If you are wondering if a person could sue a streaming service for defamation in Australia, this is the article for you. In particular, we're going to be addressing the question of if Fiona Harvey could sue Netflix under Australian and UK law. Harvey claims that the representation of her character in the viral dark comedy 'Baby Reindeer' is false. Let's discuss the Baby Reindeer Defamation scandal gripping the legal world.

The hit show is based on comedian Richard Gadd's real-life experiences with a stalker, named Martha in the programme. However, the series has prompted legal questions around defamation law.

This article explores the legal basis for her potential claims. Additionally, we compare defamation laws in the UK and Australia, highlighting the differences in burden of proof, damages, and defences.

Read our other article on the subject of Defamation concerning Baby Reindeer.

The Basis for Fiona Harvey's Baby Reindeer Defamation Claims
Defamation Law in the UK

In the UK, defamation law is governed by the Defamation Act 2013.

For a defamation claim to succeed, the claimant must prove that the defamatory statement has caused or is likely to cause serious harm to their reputation. For a company, this harm must cause into serious financial loss.

How to prove a defamation claim - the elements

For a defamation claim, you must establish three elements:

Publication: The content must be communicated to at least one other person. In Fiona's case, it was released on Netflix, a platform with millions of potential viewers. Therefore, this condition is fulfilled.

Identification: The statement must refer to the claimant, either explicitly or implicitly. Fiona argues that she has been identified online by viewers of the show.

Defamatory Nature: The statement must lower the claimant in the estimation of right-thinking members of society or cause them to be shunned or avoided. Fiona claims that she has been subject to online abuse and has even received death threats.

Defences to a defamation claim

If these elements are established, the burden would shift to Netflix and Richard Gadd as the defendants. They must prove any available defences, such as:

    The statement/portrayal or story being the truth,
  • The defendant believed it to be true. This is the honest opinion defence.
  • Or the publication of the statement was done so as it was a matter of public interest.

    • Defamation Law in Australia

    Australian defamation law also requires the plaintiff to prove that the publication has caused or is likely to cause serious harm to their reputation. This "serious harm" threshold was introduced in 2021 to align with the UK's Defamation Act 2013.

    The elements of defamation (above) in Australia are similar to the UK (publication, identification, and defamatory nature.) However, in Australia, the burden of proving truth (justification) lies with the defendant. Whereas in the UK, the burden of proving falsity lies with the claimant.

    Differences in Burden of Proof
    UK:

    The claimant must prove that the statement is defamatory and has caused serious harm. The burden then shifts to the defendant to prove any defences, such as truth or honest opinion.

    Australia:

    In Australia, the plaintiff must prove that the publication has caused or is likely to cause serious harm to their reputation. The burden of proving truth (justification) lies with the defendant.

    Potential Damages for defamation
    UK:

    General Damages: Compensation for harm to reputation, distresFs, and humiliation.

    Aggravated Damages: Awarded if the defendant acted maliciously or recklessly.

    Special Damages: Compensation for specific financial losses directly attributable to the defamation.

    Exemplary (Punitive) Damages: Rarely awarded, intended to punish the defendant and deter similar conduct.

    Australia:

    General Damages: Similar to the UK, covering harm to reputation and distress.

    Aggravated Damages: Awarded for malicious or reckless conduct by the defendant.

    Special Damages: Compensation for specific financial losses.

    Exemplary Damages: Also rare, intended to punish and deter.

    Defences to Defamation
    UK:

    Truth: The defendant must prove that the statement is substantially true.

    Honest Opinion: The statement must be a genuine opinion based on facts that existed at the time of publication.

    Public Interest: The defendant must show that the statement was on a matter of public interest and that they reasonably believed that publishing the statement was in the public interest.

    Australia:

    Truth: The defendant must prove that the defamatory imputations are true.

    Honest Opinion: The statement must be a genuine opinion based on facts.

    Public Interest: The defendant must show that the publication was in the public interest and that they reasonably believed it was so.

    Fiona Harvey's Potential Baby Reindeer Defamation Claims

    Fiona Harvey alleges that "Baby Reindeer" portrays her inaccurately. She says it shows her defamatorily as a convicted stalker. As a result of the show, she claims she has received death threats and online abuse.

    Her potential defamation claim would need to establish the following:

    Publication: The show has been widely disseminated on Netflix, satisfying the requirement of publication to third parties.

    Identification: Although her name is not mentioned, Harvey argues that she can be identified through the similarities between her and the character Martha.

    Defamatory Nature and Serious Harm: She claims that the portrayal has caused serious harm to her reputation, meeting the "serious harm" threshold.

    If successful, Harvey could claim general, aggravated, special, and possibly exemplary damages. Additionally, she could seek injunctions and public apologies to mitigate the harm caused by the defamatory statements.

    So could Fiona Harvey sue Netflix for Baby Reindeer Defamation?

    The legal controversy surrounding "Baby Reindeer" highlights the complexities of defamation law in both the UK and Australia.

    While both jurisdictions require plaintiffs to establish the defamatory nature of the publication and its reference to them, Australian law places a higher initial burden on plaintiffs by requiring them to prove serious harm to reputation.

    Additionally, the burden of proving truth (justification) differs between the two countries. As Fiona Harvey considers her legal options, the case underscores the importance of balancing freedom of expression with the protection of individual reputations in the digital age.

    Need advice for a defamation matter?

    O'Brien Criminal and Civil Solicitors represents clients for defamation claims, as well as defending clients who are defendants in defamation claims. In certain circumstances, we can take these cases on a No-Win, No-Fee cost arrangement.

Ms Nicole Byrne
O'Brien Criminal & Civil Solicitors
Level 4
219 Castlereagh Street
Sydney
NSW
2000
AUSTRALIA
Tel: 29261 4281
URL: obriensolicitors.com.au

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