Why Netflix Suits Could Shake Streaming – The Hollywood Reporter
The mega-streamer is facing more defamation complaints than any major news outlet, stemming from projects like 'Making a Murderer' and 'When They See Us' — but is it a distributor, a publisher or something else entirely?
NOVEMBER 5, 2021 8:00AM
ILLUSTRATION BY EMILY FLAKE
These days, it’s “Operation Varsity Blues” parents and the “Central Park Five” prosecutor. Then there’s a Jeffrey Epstein buddy as well as the “Panama Papers” law firm. And, let’s not forget, a former Soviet chess grandmaster, too.
When it comes to legal enemies, Netflix has made more than a few. In fact, a review of court records shows the streamer is facing more active libel suits than any big news organization. Think it’s CNN, The New York Times, Fox News or some other media outlet that has the most to lose from changing defamation standards in favor of plaintiffs? Well, perhaps, but don’t discount how libel jurisprudence might factor in the future of entertainment.
Why is Netflix facing so many defamation lawsuits? It’s at least partially because of the nonfiction fare that is booming on the streamer. Following the huge success of 2015’s Making a Murderer, Netflix has been riding the true-crime bandwagon. With such miniseries as Ava DuVernay’s When They See Us, it’s also not afraid to take a modern spin on real-life subjects. Plus, if you’re going to feature Alan Dershowitz in a docuseries called Jeffrey Epstein: Filthy Rich, you should probably expect a call from a former Harvard law professor who hangs out with Donald Trump.
Still, any newspaper worth its ink covers all those stories, too, with a fraction of the legal bill, and it doesn’t quite explain why a Georgian chess champion from the 1960s is suing over a passing remark — albeit sexist — in the fictional series The Queen’s Gambit.
It’s important to realize just how historically bizarre it is that Netflix is defending these suits. Think about it this way: Movie theaters never get sued over motion pictures that are exhibited on their screens. Should AMC or Regal really be responsible for a potentially defamatory documentary? Yet, Netflix is winding up in court with alarming frequency for content including Making a Murderer, Operation Varsity Blues and Messiah that it’s not even producing — just distributing.
That raises an interesting issue with respect to libel laws.
“Let’s say there is something in a book or newspaper that is actionable,” says Eugene Volokh, who teaches First Amendment law at UCLA. “Can a plaintiff sue the bookstore or the newsstand? The answer historically is, ‘Yes, but …’ Yes, you could sue, but they would have special defense: They are the distributors rather than the publishers. That reflects the reality that the bookstore owner can’t be expected to read everything.”
Volokh adds that the legal context arguably could change if, for example, Barnes & Noble received a notice about a defamatory book and continued to distribute it nonetheless. (Hence, the reason for cease-and-desist letters.) Overall, though, it’s going to be hard to stick mere distributors with legal responsibility without showing firm awareness of falsity. “This was the rule before the First Amendment libel revolution,” he says. “If anything, the rule has been strengthened since.”
The Queen’s Gambit (left) and Making a Murderer are two of the projects that sparked complaints. COURTESY OF PHIL BRAY/NETFLIX; NETFLIX
In 1964, in New York Times v. Sullivan, the U.S. Supreme Court famously established the “actual malice” standard — public figures can’t recover for defamation absent a showing of knowledge of falsity or reckless disregard of truth — but one thing that is often overlooked is that this case had nothing to do with the Times‘ own reporting. Instead, the newspaper was in court over an advertisement preaching racial justice. In short: content produced by someone else. The high court noted in this same decision that making a bookseller liable without knowing the contents of books would lead to self-censorship.
In recently attempting to beat a retired Wisconsin police sergeant’s libel suit over Making a Murderer (the plaintiff is claiming the series insinuated he planted evidence to frame a suspect), Netflix tried to emphasize this framework.
“Your Honor, the law on this is straightforward,” Netflix attorney Lee Levine said at a December 2019 hearing. “A distributor, such as Netflix, cannot be said to have disseminated a work of nonfiction created by someone else, be it a book, a magazine article, a film or a television series, with actual malice unless the work itself relates information that is on its face inherently improbable or there were obvious or [blatant] reasons to doubt the reliability of the creator or author.”
Levine argued the judge should “look with some jaundiced eye” at the accusation that it did anything more than distribute Making a Murderer. “It’s like saying the owner of a bookstore can plausibly be said to act with actual malice if a plaintiff [claims] the bookstore owner reviewed the book and reviewed all of the allegations in the book against the source material before they put the book on the shelves. We know that that’s manifestly implausible.”
Yet, the argument wasn’t enough to get Netflix out of the case. (The dispute is ongoing and could result in trial as soon as 2022.) The reason the judge gave for rejection may be quite telling as to why Netflix suddenly finds itself with a libel problem. As U.S. District Court Judge Pamela Pepper explained, there were certain allegations in the plaintiff’s complaint about the streamer that merited further exploration.
“For example, the fact that Netflix accepted awards for Making a Murderer for writing and editing,” said Pepper in an oral ruling. “Netflix accepted those awards … There were Netflix employees who have made statements to the press regarding their roles in producing the programs. There is, of course, reference to collaboration with [filmmakers Moira] Demos and [Laura] Ricciardi.”
