Issue 302: 2021 11 25: Defamation

25 November 2021

Defamation

The Netflix suits

By Robert Kilconner

“Inevitable” you might certainly think if you read Oliver Moody’s article in The Times on Monday. Netflix sued for naming the late Stig Engstrom as the assassin of Swedish Prime Minister Olof Palme in 1986. That was the main story but the article drew attention to a number of other cases where the media giant is being sued for defamation in its dramas. The film The Queen’s Gambit is being attacked by a female chess grandmaster who suggests that it misrepresents her. An American prosecutor in another case is suing on the basis that she is wrongly represented as racist and unethical.  The Shaw Sheet has no insight as to the merits of these cases but they do raise a general question of how far dramatists should be allowed to go in the pursuit of their art and how the law should control them.

Take The Crown, the recent series on the Queen, for example. It made excellent television and a large number of people enjoyed it but, unless the research was unnaturally perfect, there must be those who were unfairly traduced. It would be impossible to make that sort of drama without getting things wrong. Without flights of the imagination it would be a mere documentary.

In that particular case, matters were complicated by the fact that many of those on whom the plot depended were Royal and that generally speaking the Royal Family does not comment on programs of this sort but there was something uncomfortable about watching it. You felt that you were absorbing as entertainment something which must inevitably be a distortion of the truth and would inevitably form the basis of future judgements – it all felt rather dirty, really.

That isn’t to say that all programs about living people are unfair. The play and film King Charles III for example may have irritated the Prince of Wales (I don’t know if it did actually, the only comment received from Clarence House was that actor wore his clothes slightly differently from the real prince – something which was quickly put right) but with the action in the future there was no danger of anyone believing it to be fact. Fair enough from the defamation point of view, but as soon as we turn to dramas about the past there is bound to be misrepresentation. How excusable is this in the interest of art?

The position in the UK is different from that in Sweden in that you cannot libel someone who is dead. That means you can publish falsehoods about the departed with impunity. If you live in York you will inevitably believe that Shakespeare wickedly traduced that great and good man Richard III, a compulsory delusion in that part of the country. Nonetheless even if Shakespeare was still alive there would be no question of an action by Richard III’s successors because Richard is safely buried under Leicester Cathedral.

Drawing the lines in this area is a matter of reconciling two different rights. The first is that of a person not to be unfairly slandered. The second is that of the arts industry to write drama about the past which goes beyond the arid ground of the documentary. Limiting the right of recourse to living victims seems a sensible course – after all the dead cannot suffer damage and if relatives feel aggrieved they can put out their own version of the story. But clearly living individuals who are defamed should be able to recover.

There is no need to change the law in this area but occasionally the media need a reminder that they must tread a little carefully. Hopefully the present crop of litigation will give them just that.

Cover page image: BKP/Wikimedia/Creative Commons

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