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July 23, 2024
What do Baby Reindeer and Inventing Anna have in common? Sure, both are miniseries on Netflix. More interestingly, though, and more pertinent to this blog (since I’m not Roger Ebert), both are subjects of defamation lawsuits against the streaming giant. Nor is either action the first; I previously wrote about Linda Fairstein’s defamation lawsuit against Netflix over how she was portrayed in When They See Us. (That case settled in early June.)
These two current cases touch on slightly different aspects of defamation law. Inventing Anna tells the “based on a true story” of con artist Anna Sorokin, who posed as an heiress and defrauded a variety of New York institutions and individuals out of somewhere around $275,000. In addition to the protagonist, the series portrays several of her real life friends, including Rachel DeLoache Williams, the plaintiff in the lawsuit. Williams claims the series’ version of her is false and defamatory, especially in scenes showing her character abandoning a depressed Sorokin in Morocco and thus painting her as a “disloyal” and “dishonest” villain (instead of a victim who was defrauded by Sorokin to the tune of $62K).
Netflix sought to dismiss the lawsuit on grounds the allegedly defamatory statements were substantially true or were not defamatory. It argued that the show’s creators have a “literary license” to give their interpretation of events, and the characterization of Williams was an opinion, protected by the First Amendment from defamation claims.
The District Court did not see things this way and in March of this year it denied the motion finding that, at the very least, some portions of Netflix’s portrayal of Williams were false and capable of a defamatory interpretation. Specifically, the Court concluded that the issue of whether Sorokin was actually distraught in Morocco, or if that was an invention of the producers, is a question of fact that can be proven true or false. (To oversimplify things a bit, only false statements of fact can serve as a basis for a claim of defamation.) “Whether Sorokin was in a troubled state and Williams left her at that point can be proven true or false,” the judge wrote. The Court further concluded that showing the Williams character ditching a friend when she was depressed could indeed leave viewers with a negative view of the real Williams, and thus serve as the basis for a defamation claim. The case is proceeding.
In contrast, the Baby Reindeer case will focus on the question of whether the series’ portrayal of the character Martha is “of and concerning” a real-life person — the plaintiff, Fiona Harvey.
Baby Reindeer, which begins with the words “this is a true story,” was written by Richard Gadd, who also plays central character Donny Dunn, a not very funny wannabe comedian. It’s a fictionalized version of Gadd’s own life, and part of Donny’s saga involves being stalked by a character named Martha, which Gadd drew off a real experience.
According to the lawsuit, filed in early June, Harvey claims Gadd based Martha on her and cites several similarities between real life and fiction, including that both Martha and Harvey are Scottish lawyers of about the same age who live in London. The suit also claims that Harvey bears an “uncanny resemblance to ‘Martha’” (or at least the actress who plays the character), and “‘Martha’s’ accent, manner of speaking and cadence, is indistinguishable . . .” from Harvey’s.
Moreover, one plot point in Baby Reindeer (I’m trying to avoid spoilers as the show has a lot of twists and turns that would sound ridiculous if you haven’t watched it) mirrors something that Harvey tweeted at Gadd in 2014. Because of these similarities, according to the Complaint, within days of the series airing Internet sleuths determined she was the basis for Martha and began subjecting her to social media vitriol. “As a result of [Netflix’s] lies, malfeasance and utterly reckless misconduct, Harvey’s life had been ruined,” the suit states.
Harvey claims she was defamed by Netflix because Baby Reindeer portrays Martha as “a twice convicted criminal” who spent five years in prison for stalking people, as well as physically and sexually assaulting Donny. Harvey says she has never been convicted of any crime and did not attack the real-life Gadd.
