“If Fiona Harvey is identifiable as the individual being portrayed, then Netflix will be responsible for how she is portrayed regardless of whether what is being alleged about her is true or false,” he adds. “And, provided the portrayal of Fiona Harvey is false and defamatory and there is no defence of truth available to Netflix or any other defence they can rely on, she can sue for defamation.” The has contacted both Netflix and Clerkenwell Films for comment, but they have not responded.
Issues of regulation
One issue that this whole affair has shone a light on is the issue of regulation, and what standards TV shows are held to on different platforms. Baby Reindeer is a British-produced show and if it was on a British broadcasting network, it would have to abide by the Broadcasting Code of conduct and ethics, which is overseen by the communication regulator, Ofcom. As Netflix is based in the Netherlands, instead it is under the jurisdiction of the Dutch Commissariaat voor de Media. In an interview with The Times, Doctor Who showrunner Russell T Davies suggested that the would have been “much stricter” in disguising the real-life identities of the characters: “Compliance and editorial policy drives us mad here but I sleep at night.”
However, the regulations for streaming platforms could tighten up soon, since a new media bill is current passing through the UK parliament that would see Netflix et al be subject to the same scrutiny from Ofcom as other UK broadcasters, from 2026. Under this new bill, reports Deadline, streamers could soon be “fined up to £250,000 ($308,000) or restricted in the UK entirely if they break rules around harmful material that have applied to the public broadcasters for decades”.
What further complicates this particular case is the definitive caption “this is a true story” which flashes up on screen at the start of the first episode of Baby Reindeer. Industry practice around true-life stories adapted into drama is often to claim “the following is based on true events” or “inspired by true events”. Netflix recently played around with this standard again with 2022’s Inventing Anna, a dramatisation of the story of “fake heiress” Anna Sorokin, by including a knowing caveat: “this whole story is completely true… except for all the parts that are totally made up.”
With Baby Reindeer, however, the streamer states it is a “true story” on screen, even though Gadd himself has explained that he had used some artistic licence in parts and that the truth had been “tweaked slightly to create dramatic climaxes”. Harvey, while saying that Martha is her, and that she was identified as the character, alleges she never stalked Gadd, attacked his girlfriend or did any of the offences that Martha does throughout the series. She also posted on social media claiming again that she was never prosecuted or convicted: “It was 12 years ago and no-one’s found any convictions”.
But, according to Taylor, even if Netflix/Clerkenwell Films did run a disclaimer that the series wasn’t only based on true events, there still would have been an issue with Harvey being so easily identifiable because it would not be clear to the audience what may be true and false. “A disclaimer would not necessarily have covered them,” he says. Indeed in Inventing Anna’s case, despite its on-screen admission that some parts of the story were made up, former Vanity Fair photojournalist Rachel DeLoache Williams, who was featured as a character in the series using her real name, has sued Netflix as she believed she was painted in a negative, “greedy, snobbish… and manipulative” way. As reported in Vulture, her lawyer, Alexander Rufus-Isaacs said: “The devastating damage to her reputation could have been avoided if only Netflix had used a fictitious name and different details.” The case is still active, and in March 2024, Netflix lost the bid to dismiss the lawsuit.
