Documentaries, dramas and defamation
Legal NotesWednesday, December 08, 2021
With Amanda Montague
Narcos, The People vs OJ Simpson, Operat ion Varsity Blues: The College Admissions Scandal and Power are extremely popular documentaries/dramas which aired on TV in the past few years.
These productions are based on the lives of people and events. As streaming services such as Netlfix and networks such as Starz seek to cater to the demand for these documentaries and docuseries relating stories of crime and scandal, defamation claims have been on the rise. Production companies, networks, creators and studios need to be aware of what crosses the thin line of being “defamatory” and how to avoid or mitigate the risk involved in broadcasting potentially defamatory material.
“Defamation” is a civil wrong which occurs when a person publishes material which tends to lower another person's reputation in the minds of right-thinking members of society. Jamaican defamation law is governed by our Defamation Act, 2013 as well as the common law. The principle behind the tort of defamation is that “every man, whether he is in public life or not, is entitled not to have lies told about him”.
Several documentaries are based on crime stories. An accusation that someone committed a crime is, on the face of it, defamatory. However, there are ways in which documentaries can be crafted to reduce the risk of the producer being sued for defamation. There are also complete defences to defamation lawsuits, such as if the content published is true, or is protected by one of the various types of privilege which may apply.
For example, Narcos is described by Netflix as “the true story of Colombia's infamously violent and powerful drug cartel”. The series depicts the life and death of Pablo Escobar, the leader of the Medellin Cartel, and dubbed the “King of Cocaine”. The drug lord's estate may be concerned about certain scenes in the series, however, the law is that a dead person cannot be defamed. There are also authorities which suggest that a person who already had a negative reputation cannot be further defamed.
The People vs OJ Simpson is a dramatisation which traces the twists and turns of OJ Simpson's murder trial and examines the investigation, charges, trial and acquittal. It must have been uncomfortable for OJ Simpson to watch this series which, arguably, raises additional suspicion about his role in the murders of his ex-wife and her friend. However, a statement which raises a mere suspicion of guilt, but does not accuse the person of committing a crime, is not capable of being defamatory.
Operation Varsity Blues: The College Admissions Scandal is a documentary which includes re-enactments of meetings and phone calls between wealthy parents and a “mastermind”, Rick Singer, in a scam to have their children admitted to top US universities as elite athletes. Following the release of the documentary, former Staples executive John Wilson filed a defamation lawsuit against Netflix, claiming the streaming service ignored evidence of his children's academic and athletic achievements. Netflix argued in response to the defamation suit that that even though it was true that Wilson's son was an actual water polo player, his achievements were inflated, and he was not at the elite level required for recruitment by top universities. Netflix has raised the defence of truth, and the case is ongoing. A statement cannot be defamatory if it is true. A defendant to an action for defamation may also still succeed on the defence of truth if he can show that “sting” or the “gist” of his statements were accurate, even if he cannot prove that every single allegation in the publication is true.
The television drama, Power, which portrays a Manhattan drug lord named Ghost, was recently the subject of a defamation lawsuit. Lions Gate Entertainment Corp, Starz Entertainment Group, and Curtis Jackson, aka 50 Cent, were sued in April 2021 by Cory “Ghost” Holland, a former New York drug lord. In the suit, Holland claimed that Power was based on his life story. He claimed his reputation was irreparably damaged because friends and relatives believe that the show is about his life and, consequently, that he committed the same crimes as the character Ghost, including murder. The suit is ongoing. If a Jamaican court was considering this lawsuit, Holland would need to show that the depiction of Ghost in the series was understood to refer to him. Even if someone is not directly named in a production, he can still sue for defamation if some special facts or circumstances insinuate that the statements are about him. This is known as defamation by “innuendo”.
There is always the risk of a defamation lawsuit when shows are based on the lives of real individuals. However, creators, producers and networks need to be aware of the possible grounds for liability and create ways to reduce those risks.
A manda Montague is an Attorney-at-Law at Myers, Fletcher and Gordon and is a member of the firm's Litigation Department. Amanda may be contacted via firstname.lastname@example.org or www.myersfletcher.com. This article is for general information purposes only and does not constitute legal advice.