The interesting issue here is that relevant case law doesn’t include, as a test, whether a fictional character can have their real-life basis be identified by Internet sleuths. Rather, the inquiry is generally whether a person who knows the plaintiff would reasonably conclude that the plaintiff was the fictional character, or in this case, whether friends and acquaintances of Harvey would link her with Martha. Netflix has been pretty adamant that it took steps to disguise the identity of the real Martha. Since there are numerous elements in the Martha character’s storyline that are clearly not connected to anything in Harvey’s real life, it seems very possible that the real Martha is someone other than Harvey. But the Internet has spoken, and that’s enough for Harvey to sue Netflix for $170 million.
We’ll have to see how all this pans out; it should make for pretty good legal viewing (although nowhere near as popular as Baby Reindeer itself, which is set to become Netflix’s most-streamed show ever).
One final note: Some people have asked me if I think there’s something wrong with Netflix’s legal vetting of shows. The answer: maybe, but let’s keep in mind that Netflix produces A LOT OF CONTENT, and obviously most of it isn’t causing trouble. That said, it seems like the streaming behemoth should start to exercise a bit more caution when greenlighting these series based on real stories, because there is a lot of money at stake, the Internet is rife with people looking to dig up the “truth,” and someone, somewhere, may very well cry defamation.
April 30, 2024
Lately, I’ve had privacy on my mind. It’s a little personal. After all, it feels like every 30 seconds I’m clicking on or looking at something that wants a piece of my data. And privacy is at the heart of the legislation that just passed which, because of national security concerns, would either effectively ban TikTok in the United States or force the Chinese company that owns it to divest. It’s also central to the book I’m currently reading, Your Face Belongs to Us, which exposes the efforts of a stealth startup to create an enormous database of faces for use by police departments across the United States. My skin is crawling.
Nor does the grossness stop there. Heard of “sharenting”? It’s a mashup of “sharing” and “parenting” that refers to what happens when parents put their kids lives online — often, for profit. A few weeks ago I got sucked into the rabbit hole of Utah “momfluencer” Ruby Franke and her 8 Passengers YouTube channel. That channel documented the life of her family of six children with a focus on parenting advice within her Mormon faith. I’ll spare you the details but suffice it to say that Franke has since pleaded guilty to four counts of aggravated child abuse and is serving time.
Did her children ever want to be part of her YouTube sensation? Does it even matter?
The right of publicity, which I’ve written about in the past (see here and here), including its relationship to AI, is supposed to serve as a kind of limitation. Simply put, the right of publicity is a form of intellectual property protection that prevents the unauthorized use of a person’s name, likeness, photograph, etc. for commercial benefit. However, there’s a big limitation here. The First Amendment, as currently interpreted, limits the right of publicity to speech that is purely commercial. This means that, because Franke was documenting her family’s life, even if there was clearly a financial benefit, she was free to proceed without fear of a right of publicity claim. (She was also free to proceed because as a parent, she could consent for her children to appear on YouTube whether they liked it or not.)
While I don’t have a lot of faith that this interpretation of the First Amendment is going to change anytime soon, my general state of alarm over privacy did make me think about other times where questions about the public dissemination of private information have come up and the relationship of these issues to technology.
Notably, in 1890 Samuel Warren and Louis Brandeis (who went on to become a Supreme Court justice and have a university named for him) authored an article called “The Right to Privacy.” This article, which is frequently cited as the origin of the right of publicity, was prompted by the invention of the Eastman Kodak camera. As Warren and Brandeis noted, “[i]nstantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life; and numerous mechanical devices threaten to make good the prediction that ‘what is whispered in the closet shall be proclaimed from the house-tops.’”
Interestingly, besides the right of publicity, the article discusses three other possible causes of action to protect privacy — false light, public disclosure of private facts, and invasion of privacy. These rights are premised on something that we seem to have lost along the way: the idea that each of us has a right to maintain control over certain information as private. Or, as Warren and Brandeis put it, “the more general right of the individual to be let alone.” They premise this right “not on the principle of private property, but that of an inviolate personality.” In particular, they call attention to the fact that there’s a difference between expressing thoughts or ideas — the “conscious products of labor” — and “often involuntary expression… in the ordinary conduct of life.”
