Baby Reindeer and the complex legal issues it raises around defamation, privacy, data, harassment and media regulation

“So, what do you do?

I’m a lawyer…”

sent from my iphone

If you recognise this opening dialogue, you know where this article is going. Baby Reindeer has worldwide viewers of Netflix gripped. Actor Richard Gadd wrote the series and plays himself, bravely sharing his true-life story and his experience of being stalked, harassed and sexually abused. It is truly immersive. At times, it is a dark and harrowing watch but one that has had audiences gripped. Stephen Spielberg had two words to say on the matter, shared on his X platform to over 7m followers: “BABY REINDEER: Holy shit”.

It’s safe to say the seven-part series is a mega hit gone viral. It is Netflix’s most-watched show ever with 87.4 million hours viewed and 22 million viewers in total according to Netflix’s own data to 28 April 2024.

It is of no surprise and must have been contemplated by Netflix, that internet sleuths would be on a mission to uncover and “out” the main characters depicted in the show. The online world has naturally done just that with the identities of the characters being speculated and shared online. It has now gone as far as well-known men in the industry, that I choose not to name in this article despite their names being in the public domain, being in the firing line of alleged responsibility for the heinous crimes suffered by the main character Donny.

This comes with an array of high-stakes legal and personal consequences that can be, quite frankly, horrendous for those facing the wrath of the internet. Being falsely (emphasis on the word false) accused of a sexual crime is not only potentially defamatory, but it can also constitute harassment by publication and be life-changing for the individual and their families who will undoubtedly face a gross invasion of their privacy and alongside that, suffer a reputational crisis. We all know the age-old concept of ‘there’s no smoke without fire’ and some readers will believe that there is truth in super sleuth allegations and conspiracy theory, despite Richard Gadd’s statement: “Please don’t speculate on who any of the real-life people could be. That’s not the point of the show.”

So who are the public out to uncover?

‘Martha’, marvelouslly played by Jessica Gunning, walks into the pub where Donny works claiming she’s a lawyer yet can’t afford a cup of tea. Donny obliges and gives her the tea ‘on the house’ out of sympathy. What follows is a harrowing obsession involving around 40,000 text messages and emails from Martha who stalks, harasses, and abuses Gadd seemingly of the view that they are madly in love and in a consensual relationship. The ‘tag and chase’ scene is a psychologically complex and tough watch. The ‘real’ Martha has been outed online and has spoken to the Scottish Sun, alleging she has received death threats.

‘Darrien’ , the powerful TV writer and industry abuser, is played by Tom Goodman-Hill in a bewitching performance. At the hands of Darrien, Donny is plied with acid, GHB and a cocktail of other drugs and alcohol. These episodes, especially the fourth, undeniably depict the most traumatic and sexually violent scenes of the series.

Legal and personal consequences

A series of men now stand accused by members of the public as being ‘Darrien’. It is troubling to think that innocent people are openly accused of these crimes on an international and viral scale. As a defamation and privacy lawyer, I have seen first-hand the traumatic impact and what goes on behind the scenes for those falsely accused. I hope all involved, including Gadd, are being supported.

Those falsely accused have potential defamation claims. Making statements accusing ‘X’ of being Darrien conveys a defamatory meaning capable of causing serious harm to reputation, including but not limited to, the accused being a violent predator, a sexual offender who has lured, drugged, and groomed an individual without consent. This would be classified as a high defamatory meaning; it is harder to think of an impression more abhorrent (although they do sadly exist). If the allegation is untrue, then the person accused will face severe reputational harm, even if publication is to a limited pool. Here, the circulation pool will be gigantic given the international interest and viral impact of the show.

Those who have made defamatory statements can be sued as authors of the originating statements, and this includes statements made on social media platforms such as X and Facebook. Of further note is that the law of defamation extends to retweets, online shares, and any republication of defamatory statements – those who consider this republication as safe should think twice and be aware of the potential liability in defamation as an editor or publisher of defamatory material. One of the standout images in Baby Reindeer is how Martha signs off her texts and emails as ‘Sent from my iPhone’ - notwithstanding the fact that they were not. Viewers have found that, along with the many iterations of the sign-off, a fascinating insight into a complex set of circumstances. It is worth noting here that a quick retweet from an iPhone can land you in hot water, treading in one of the most complex areas of the law.

The Defamation Act can be found here, for those wishing to take a closer look at the primary legislation in our jurisdiction: Defamation Act 2013 (legislation.gov.uk).

