In the past few years there has been a number of libel claims based on an unfavorable portrayal of a real person in either a television program or motion picture that is based on real life events.  To name a few, there is the currently pending Mossack Fonseca & Co., S.A. et al v. Netflix Inc., which is based on the streamer’s portrayal of Panamanian lawyers in the feature The Laundromat which was about the “Panama Papers” leaked documents scandal, and there is also the currently pending  Fairstein v. Netflix, Ava Duvernay and Attica Lock involving a defamation claim over the portrayal of Linda Fairstein, a former NYC prosecutor, in the Netflix series, When They See Us which was about the trial of the Central Park Five.  There was also the now resolved Green v. Paramount Pictures that was discussed in a previous article, and there was the false light claim made in Olivia De Havilland v. FX Networks LLC over De Havilland’s portrayal in the FX docudrama Feud: Bette and Joan.

These cases are primarily based on a claim of defamation, usually liable which is a written defamation.  In California, libel is defined by Civil Code Section 45 as “a false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye, which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation.”  In most states, libel is defined similarly.  In order to establish libel, a plaintiff will have to establish: that the statements were defamatory; that the statements were published to third parties; that the statements were false; and that it was reasonably understood by the third parties that the statements were about the plaintiff.

In Olivia De Havilland’s lawsuit against FX, she alleged that the producers of Feud portrayed her in a false light.  A false light claim is a type of invasion of privacy, based on publicity that places a person in the public eye in a false light that would be highly offensive to a reasonable person, and where the defendant knew or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the aggrieved person would be placed.  A false light claim is equivalent to a libel claim, and its requirements are the same as a libel claim, including proof of malice.  In order to prevail on her claim, De Havilland had to demonstrate that FX broadcasted statements that were (1) assertions of fact, (2) actually false or create a false impression about her, (3) highly offensive to a reasonable person or defamatory, and because she was a public figure, that the statements, and (4) made with actual malice. In order to establish “actual malice” De Havilland had to prove by “clear and convincing evidence” that the producers of Feud knew the statements at issue were false, or that they had serious doubts about the truth of such statement.

In the opinion rendered by the California Court of Appeals in De Havilland, the court first questioned whether a reasonable viewer would interpret Feud as entirely factual. The court noted that “[v]iewers are generally familiar with dramatized, fact-based movies and miniseries in which scenes, conversations, and even characters are fictionalized and imagined.”  Next, the court concluded that Feud’s depiction of De Havilland is not defamatory nor would it highly offend a reasonable person.  Granting an interview at the Academy Awards, the court noted, is not conduct that would cause offense to reasonable persons.  Further, the court found the producer’s substitution of the word “bitch” for “dragon lady” in a statement actually made by De Havilland was an un-actionable substantial truth – a statement that would not have a different effect on the mind of the reader from that which the truth would have produced.


Lastly, because De Havilland is a public figure, she had to show that the statements made by FX were made with actual malice.  This means more than showing that the statements were not true.  Fiction is by definition untrue and “[p]ublishing a fictitious work about a real person cannot mean the author, by virtue of writing fiction, has acted with actual malice.”  Rather, the court said that “De Havilland must demonstrate that FX either deliberately cast her statements in an equivocal fashion in the hope of insinuating a defamatory import to the [viewer], or that [FX] knew or acted in reckless disregard of whether its words would be interpreted by the average [viewer] as defamatory statements of fact.”  The court concluded that De Havilland would be unable to meet this burden.

The court’s opinion in De Havilland will likely affect the way the court analyzes the claims in Fairstein v. Netflix, Ava Duvernay and Attica Lock, which was recently transferred to the Southern District of New York.  The plaintiff in that case is a former New York City prosecutor who ran the sex crimes unit and oversaw the prosecution of the Central Park Five, five African American men who were wrongly accused and imprisoned for a near fatal rape in Central Park.

Fairstein alleges that she was incorrectly portrayed by actress Felicity Huffman as having a larger role in the five’s fate than was factually accurate.  Fairstein claims she is portrayed “in a false and defamatory manner in nearly every scene in the three episodes in which she appears…” and that such portrayal “cannot be justified as the mere use of artistic license or dramatization.”  The complaint claims that the Series “depict Ms. Fairstein — using her true name — as a racist, unethical villain who is determined to jail innocent children of color at any cost.”

Netflix promoted the Series as being “based on the true story of the [Five],” and that the Series would show people “[t]he truth [they] haven’t heard.”  The producers touted that the Series essentially depicted the “real story,” and that it was based on exhaustive research and interviews.  Also, the producers also indicated that the negative treatment Fairstein in the Series was—like the rest of the narrative—based on fact.  During an interview with Oprah Winfrey, Ms. DuVernay stated that she wanted to hold Ms. Fairstein “accountable” for her actions in prosecuting the Five

Assuming the Southern District of New York adopts a similar approach as the California Court of Appeals in De Havilland, these are the issues they will confront:

  • Would viewers interpret the program as entirely factual? The Producers and Netflix held the Series out as being a truthful work.  As such, it would be difficult for the defendants to argue that the Series is a fictionalized dramatization and all viewers would understand that.
  • In determining actual malice, did the producers deliberately cast Fairstein’s character in an equivocal fashion in the hope of insinuating a defamatory import to the viewer? Did the Producers know or act in reckless disregard of whether its words would be interpreted by the average viewer as defamatory statements of fact?  If the statements made by the Producers end up being false, it would seem that Fairstein was deliberately portrayed in the hope of insinuating a defamatory import to the viewer.

It seems that the lawyers for Netflix are acutely aware that they may be facing these issues once the case recommences in New York.  In their motion to dismiss filed with the transferring court they argued both that the Series is an artistic dramatization of controversial historical events and that Fairstein’s claims run afoul of the First Amendment’s protection for dramatized, opinionative speech.  The lawyers also argue that Fairstein’s claim reflects revisionist history; basically, Netflix argued that Fairstein’s portrayal, while including some flourish, is basically truthful.