It’s hard to imagine any phrase from the 19th century hitting home so hard today. In an era dominated by social media, AI deepfakes, cameras everywhere, and a relentless stream of true crime documentaries and podcasts made without the need for permission from victims or their families, it seems like there are no boundaries between what is private and what is public anymore.
I don’t have any great answers here other than to say that it seems like it’s time to revisit the idea that Warren and Brandeis so eloquently promoted: that each person has a right to be left alone unless they say otherwise, regardless of their age or their celebrity.
October 10, 2023
In 1989, five Black and Latinx teenagers were prosecuted for and ultimately convicted of assaulting and raping a jogger in New York’s Central Park. The case brought the word “wilding” into the lexicon and drew national attention.
This attention stemmed, in part, from the defendants’ youth, race, the lack of DNA evidence tying any of them to the assault, and inconsistencies in the defendant’s confessions — confessions eventually proved to be false. Because of these issues and the eventual confession of a serial rapist who took sole responsibility for the crime, the convictions of the youths — who became known as the “Central Park Five” — were vacated.
For many, both in New York and beyond, this case symbolized New York at its worst and the wrongful use of the criminal justice system to target Black and Latinx men.
This case is now in the news once again. This time it is because of a defamation case brought by Linda Fairstein, the former head of the Sex Crimes Unit of the Manhattan District Attorney’s Office, who was involved in the prosecution of the Central Park Five. Fairstein, who is now a successful mystery writer, is suing Netflix, writer/director Ava DuVernay, and writer Attica Locke for defamation over how she was portrayed in the miniseries When They See Us.
When They See Us, is a four-part series dramatizing the Central Park Five’s experiences from their arrests through their release from prison. It portrays the criminal justice system as the villain and Fairstein’s character (played by Felicity Huffman) as the primary representative of the criminal justice system. Fairstein is shown as determined to see the five teenagers convicted regardless of inconsistencies pointing to their innocence. According to a recent decision in the Southern District of New York, which denied the defendants’ motion for summary judgment, “the character is portrayed as personally responsible for orchestrating nearly every aspect of the investigation of the [Central Park] Five.”
Because of the judge’s recent decision, unless the case settles, it will go to trial over five allegedly defamatory scenes. (In 2021, the judge ruled that seven of the scenes Fairstein claimed were defamatory were not actionable.) Fairstein alleges each of these scenes portrays her as responsible for far more of the arrest and prosecution of the Central Park Five than she actually was. For example, one of the allegedly defamatory scenes could be understood to imply that Fairstein improperly delayed providing DNA evidence to the defense, while another shows her instructing the police to round up suspects in Harlem and harshly interrogate them. Fairstein maintains that she didn’t do those things and there’s nothing in the historical record to support the series’ claim that she did have that authority.
It’s pretty clear that there were some very, very serious problems with the prosecution of the Central Park Five, that innocent men lost years of their lives in prison, that Fairstein played a role in their fate and, that to this day, she seems to be unrepentant, even continuing to indicate skepticism as to their innocence.
Nonetheless, the judge said there was evidence that “by opting to portray Fairstein as the series villain who was intended to embody the perceived injustices of a broader system,” When They See Us “reverse-engineered plot points to attribute actions, responsibilities and viewpoints to Fairstein that were not hers” and were not reflected in “the substantial body of research materials” assembled in preparing the series. Netflix and its co-defendants, for their part, argue that the filmmakers are allowed to use some dramatic license in creating a portrayal of Fairstein that was substantially true.
Some important things to keep in mind about this case and fictional stories based on real events:
- Even in dramatizations, you can’t ascribe things to real people that aren’t supported by the facts. Here, there will be an issue over whether the series’ portrayal of Fairstein is at least somewhat supported by the factual record. There will be a particular focus on the dissent of and comments by a judge on New York’s highest court who stated that Fairstein “deliberately engineered” a confession from one of the Central Park Five by not allowing a parent to be present.
