Defamation by Docudrama – Inventing Anna

In this episode of The Briefing by the IP Law Blog, Scott Hervey and Josh Escovedo discuss a defamation dispute between Rachel Williams – a victim of con artist Anna Sorokin – and Netflix, over her portrayal in the docudrama “Inventing Anna.”

Watch this episode here.

Show Notes:

Scott: Netflix finds itself mired in yet another defamation and false light lawsuit, this one brought on by its portrayal of Rachel Williams, the Vanity Fair photo editor who’s friendship with Anna Delvey –  who passed herself off as German heiress Anna Sorokin.  Williams’ complaint raises some interesting questions about the portrayal of Williams in the program.  We are going to discuss this lawsuit on the next installment of the Briefing by the IP Law Blog

Scott: Rachel Williiams does not come across well in the Netlix program, Inventing Anna.  Rather, she comes across as a privileged, freeloader, who sponges off of Sorokin and then abandones Sorkin when Sorkin’s real situation comes to life. So, let’s talk about what Williams will have to establish in order to move her claim forward.

Josh:  Williams. brings claims for   defamation and false light.  For her defamation claim Williams 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 of and about herf.  Since Williams is a public figure – she published a story in Vanity Fair and a book about her experiences with Sorkin – she must also prove by “clear and convincing evidence” the statement was made with “actual malice” meaning that the defendant knew the statement was false, or had serious doubts about the truth of the statement. In most states, libel is defined similarly.

Scott: 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.

So, in order for Williams to prevail on both her false light and defamation claims, she would have to demonstrate that her portrayal in Inventing Anna was (1) assertions of fact, (2) actually false or create a false impression about her, (3) are highly offensive to a reasonable person or defamatory, and (4) made with actual malice.

Josh:  Actual malice would be established by showing that Netflix deliberately portrayed Williams in the hope of insinuating a defamatory import to the viewer, or that Williams knew or acted in reckless disregard as to whether her portrayal would be interpreted by the average viewer as a defamatory statement of fact.

Scott: So, let’s take a look at the various portrays of Williams she claims to be actionable.  Williams notes a scene in episode 2 where Sorokin’s friend Neff Davis states or implies that Williams used to be Sorokin’s best friend, but Williams dropped her as a friend because she was

jailed and could not pay for Williams’ social life and clothes.  Williams claims that these scenes are false.   Williams was friends with Sorokin because she liked her, not because Sorokin would pick up the tab, and she did not drop Sorokin as a friend because Sorokin was no longer able to pay for her social life and clothes, but rather because she discovered that Sorokin had made the fraudulent statements and promises which induced her to incur significant liabilities, and that Sorkn was a liar and a con artist.  That Sorokin never bought clothes, shoes, earrings, or a bag as gifts for Williams, who never wore Sorokin’s clothing or accessories and never told

Neff that Sorokin had bought her clothes.  Williams claims that the statements are defamatory because Williams is falsely portrayed as a disloyal and opportunistic friend, a sponger, and a freeloader.

Josh: There are other scenes referenced by Williams which portray Williams as a freeloader or a false friend.  For example, a scene in episode 5 where Williams is portrayed in attempting to convince Sorkin to pay for an expensive hairstyle for Williams and a scene in episode 6 where Williams is portrayed trying to get Sorkin to pay for a more expensive hotel room in Moracco.  Williams claims. Williams claims that this scene is false and never happened.  Williams never tried to get Sorokin to pay for an expensive hair stylist for her, and Sorokin never paid for her hair.  Also, Sorokin made the arrangements with the Hotel herself, and Williams did not make any suggestions to her about the accommodation there.  Williams also takes offense to her being portrayed in the program as not paying for any dinner, drinks or spa outings with Sorkin.  Williams claims that this wrongfully portrays her as a freeloader.  IN the complaint Williams claims that she regularly paid her way.

Scott:  In the complaint Williams also takes issue with a scene in episode 6where Williams is portrayed as abandoning Sorkin in Morocco.  After the scenes depicting the problems with the credit cards at the Hotel and the private museum tour, Williams tells Anna who is alone in her room, drinking heavily and depressed, that she is leaving.  Sorokin begs her not to leave her, but Williams leaves anyway.  According to the complaint, Williams had a pre-existing business meeting in France and Williams had told Sorkin prior to the pair leaving for Morocco, that she (Williams) would be leaving on a certain date and that Williams left Morocco Sorkin was not sad or depressed.  Williams alleges that The statements in these scenes are defamatory because Williams is falsely portrayed as a fair weather friend who abandoned Sorokin when she was alone, depressed and in trouble in Morocco, and needed help and support. These are negative personal traits or attitudes that Williams does not hold.

Josh: Another set of interesting allegations has to do the programs treatment of the charges from Williams and Sorokin’s Morocco trip on Williams’ company credit card.  The program portrays Williams as not being entirely upfront with her employer, Vanity Fair, about the charges.  In fact in the program there is an exchange between Williams and one of her supervisors where Williams is portrayed feigning knowledge of the outstanding charges; essentially Williams is portrayed as lying to her employer.  Williams states that this is a false statement and/or attribution in that she never lied to her employer about this charge, but rather, she voluntarily told her employer that a large personal charge had been placed on her Business Amex and that she accepted responsibility for it.

Scott:  Before the court even gets to the question of whether Williams’ portrayal is defamatory, the court would first have to determine whether her portrayal was substantially true. If the court determines that a statement is substantially true, that’s the end of the defamation and false light claim.  Its only after the court determines that the statement or portrayal is not substantially true that the court will consider whether the statements or portrayals are statements of fact or the dramatized opinion of the producer.

