netflix series that has taken the world by storm since dropping last month, boldly opens with the claim that “This is a true story.” (Unlike another Netflix series, “Inventing Anna,” which opens with the title card: “This whole story is completely true. Except for all the parts that are totally made up.”)
“Baby Reindeer” is a brutal account of former comedian Richard Gadd’s life in his twenties as he attempted to conquer the world of entertainment. In the process, he is sexually assaulted by a senior figure in the comedy world and harassed by a stalker he met while working in a pub. The woman who claims to be the real stalker, Fiona Harvey, has now said she intends to take legal action against Gadd and possibly Netflix, though no claims have yet been filed.
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Gadd wrote and starred in the series, which is produced by Clerkenwell Films, playing a fictionalized version of himself called Donny Dunn.
Gadd has also said he fictionalized his stalker, named Martha in the series, telling Variety last month: “I mean there’s certain protections, you can’t just copy somebody else’s life and name and put it onto television.” In the show, Martha, who is played by Jessica Gunning, is depicted as a plus-size brunette with a Scottish accent and a legal background.
After she begins sending him thousands of emails – some of which are featured apparently verbatim in the show – Donny realizes she has previously been accused of stalking by a woman in Scotland. As the stalking intensifies, Martha is also shown sexually assaulting Donny, physically assaulting his girlfriend and even harassing his parents before eventually pleading guilty to harassment in a criminal court.
Within days of the show dropping on the streaming platform internet sleuths rapidly honed in on a real woman, named Fiona Harvey who seemed to be a carbon copy of Martha: a Scottish, plus-size brunette with a legal background who had exchanged a number of tweets with Gadd in the period the show takes place and, it seemed, had once been accused of stalking a woman in Scotland some 15 years earlier.
Last week, after fervent speculation online, Harvey appeared on Piers Morgan’s YouTube show, where she denied stalking Gadd after meeting him in a London pub (although she admitted sending him emails) and told Morgan she plans to take legal action against the writer and possibly Netflix. As of yet, court filings indicate Harvey has not filed any claims in the London High Court but U.K. lawyer Chris Daw KC told Variety he is “building a team of lawyers, to take on Fiona’s case and to look at all potential claims against Richard Gadd, Clerkenwell Films and Netflix.”
“It will take some time to gather all of the evidence and prepare a legal claim, but that process is well underway,” added Daw, who is not yet officially representing Harvey in a legal capacity. “We are actively considering defamation, image rights and all other potential claims, arising from the use of Fiona’s image in ‘Baby Reindeer.’” (Netflix declined to comment; reps for Gadd and Clerkenwell Films did not respond).
The U.K. is notoriously more favorable to libel plaintiffs than the U.S., where the First Amendment protects a broad range of insulting and offensive speech. In the U.K. — where much law is made in the clashes between royals and tabloids — plaintiffs can also pursue invasion of privacy claims or other legal remedies in addition to defamation.
With a legal battle apparently on the horizon, Variety spoke to two U.K. lawyers to discern what claims Harvey could attempt to bring against the show’s creators – and how likely she is to succeed.
How strong would a libel or defamation case be?
Callum Galbraith, head of media disputes at Hamlins, told Variety that if he had a client in Harvey’s position, “You’d immediately be thinking about whether there is a possible libel action that can be brought on the basis that the allegations are untrue and are defamatory insofar as they lower her reputation in the eyes of what other people would think.”
But truth is a defense, so if the producers could show that the disputed allegations are substantively correct, they would prevail. Harvey has alleged, however, that there are major discrepancies between the show and reality.
In the show, Martha is arrested and sentenced to nine months in prison for stalking Gadd’s character. In real life, Harvey has said she was not convicted and was not sent to prison. The Scottish Daily Record reported that she was given a “First Instance Harassment Warning” by the Met Police.
Another discrepancy involves the volume of messages sent by the Martha character. In the show, she sends 40,000 emails as well as voicemails. In real life, Harvey admitted to sending Gadd “a couple” emails — but no more than 10.
In his interview with Variety, Gadd said the show was “emotionally 100% true” but admitted “you can’t do the exact truth, for both legal and artistic reasons.”
If the case is actually brought to trial, it will be up to a judge to decide the disputed facts, and determine if any fictionalization harmed Harvey’s reputation.