- Fairstein is a public figure and, as such, to prevail at trial she will have to prove not only that certain statements in When They See Us were false, but that the statements were made with “actual malice.” The phrase “actual malice” is confusing because, for the most part, ill will is only a small part of the analysis. As used in the context of defamation, actual malice means that Fairstein will have to prove by clear and convincing evidence that the producers, writers, and director had subjective doubts about whether the statements at issue were false or probably false or that they created them with reckless disregard for whether they were true or not.
- The inclusion of a disclaimer is not a free pass. Here, Defendants did include a disclaimer stating that various elements had “been fictionalized for purposes of dramatization.” However, that disclaimer appeared only briefly at the end of each episode. This has to be contested against promotions for the series which included the statements “The story you know is the lie they told you” and “Based on the true story of The Central Park Five.”
However the case is resolved, it is clear that really, there are no winners here.
February 7, 2023
In 2021, the U.S. Court of Appeals for the Third Circuit held in Hepp v. Facebook that Facebook, Reddit, and others were not shielded by section 230 of the Communications Decency Act (“CDA”) from right of privacy and publicity claims brought by Philadelphia news anchor Karen Hepp. In that case, Hepp’s image was used without her permission in ads for a dating service on the social media platform. The Court concluded that, although Defendants might otherwise have immunity from liability under section 230, Plaintiff’s right of publicity claims fell within an exception in the CDA for “intellectual property” claims.
Looking at New York law, a new decision in the Southern District of New York has reached the opposite conclusion.
The recent case — Ratermann v. Pierre Fabre USA, Inc., et al., No. 22 Civ. 325 (S.D.N.Y.) — was brought by model Patty Ratermann. She granted a license to her image to video marketing company QuickFrame, Inc. This license limited the use of her image to Instagram.
QuickFrame licensed her image to Pierre Fabre, the company behind the skincare brand Avène. Despite the fact that the license provided that Ratermann’s image could only be used on Instagram, Raterman discovered it was being used to promote Avène products on Pierre Fabre’s website, as well as on the websites of Amazon, Walmart, and Ulta.
Ratermann sued, claiming, among other things, that these advertisements exceeded the scope of QuickFrame’s license and violated her rights under New York Civil Rights Law sections 50 and 51.
These sections codify New York’s law on the right of publicity. They protect against the unauthorized exploitation of personal traits for advertising. More specifically, section 50 makes it a misdemeanor for a person or corporation to use “for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without having first obtained the written consent of such person” and section 51 provides civil remedies for violations of section 50.
The Defendants moved to dismiss with Amazon, Walmart, and Ulta claiming immunity under section 230 of the CDA, which protects a provider or user of an “interactive computer service” from being liable for information provided by another. The purpose here is to protect websites that host third-party content from liability, allowing them to function without facing potentially crushing legal liability for the acts of third-parties. In layman’s terms, Amazon, Walmart, and Ulta argued that because Pierre Fabre created the ads with Ratermann’s unlicensed image, under section 230 they were not responsible for the content.
In response, Ratermann argued her claims under sections 50 and 51 fell within the exception for “intellectual property” relied on by the Third Circuit in Hepp. The Southern District of New York rejected Ratermann’s argument that sections 50 and 51 provide trademark-like protection. Instead, it concluded that these sections protect privacy, not property. Based on this, the Court dismissed Plaintiff’s claims against Amazon, Walmart, and Ulta.
While this conclusion certainly lines up with the purpose of section 230, there are some problems with the Court’s logic.
For starters, if, as the Court concluded, Plaintiff’s claims under N.Y. Civil Rights Law sections 50 and 51 are purely intended to enable people to protect their privacy from unwanted intrusion, why did the New York State Legislature recently extend the protections of these sections to dead people who presumably don’t have any interest in privacy?