Josh: In deciding whether a statement is substantially true, courts typically compare the language or portrayal with the actual truth to determine whether the truth would have a different effect on the mind of the average reader/ viewer.  Taking the allegations in the complaint as true – that Williams did not say or act in the way she is portrayed in the series, I think the court would not find the various complained of portrayals as being substantially true,

Scott: I agree Josh.  Williams’ portrayal in the series was was commented on by a few media outlets.  In an article entitled “Inventing Anna has a brutal vendetta against Rachel Williams – is Netflix bitter she sold her story to HBO?”, the Independent wrote, “Inventing Anna really, really wants us to hate Rachel Williams… Williams features as a character in Inventing Anna, a show which seems hellbent on making her out to be the worst person in the world…The New York Post wrote “Shonda’s most insane move, however, is treating poor Vanity Fair photo editor Rachel Williams like she’s the Wicked Witch of the West. The complaint also alleges that, as a result of Netflix’s portrayal, Williams was subjected to substantial online abuse, negative in-person interactions and negative characterizations in podcasts.  The complaint includes a representative sample but notes that Williams has received thousands of similar abusive messages.  The allegation is that if Williams was not falsely portrayed in this manner, she would not have been subject to this negative treatment by the public.

Josh: If a statement/portrayal is not truthful, then the next question would be whether an average, reasonable viewer, watching the scenes in their original context, would conclude that they are statements of fact and not the dramatized opinion of the producer.  The 9th Cir believes that viewers of this type of programming know that they are “more fiction than fact.” however New York does not go this far.  In Fairstein v. Netflix, the United States District Court for the Southern District of New York declined to conclude that viewers of When They See Us would assume the program is “more fiction than fact” but rather that the dialogue in the dramatization “is not a verbatim recounting of the real-life participants and is intended to capture the essence of their words and deeds.”

Scott:  According to the Fairstein court, the key to determining the difference between non-actionable statements of opinion and actionable statements of facts (or an opinion that implies that it is based upon facts which justify the opinion) is the implication that the statement is based on undisclosed facts known to the defendants.  So, is. Williams’ portrayal the unactionable, dramatized opinion of the producers, or is her portrayal based on, or does it appear to the average, reasonable viewer to be based on undisclosed facts known to the producers?

Josh: The producers include a very conspicuous disclaimer at the beginning of every episode.  The disclaimer generally states “This story is completely true, except for all the parts that are total bullshit or totally made up.” Usually disclaimers give the producer some room to claim that a work or parts of a work are dramatied opinions.  However, as the United States District Court for the Central District of California pointed out in Gaprindashvili (Ga prin dash vill) v. Netflix (the Queens Gambit defamation suit), the presence of a disclaimer is a “factor in the analysis, albeit not a dispositive one.”

Scott: That’s right Josh, in that case the court found that Gaprindashvili ((Ga prin dash vill) had plead sufficient facts to support her defamation claim and the court reminded Netflix that works of fiction are not immune from defamation suits if they disparage real people.

Josh: The distinction between fact and opinion is an issue of law for the courts, and the determination will be based on the court’s assessment of how the statement would be understood by the average person exposed to the statement in its full context.  I  think it’s possible that the court will find that as to some of the depictions, especially the scenes in which Williams is portrayed as a less than truthful and forthcoming employee of Vanity Faire, the average viewer would not have a reason to conclude that such actions reflect a dramatized opinion of the filmmakers and such viewer could fairly conclude that the depiction was based on undisclosed facts known to the defendants.

Scott: Let’s look at the remaining elements as I think they somewhat run together – actually false or create a false impression about her, (3) are highly offensive to a reasonable person or defamatory, and (4) made with actual malice.  I think the media stories on the negative depiction of Williams and the evidence of the hatred being aimed at her online establish that a false impression was made and that this false impression was highly offensive to a reasonable person.  As for actual malice, Williams would have to show that Netflix deliberately portrayed Williams in the hope of insinuating a defamatory import to the viewer, or that Williams knew or acted in reckless disregard as to whether her portrayal would be interpreted by the average viewer as a defamatory statement of fact.

Josh: The Complaint has a separate section devoted entirely to establishing actual malice.  According to the complaint, the production had hired a researcher whos job it was to investigate the Sorokin story and provide the research to the writers.  . Shonda Rhimes, the executive producer and creator of the Series, explained in an interview, “We were telling a story that was based on fact, so needed a document to build an extensive timeline of events, to dig into little things that we weren’t even sure were going to matter. For this particular show, having someone who has read every transcript of the trial, who was paying close attention to every detail in Anna’s life, was really, really important, because we wanted to know what we were thinking. We wanted to know what we were making up; we didn’t want to be making things up just for the sake of it.” She added, “we wanted to intentionally be fictionalizing moments versus just accidentally be fictionalizing them.”

Scott: The complaint also points to the fact that the New York post article upon which the series is based does not contain any negative portrayal of Williams.  Also, the fat that Williams had published the Vanity Fair article and book, My Friend Anna.  Also, it appears that Williams’ attorney sent Netflix two letters during the shows production expressing concern that Williams would be portrayed falsely- Based on the complaint it seems that Netflix was likely on notice.

Netflix doesn’t shy away from a lawsuit and if what they have done in previous indicators I expect Netflix will hit back hard, arguing that the portrayals are substantially true…to the extent they are not the producer’s dramatized opinion.  We will have to see where this case goes