Documentaries — The Next Frontier in Defamation?
Fact can be stranger than fiction – which Netflix and other studios have capitalized on in recent years with the proliferation of entertaining documentaries like “Tiger King” and “Murdaugh Murders: A Southern Scandal.” As studios have continued to churn out wild “based-on-a-true-story” content to satisfy America’s “docu-mania,” we are now in an age where it seems like “every big headline [is] bound for streaming.”[1]
While audiences may love this content, the same cannot be said about the subjects of these documentaries. Since filmmakers are driven to create engaging content, even when depicting real people and events, documentarians tend to “enjoy the freedom to distort and manipulate storylines to weave cohesive narratives.”[2] Consequently, subjects are frequently upset and hurt by their depictions. Thus, the golden age of documentaries has ignited a corresponding rise in defamation lawsuits filed against studios.
For example, in 2019, the “Afflicted Four” sued Netflix for their portrayal in Afflicted, a seven-part docu-series that followed people with rare and misunderstood chronic illnesses who sought controversial treatment. In the complaint, the plaintiffs alleged that they were “duped . . . into participating in a salacious reality television program that questioned the existence of their chronic illnesses and portrayed [them] as lazy, crazy, hypochondriacs and/or malingerers who were deserving of scorn and who . . . have received scorn and abuse because of Netflix’s cruel and duplicitous actions.”[3] In June 2023, after a nearly four-year-long legal battle and unsuccessful motions to dismiss the compaint, Netflix settled the lawsuit for an undisclosed amount.[4]
However, courts have clarified that not every unflattering depiction that appears in a documentary rises to the level of defamation. For instance, in March 2023, Netflix prevailed at the summary judgment stage in a lawsuit filed by Andrew Colburn, a retired police sergeant, over his portrayal in Making a Murderer.[5] The series chronicles the story of Steven Avery, who was falsely convicted of rape and spent almost two decades in prison before he was exonerated through DNA evidence. However, shortly after Avery returned to his hometown, he was arrested for murder and sentenced to life in prison. Making a Murderer accuses Colburn of planting evidence and framing Avery.[6] Colburn pointed to 52 distinct claims of defamation throughout the series, which included Netflix using graphics and music to insinuate that Colburn acted inappropriately during the investigation, as well as abridged interview clips that further pointed to his involvement in Avery’s conviction.[7]
The judge ruled in Netflix’s favor, finding that the First Amendment “protects the media’s ability to cast [Avery] in a much less flattering light” and that “most of [Avery’s] gripes read more like media criticism better suited to the op-ed section; they are not actionable statements that could even potentially be defamatory under Wisconsin law.”[8]
This ruling was a win for studios plagued by defamation lawsuits; the judge in the case acknowledged the need for creative license in journalism and noted that documentaries have the liberty to “abbreviate, edit, and emphasize” some facts.[9] Nevertheless, as recent events have shown, legal battles over defamation in documentaries are far from over. In January 2024, Diana Copeland, a former assistant of R. Kelly, sued Lifetime and Netflix for defamation for her depiction in Surviving R. Kelly.[10] Based on the divergent outcomes in the Afflicted case and Making a Murderer, it will be interesting to see how this lawsuit and others like it play out.
[1] https://time.com/5951774/new-documentaries-streaming/
[3] https://deadline.com/2023/06/netflix-sued-affliction-documentary-defamation-fraud-1202664068/