Naturally, alongside a defamation complaint will be a reputational crisis and media storm. For those who face defamatory, abusive, and harassing content online, they can report it (although perhaps a limited practical impact here due to the sheer volume of material). Injunctions could possibly be considered though these are an exceptional form of relief rather than the norm. In the present case, those accused have attempted to control the narrative by issuing and sharing their own statement but only after seemingly being forced to do so.

Statements online can also constitute 'harassment' and 'malicious communications'. The messages do not necessarily have to be violent in nature but would need to have caused alarm, fear or distress. In the present instance, the real-life Martha and those falsely accused have received abuse and death threats which are said to have been reported to the police. For those wishing to take a closer look at the Protection from Harassment Act 1997, the primary legislation can be found here: Protection from Harassment Act 1997 (legislation.gov.uk).

Media Responsibility

There is a fine line to tread here. Baby Reindeer deals with and throws into the spotlight important, sensitive issues pertaining to stalking, harassment, abuse of power, sexual offences and mental health and in a way that organisations such as the BBC would never. Gadd should be commended for bravely sharing his experiences. By bringing those issues to the fore, it could encourage those who have suffered similar experiences to feel less alone, seek help and support and of course, encourage other witnesses or victims of similar stalking and/or sexual abuse to seek the help they deserve.

However, there are questions to be answered about the steps taken by Netflix to protect the identities of the real-life characters. ‘Martha’ is portrayed as a vulnerable person suffering mental health condition. The true identities were known prior to the series being available to stream. It begs the questions: Did Netflix go far enough to conceal the true identities? Was the real Martha given notice of the series prior to it being aired? Was she given a right of reply? An opportunity to take legal advice? I do not know. The production would however have been assessed and ‘cleared’ by legal advisors, as is ordinary custom and practice in media productions of this scale.

If the real-life Martha was not given any notice, it begs the question should she have been notified? She could have taken steps to mitigate risks to her and to protect their personal safety by suspending or removing their social media accounts, taking down their profile pictures and removing those tweets aired on Baby Reindeer that helped link online sleuths to her alleged true identity.

What steps could be taken in future to mitigate risks of false accusations? Perhaps a statement at the end of the episode? Urge viewers not to uncover the characters? Signpost viewers to the proper channels to report crime? Issue a warning that making accusations could constitute defamation?

From a regulatory perspective, OFCOM regulates broadcasters and online streamers such as BBC, ITV, Amazon Prime Video, Disney+ and other streaming services covered by statutory rules enforced by OFCOM. It does not regulate Netflix. Netflix is regulated in Europe by Commissariat voor de Media. Given the scale of this series and extraordinary viewing figures, it would be interesting to hear their and OFCOM’s views on the issues that have arisen post Baby Reindeer, along with any steps they think appropriate to mitigate legal and personal risks, and what safeguarding measures might be appropriate in future.

The Media Bill has had the 2^nd reading and will proceed to the Committee stage on 8 May 2024. Will the sponsoring Department of Culture, Media and Sport consider some of the issues arising from Baby Reindeer? Possibly, as the draft remit extends to the regulation of streaming service providers with Netflix stating openly that ‘it consistently supported the introduction of the Media Bill, and proposals to bring our service under OFCOM’s jurisdiction in the UK’.

With litigation being threatened by the real-life Martha and defamation being at the forefront of the statement issued by the falsely accused ‘Darrien’ it will be interesting to see what follows from a legal perspective. Who knows, perhaps a Netflix documentary in the making about consequential trials.

I could go on about legal and personal implications; there are many complex legal issues intertwined about defamation, privacy, data, harassment and media regulation, but there’s only one way I want to conclude this article: by sharing some links for those impacted by some of the issues raised in Baby Reindeer – which I hyperlink below.

• Report a stalker - GOV.UK (www.gov.uk)
• Report a rape or sexual assault - GOV.UK (www.gov.uk)
• Victim support for women: P2063_06-Rape-and-sexual-assault_women-leaflet-PMS-268-12042021.pdf (victimsupport.org.uk)
• Victim support for men: P2064_05-Rape-and-sexual-assault_men-leaflet-PMS-312.pdf (victimsupport.org.uk)
• MIND: https://www.mind.org.uk/need-urgent-help/using-this-tool/

About Rachael
Rachael is an experienced disputes lawyer across sport, media, and entertainment with a specialist practice in defamation, privacy, media crisis, and reputation management, which she has handled at the highest level for newsworthy clients against national and international media outlets.