“What is portrayed in the material has to lower the reputation of the person,” said John Linneker, a partner specializing in intellectual property at FieldFisher. “And if you’ve got a ton of stuff that’s true — 90% is true and then 10% isn’t — is that defamatory? Because probably the extra 10% isn’t going to make much difference to your reputation.”
Linneker said even if Gadd could prove she had stalked him, depicting her as having been convicted “takes it to another level” if it’s untrue. “That is defamatory, notwithstanding the 40,000 emails,” Linneker said. The same goes for Martha’s assaults on both Gadd and his girlfriend Teri.
What about invasion of privacy or misuse of private information?
Harvey also has a potential claim for invasion of privacy under the Human Rights Act and Data Protection Act. To prevail, Harvey would have to show that her “reasonable expectation of privacy” was infringed, and that her privacy right outweighed Netflix’s interests in telling Gadd’s story.
One of the key points will be whether Gadd sufficiently changed identifying details about “Martha” to prevent her being identified. “There’s probably no hard and fast rule as to what is expected in this in this sort of scenario,” said Galbraith, who is currently representing Prince Harry and Sadie Frost in their claims of unlawful information-gathering against the Daily Mail.
“More often than not changing someone’s name is sufficient,” Galbraith said, although he pointed out that the many similarities between Martha and Harvey amount to “jigsaw identification,” enabling people to work out the connection. (As well as both being Scottish, having a legal background and a reputation for stalking, Harvey also once tweeted at Gadd “my curtains need hung badly” in 2014, an uncommon phrase used by Donny and Martha in the show.)
Linneker said a scene in which Gadd discovers newspaper reports about Martha stalking a barrister’s wife in Scotland could also be damaging: Harvey was reportedly the subject of newspaper reports in the 2000s in which she was accused of stalking a Scottish politician’s wife.
“I think it’s also probably quite significant that although they changed the name, it does appear that the [physical] likeness of the person in the Netflix program and the person in the Piers Morgan program is uncanny,” said Galbraith. “So that’s probably not very helpful from Netflix or Gadd’s perspective.”
Is there a possibility of a copyright claim?
With the real Martha’s real emails shown multiple times throughout the show – her hastily-written sign off “Sent from my iphoen” has since gone viral — Linneker and Galbraith said Harvey could also have a claim for copyright.
“One of the questions would be ‘Is it sufficiently original to attract copyright?’” said Galbraith. “Because some of the messages are relatively short I think the court would probably find that it is. And it’s not obvious what defenses there would be, because it seems that a lot of those messages were published in their entirety. So they couldn’t then argue ‘We haven’t published a substantial part of those messages or those emails’ because they show them on screen.”
In 2022 Meghan Markle sued the Mail on Sunday for copyright infringement after it reproduced chunks of a letter she had written to her father, which he had shared with the newspaper. The court found in her favor. Such a claim would likely fail in the United States, where the concept of “fair use” of copyrighted material is much broader.
Could the case actually go to trial?
Neither Linneker nor Galbraith expect the case to go to trial, as it likely would not be in either side’s interests.
Linneker suggested because of the expense – and the fact that trials are high risk – Netflix would likely want to settle, pointing to Prince Harry as an example. Earlier this year the prince dropped his defamation claim against the Mail on Sunday, despite winning the first stage of it, reportedly leaving him with £750,000 in legal bills, a third of which was the Mail’s costs.
There’s also the Streisand effect of libel litigation. “We advise a lot of people who think they’ve been defamed to keep completely quiet unless it’s something they really are really, really upset about,” Linneker said, explaining that a trial usually gives more oxygen to the very claim someone is saying is untrue.
Then there’s the mental toll a trial can take. “If [Harvey] sued and it ended up in court, she’d have a pretty tough time,” said Linneker, pointing to the often difficult process of cross-examination.
What could the damages be?
It’s difficult to calculate how much Harvey could stand to win if she went to trial, but having effectively outed herself on Piers Morgan could affect the final sum. “I don’t think she’ll be able to claim damages from the point at which she is responsible for people knowing that it is her,” said Galbraith.
Linneker, who said he was “totally riveted” by “Baby Reindeer,” assumed while watching it that the real Martha would have been offered in the region of £20,000 to waive any potential claims in a pre-broadcast settlement. “Because it’s a quite a punchy piece of material to stick your neck out with,” said Linneker. “It would have been an obvious thing for Netflix to do.”
It would also have likely avoided a lengthy legal battle that could now be looming.
Gene Maddaus contributed to this story.
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