Baby Reindeer, a popular Netflix show released in April 2024, 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 press to uncover the real identity of Martha and her alleged first victim, her previous employer.
What has ensued thereafter has been online interviews with the real-life Martha, Fiona Harvey, and her first victim, previous employer Barrister Laura Wray, with the latest development being a defamation suit that Harvey has instituted against Netflix. Harvey is claiming damages in the amount of USD170 million for defamation, intentional infliction of emotional distress, negligence, and unauthorised use of her identity and likeness. Wray has also threatened a defamation 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, currently, playing out in the court of public opinion and will ultimately play out in a US court of law. The questions that 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 conundrum 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 South Africa, 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 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.
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. Whilst there are a number of defences, we will focus on the defence of "truth and in the public interest".
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 other employees or future employers, there may be moral, ethical or legal duties that the employer is required to consider prior to making the disclosure which will inform whether it is obliged or entitled to disclose the information. Insofar as the publication to the employer's own employees is concerned, the employer may be required to disclose certain information to, for example, ensure the safety of its employees. Insofar as publication to future employers is concerned, a former employer potentially has a duty to inform a prospective employer of the character or conduct of their potential employee. The duty may arise from a legal or contractual duty (under any employment or collective agreement as a result of an industry agreement or as a result of a request for details of the reasons for the employee's termination) or a moral or ethical duty. In this regard, there is no general legal obligation to disclose the misconduct of an employee to a prospective employer. However, a failure to disclose this information or accurate information regarding their conduct may result in the former employer attracting liability for any future harm caused to the future employer.
Consequently, whether the publication of a defamatory statement is for the public benefit will depend on a number of factors, including whether –
- There is a duty to disclose the employee's conduct;
- What is disclosed is true (which is assessed on a balance of probabilities); and
- The timing of the publication impacts the public interest assessment – ie is this a forgotten scandal or is it recent and relevant?
Accordingly, employers may make statements to third parties about the conduct of their employees, provided that they have a valid defence upon which they can rely. When making any disclosures of this nature, employers must be careful not to disseminate the information recklessly. The disclosures must be made to only those who are entitled to receive them and there must be a cognisance of any unintended consequences of the disclosure, such as a breach of confidentiality obligations to any victims. Employers must be careful to balance the competing duties of the employer and the rights of the other employees, the offending employee and the victim(s). In doing so, employers should be mindful that any changes to the facts to protect identities or over-embellishment (intentional or not) may impact whether the statement amounts to the truth on a balance of probabilities.
It is important to remember that even if the statement is true, it may not always be in the public interest. Similarly, if the statement is not entirely true, the aspects of truth may not insulate an employer from a claim of defamation in respect of the untrue statements.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.