Moreover, there is certainly an element of intellectual property protection to claims under sections 50 and 51. Just like copyright, trademark or patent law, claims under these sections are intended to prevent third-parties from cashing in or taking the value associated with a person’s name or image. Consistent with that, Plaintiff — a model — is seeking to recover her losses or defendants’ profits associated with the unauthorized use of her image. She’s not suing because someone grabbed an unflattering picture of her with a long lens. The Court, however, brushed away these concerns by claiming that such rights exist only in the common law right of publicity (which New York does not recognize).
While Ratermann’s team is considering an appeal in the matter against the online retailers, their breach of contract claim against QuickFrame and right of publicity claims against Pierre Fabre continue to move forward.
December 13, 2022
Every time we post personal data on a social media platform, we’re making information about ourselves public. But really, what seems like public property that anyone can access, in fact, sometimes becomes someone else’s private property — as an interesting, ongoing case about who controls such data illustrates.
hiQ is a self-styled “people analytics” company. Its business model involves scraping LinkedIn users’ public profiles, analyzing the data with a proprietary algorithm, and selling the results to employers looking to retain and train employees.
Unfortunately for hiQ, such data scraping is prohibited by LinkedIn’s User Agreement.
In May 2017, LinkedIn sent hiQ a cease and desist letter. It cited the violation of its User Agreement and demanded that hiQ stop its use of LinkedIn users’ public profile data. In response, hiQ filed suit in the Northern District of California and sought an injunction barring LinkedIn from claiming that hiQ was violating the Computer Fraud and Abuse Act (CFAA), the Digital Millennium Copyright Act, and California law.
The District Court granted hiQ’s injunction in August 2017.
In reaching this conclusion, the District Court held that hiQ’s interest in the survival of its business, which was threatened by LinkedIn’s demand that it cease and desist from scraping public LinkedIn data, was greater than LinkedIn’s interest in protecting the public profiles of its users. The Court also held that the public interest favored hiQ because LinkedIn was, in effect, seeking to eliminate hiQ as a competitor and establish a monopoly. (At the time it sent the cease and desist, LinkedIn was exploring providing services similar to hiQ’s.)
LinkedIn appealed the injunction to the 9th Circuit, which affirmed the lower court’s ruling in favor of hiQ. LinkedIn next appealed to the U.S. Supreme Court, which vacated the 9th Circuit’s ruling and remanded the case. In April 2022, the 9th Circuit again affirmed the District Court’s preliminary injunction in favor of hiQ.
While the issue of the injunction went to the 9th Circuit (twice) and SCOTUS (once), the parties were busy conducting discovery. At the end of discovery, each party filed a motion for summary judgment and the District Court ruled on these motions in November.
On the whole, despite winning the initial battle over the injunction and the fact that it did score a few wins at the summary judgment stage, it’s safe to say that hiQ definitely came out on the losing end of things. In large part this is because LinkedIn’s cease and desist seems to have quite a chilling effect; it caused hiQ to lose funding and employees.
hiQ’s losses didn’t end there. The District Court found that hiQ agreed to the terms of LinkedIn’s User Agreement, when it ran ads and created accounts on LinkedIn and, contrary to hiQ’s position, the User Agreement unambiguously bars scraping.
However, the Court did allow hiQ to proceed to trial on the issue of whether LinkedIn’s claims under the CFAA are barred by a two-year statute of limitation because there was evidence that LinkedIn employees were aware of hiQ’s activities for more than two years before it filed suit in 2017. At trial, a jury will have to determine if these employees’ knowledge can be imputed to LinkedIn.
Despite hiQ being allowed to proceed to trial, overall LinkedIn came out ahead because, regardless of the outcome of this case, it effectively seems to have not only disposed of any competition from hiQ, but also effectively limited the ability of other entities that might try to monetize information that we, the public, freely provide to LinkedIn.
