It’s enough to chill the blood of screenwriters, directors and producers everywhere – or at least provoke a wince of recognition, whether they are in UK legal jurisdiction or not. In a preliminary ruling, a British judge has ruled that the The Lost King, the film about the discovery in 2012 of Richard III’s remains in a Leicester car park, has a case to answer that it is defamatory of Richard Taylor, a former university official.
The Lost King covers the efforts spearheaded by Philippa Langley (played by Sally Hawkins) to uncover Richard III’s skeleton, and Lee Ingleby plays Taylor, the then deputy registrar of Leicester university. Taylor claims the film shows him “behaving abominably” and shows him taking credit for the discovery for himself and the university.
Taylor’s legal action revives the perennial question: can a film or TV show, even one marketed as only “based on truth”, be defamatory of its characters in the same way as a TV documentary, nonfiction book or newspaper article? Netflix’s hit programme Baby Reindeer, in which a standup comic is stalked by a fan, is currently in a not dissimilar predicament in the US, after it became the subject of legal action from a woman who claims to be the real-life inspiration for the “Martha” character.
It’s a thorny subject, morally as well as legally. A film or TV show may think it has good cause to show a real-life person in a negative light, but dramatising events and human participation in them will always be subject to interpretation – as well as a need to compress months or years of activity into a few hours of screen time.
Different countries and jurisdictions have different rules for establishing defamation, but identifiability is a key issue; film-makers can change the names of their characters, turn them into composites of two or more real people, or add fictional elements (ie, a different job, or nationality, or even gender) but if it’s clear who the person involved is, then trouble may lie ahead. Merely asserting that a film or show is “based on” or “inspired by” a true story is not an automatic get-out, if it is clear who the real-life person is. (If, on the other hand, the person is dead, your worries are at an end; you can say what you like about Hitler, Churchill or Genghis Khan.)
But where does that leave film-makers who want to expose what they consider to be an outrageous issue, employing emotional, heartstring-tugging tactics that more sober treatments won’t or can’t? In cases of clear identifiability, is “drama” a reasonable excuse for putting across a point with more force than the events may actually have happened in real life? Is drama, essentially, a category separate from documentary, in the same way that a newspaper separates reporting from editorial? Ava DuVernay’s mini-series When They See Us shone a spotlight on the prosecution of the Central Park Five, but was sued (in the US) by former assistant district attorney Linda Fairstein for the show’s portrayal of her. One of the outcomes of the legal settlement, which was agreed before it came to trial, was to ensure more prominent placing of a disclaimer that “certain characters, incidents, locations, dialogue, and names are fictionalized for the purposes of dramatization”. In other cases, this may not wash.
A particularly vivid example in the UK is the recent ITV drama Mr Bates vs the Post Office. After years of print and online exposés, TV segments and news items, the show broke open the Horizon scandal in a way nothing had previously managed. Superb acting and a righteous cause were central to its success – but it was also able to draw on copious on-the-record statements made in public inquiries which are eminently defensible in court. Likewise, the Prince Andrew film Scoop reconstructed an already widely disseminated broadcast interview.
Will the Lost King case have a chilling effect on the ability of films and TV shows to take on real-life stories? That remains to be seen, but the proliferation of true-crime and actual-life material which underpins the success of streaming platforms such as Netflix shows no sign of slowing down. All shows and films go through a rigorous legalling process, and have Errors and Omissions insurance to hedge against the risk of their subjects coming back hard. Conversely, if they can overcome the financial risk, those affected in the real world will be on the lookout for ways to achieve compensation if they feel their lives have been scuppered. Some may be right, some may be wrong; that’s for the courts to decide.
