BUSINESS LAW &TAX
JULY 2024 WWW.BUSINESSLIVE.CO.ZA
A REVIEW OF DEVELOPMENTS IN CORPORATE AND TAX LAW
Oh deer, Baby Reindeer raises the question: when •canSeries you say ‘this is a true story’? Lauren Salt ENS popular Netflix show released in April 2024, Baby Reindeer tells the allegedly true story of Scottish comedian Richard Gadd being stalked by an older Scottish woman, Martha. Gadd portrayed himself in the show and the opening of the first episode states: “This is a true story.” Although the real names of the protagonists were changed in the show, it did not take long for internet sleuths and the media to uncover the identity of Martha and her alleged first victim, her previous employer. What ensued were online interviews with the real-life Martha, Fiona Harvey, and her first victim, previous employer Laura Wray, with the latest development being a defamation suit that Harvey has instituted against Netflix. Harvey is claiming damages in the amount of $170m for defamation, intentional infliction of emotional distress, negligence and unauthorised use of her identity and likeness. Wray, a barrister, has threatened a defamation
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claim against Harvey for her statements made about Wray in her recent interview. So what is this all about? In the show, Martha is depicted as a twice-convicted stalker who: ● Was said to have stalked her previous employer’s family (Wray) and a police officer; ● Physically and sexually assaulted Gadd’s character; ● Camped outside Gadd’s character’s home for up to 16 hours a day; and ● Spent more than five years in jail for multiple sentences. Harvey says these things are all untrue and therefore it cannot be a true story. A debate on the facts is playing out in the court of public opinion and will ultimately play out in a US court of law. The questions the Baby Reindeer saga raises are: (i) if the show depicts the truth, whether it would be defamation; and (ii) if there has been embellishment, whether this would detract from any truths that were portrayed in the show. Why this Baby Reindeer saga is important for employers is because, often, employers are faced with the moral, ethical or legal conun-
TWISTED REALITY
The question then arises: but what if it is the truth? There are certain defences to defamation. Once the aggrieved individual has proved that the statement is defamatory and that it was published, the alleged defamer is required to rebut the presumption that their conduct is wrongful and intentional. While there are a number of defences, we will focus on the defence of “truth and in the public interest”.
DEFENCE
Cast member Richard Gadd attends a photo call for the TV series ‘Baby Reindeer’ in Los Angeles, California. /Reuters drum as to whether they can or should disclose harassment or other criminal conduct of employees to the media, other employees or prospective employers and, if so, how they should go about doing it. To understand where the line is drawn on what can be said and what is reasonably defensible from a defamation perspective, it is important to understand our defamation framework. In SA, defamation, which forms part of the law of delict,
is defined as the unlawful publication of a defamatory statement concerning another person. The disclosure of any information to a third
IT IS ACCEPTED THAT DISCLOSING AN EMPLOYEE’S SERIOUS MISCONDUCT TO THIRD PARTIES WOULD BE DEFAMATORY
party that could damage a person’s good name and reputation would be considered defamatory. It is accepted that disclosing an employee’s serious misconduct to third parties would be defamatory given the impact on their reputation. In fact, it is accepted that, even where the disclosure does not directly contain the details of the conduct or its consequences, if it can be reasonably inferred from what is said, this too would be defamatory.
It is lawful to publish a defamatory statement which is true, provided that the publication of the defamatory statement is for the public benefit. The defence of truth and public interest is also commonly referred to as the defence of “justification”. The courts have held that, in this context, the public interest would suffer rather than benefit from any unnecessary reviving of forgotten scandals. However, the commission of recent offences against the law or against society, the courts have held, stands on a different footing. It is generally for the public interest that others who might have any dealings with the guilty individual should be informed of his true character. In the context of disclosing an employee’s conduct to CONTINUED ON PAGE 2