The Importance of Truth in Documentary Releases

The subjects of a documentary have dropped their long-standing defamation lawsuit against Netflix and producers. Scott Hervey and Jamie Lincenberg talk about this case on this episode of The Briefing by the IP Law Blog.

Watch this episode on the Weintraub YouTube channel here.

Show notes:

Scott:
As of last week, a longstanding lawsuit against Netflix and producers, Doc Shop Productions, has been dropped. In a previous episode of The Briefing, we discussed the then-current status of the case where seven subjects of the Netflix docuseries “Afflicted” sued Netflix for claims of defamation, fraud and invasion of privacy.  We are going to take a look at this dismissal on this installment of the Briefing by Weintraub Tobin.

I am Scott Hervey of Weintraub Tobin and I am joined today by my colleague, Jamie Lincenberg. Jamie, welcome to The Briefing.

Jamie:
Thank you, Scott. I’m happy to be here.

Scott:
Jamie, can you provide a quick recap on the lawsuit.

Jamie:
Sure.  the seven-part series “Afflicted” explores the world of chronic diseases, following a number of patients and their loved ones suffering from the same. The show casts a skeptical eye on some of the subject’s illnesses and those subjects then brought claims accusing Netflix and the producers for editing the show to make the subjects’ rare illnesses look psychosomatic and alleging that the plaintiffs were “duped by the defendants into participating in a salacious reality television program that questioned the existence of chronic illness and portrayed the plaintiffs as lazy, crazy, hypochondriacs who were deserving of scorn and who in fact have since received scorn and abuse because of the shows false representation.

Scott:
Netflix and the producers fired back – filing an anti-SLAPP motion to quickly block the lawsuits, based on the right to free speech. However, an LA county judge rejected the motion, and the appeals court agreed in a unanimous decision where the judges found that “undisputed facts concerning the plaintiff’s diagnosed medical conditions, when contrasted with the show script excerpts and aired version of “Afflicted” were sufficient to constitute a threshold showing that the defendants could reasonably be understood as falsely implying that the sick plaintiffs were imagining their illnesses due to some psychological condition and that their caregivers were gullible pawns or enablers who had been duped into providing care for persons who did not need it.”

The plaintiff’s attorney called the ruling a “Significant Win” and we discussed in our episode that such a ruling could in fact be a shift in the norm and represent major issues for documentary/non-scripted film and television producers.

Jamie:
Now, almost four years since the initiation of the lawsuit, the case has been dropped. From limited sources, it seems that both sides have agreed to drop the suit, according to a request for dismissal filed on June 6. Details of the deal have not been disclosed, but of course, this is a win for Netflix, and the producers.

Scott:
Of course, Netflix is no stranger to defending itself from accusations of defamation. This is one of many defamation lawsuits that have been brought against not just Netflix, but many studios and producers working in the documentary space. This case addresses a number of issues that are generally always present in documentary industry and highlights important lessons for both producers and subjects of those documentaries.

Jamie:
These issues are present now, more than ever. Given guild strikes halting much of traditional production and the significantly decreased cost of non-scripted content, documentaries, docuseries, and other non-scripted productions are booming and regularly ranked among the most viewed shows on Netflix and other streamers.

Scott:
Despite the dismissal, this case is a cautionary tale for produces in the documentary space.

Jamie:
I agree. This show was controversial from the moment it began streaming in 2018. Dozens of doctors, scientists, artists and writers, including names such as Lena Dunham and Monica Lewinsky, signed an open letter to Netflix a few years back, accusing the producers of the flagrant misrepresentations present in the show.

In looking at the details of the case, it seems that the producers of the show likely used creative tools and journalistic practice to advance a narrative that is not actually supported by fact – from early misrepresentations of their intentions with the show, to showing apparent diagnoses from doctors who had never even examined the subjects.

While we understand the need to produce a compelling documentary production, but I don’t think that can be at the cost of the subjects of those shows and the audience, who are also being misled by a false narrative.

How do you think we reconcile this in the industry? And what is the advice to provide producers and studios as the documentary/non-scripted industry?

Scott:
I think the industry needs to understand that if you obtain a release by deceiving the subject, that release may not stand up under challenge. So despite the fact that the written release signed by the subject says that they could be portrayed in an unflattering manner or even defamed and advises the subject to consult their own attorney, if the producer is not truthful with the participant about the nature of the program, the release may be voided due to fraud which could then expose the producer to a defamation claim.  Now I don’t think that most documentary producers intend to defame a subject, but some producers have a strong sense of the story they are trying to tell and that may result in an unflattering portrayal of a subject.  But truth is always a defense to a defamation claim so the producer should always be prepared to show that the portrayal is true.