The Memo: Netflix heads to court over over character portrayals

Amy Howe - 12th September 2022

Based on a true story. Deny it all you want, but when those five words pop up on the big screen, you can’t help but lean forward in your seat. Is there any weight behind the phrase, or is it just a marketing ploy used by producers?

Perhaps unsurprisingly, the legal aspect of the whole ‘true story’ idea is a bit of a grey area. In one of the most high-profile legal fallouts of recent months, streaming giant Netflix is facing a defamation lawsuit over its portrayal of former Vanity Fair staffer Rachel DeLoache Williams in its nine-part drama series Inventing Anna. The series portrays Williams in a less than flattering light, prompting (the real) Williams to face a wave of online abuse following the series’ release. In fact, the lawsuit filed on August 29, alleges that the streaming service falsely depicted her as ‘greedy’, ‘snobbish’, ‘cowardly’, and ‘dishonest’, among other choice words.

Each episode in the series kicks off with the same line: “This whole story is completely true. Except for the parts that are completely made up.”

Regardless of the disclaimer, Williams’ attorney has argued that there are serious questions raised by a system where creatives are free to use real people’s names for unpleasant or controversial characters in film and TV. Especially when the depictions are inaccurate. So, what’s the point of having a disclaimer?

Of course, the use of disclaimers isn’t watertight, and they don’t always hold up in court.

On the flip side, Christopher Gabbitas of Keystone Law speaks on the misconception that an individual can hold the rights to their life story: “There is still this idea we have some form of ownership and so are the people who can grant rights. But there is no legal basis for that in English law; no trademark, copyright or intellectual property protection. And in most territories nothing prevents the producer of a drama doing what they want.” He further highlights two clashing clauses within the Human Rights Act of 1998, which Britain is currently tied to: Article 8 protects an individual's right to a private life and correspondence; Article 10 underlines the right to freedom of expression.

This is where English and American law come to a head. While creative freedom is backed by common law and precedent in the UK, any mention of a character by name can be claimed as an invasion of privacy in the US. Authors of books and memoirs are often advised to change characters’ names and not reveal any identifying features, so why is Netflix able to cast spitting images of real people and name them?

This is not the first time Netflix has found itself in hot water over claims of defamation. Its hit miniseries The Queen’s Gambit was under fire from former Soviet chess grandmaster Nona Gaprindashvili who alleged the streaming giant’s portrayal implied her character was not familiar with competing against male counterparts. Former Manhattan prosecutor Linda Fairstein also had qualms over her portrayal in Netflix’s When They See Us, a crime drama series based on the ‘Central Park Five’.