The mega-streamer is facing more defamation complaints than any major news outlet, stemming from projects like 'Making a Murderer' and 'When They See Us' — but is it a distributor, a publisher or something else entirely?
NOVEMBER 5, 2021 8:00AM
ILLUSTRATION BY EMILY FLAKE
These days, it’s “Operation Varsity Blues” parents and the “Central Park Five” prosecutor. Then there’s a Jeffrey Epstein buddy as well as the “Panama Papers” law firm. And, let’s not forget, a former Soviet chess grandmaster, too.
When it comes to legal enemies, Netflix has made more than a few. In fact, a review of court records shows the streamer is facing more active libel suits than any big news organization. Think it’s CNN, The New York Times, Fox News or some other media outlet that has the most to lose from changing defamation standards in favor of plaintiffs? Well, perhaps, but don’t discount how libel jurisprudence might factor in the future of entertainment.
Why is Netflix facing so many defamation lawsuits? It’s at least partially because of the nonfiction fare that is booming on the streamer. Following the huge success of 2015’s Making a Murderer, Netflix has been riding the true-crime bandwagon. With such miniseries as Ava DuVernay’s When They See Us, it’s also not afraid to take a modern spin on real-life subjects. Plus, if you’re going to feature Alan Dershowitz in a docuseries called Jeffrey Epstein: Filthy Rich, you should probably expect a call from a former Harvard law professor who hangs out with Donald Trump.
Still, any newspaper worth its ink covers all those stories, too, with a fraction of the legal bill, and it doesn’t quite explain why a Georgian chess champion from the 1960s is suing over a passing remark — albeit sexist — in the fictional series The Queen’s Gambit.
It’s important to realize just how historically bizarre it is that Netflix is defending these suits. Think about it this way: Movie theaters never get sued over motion pictures that are exhibited on their screens. Should AMC or Regal really be responsible for a potentially defamatory documentary? Yet, Netflix is winding up in court with alarming frequency for content including Making a Murderer, Operation Varsity Blues and Messiah that it’s not even producing — just distributing.
That raises an interesting issue with respect to libel laws.
“Let’s say there is something in a book or newspaper that is actionable,” says Eugene Volokh, who teaches First Amendment law at UCLA. “Can a plaintiff sue the bookstore or the newsstand? The answer historically is, ‘Yes, but …’ Yes, you could sue, but they would have special defense: They are the distributors rather than the publishers. That reflects the reality that the bookstore owner can’t be expected to read everything.”
Volokh adds that the legal context arguably could change if, for example, Barnes & Noble received a notice about a defamatory book and continued to distribute it nonetheless. (Hence, the reason for cease-and-desist letters.) Overall, though, it’s going to be hard to stick mere distributors with legal responsibility without showing firm awareness of falsity. “This was the rule before the First Amendment libel revolution,” he says. “If anything, the rule has been strengthened since.”
The Queen’s Gambit (left) and Making a Murderer are two of the projects that sparked complaints. COURTESY OF PHIL BRAY/NETFLIX; NETFLIX
In 1964, in New York Times v. Sullivan, the U.S. Supreme Court famously established the “actual malice” standard — public figures can’t recover for defamation absent a showing of knowledge of falsity or reckless disregard of truth — but one thing that is often overlooked is that this case had nothing to do with the Times‘ own reporting. Instead, the newspaper was in court over an advertisement preaching racial justice. In short: content produced by someone else. The high court noted in this same decision that making a bookseller liable without knowing the contents of books would lead to self-censorship.
In recently attempting to beat a retired Wisconsin police sergeant’s libel suit over Making a Murderer (the plaintiff is claiming the series insinuated he planted evidence to frame a suspect), Netflix tried to emphasize this framework.
“Your Honor, the law on this is straightforward,” Netflix attorney Lee Levine said at a December 2019 hearing. “A distributor, such as Netflix, cannot be said to have disseminated a work of nonfiction created by someone else, be it a book, a magazine article, a film or a television series, with actual malice unless the work itself relates information that is on its face inherently improbable or there were obvious or [blatant] reasons to doubt the reliability of the creator or author.”
Levine argued the judge should “look with some jaundiced eye” at the accusation that it did anything more than distribute Making a Murderer. “It’s like saying the owner of a bookstore can plausibly be said to act with actual malice if a plaintiff [claims] the bookstore owner reviewed the book and reviewed all of the allegations in the book against the source material before they put the book on the shelves. We know that that’s manifestly implausible.”
Yet, the argument wasn’t enough to get Netflix out of the case. (The dispute is ongoing and could result in trial as soon as 2022.) The reason the judge gave for rejection may be quite telling as to why Netflix suddenly finds itself with a libel problem. As U.S. District Court Judge Pamela Pepper explained, there were certain allegations in the plaintiff’s complaint about the streamer that merited further exploration.
“For example, the fact that Netflix accepted awards for Making a Murderer for writing and editing,” said Pepper in an oral ruling. “Netflix accepted those awards … There were Netflix employees who have made statements to the press regarding their roles in producing the programs. There is, of course, reference to collaboration with [filmmakers Moira] Demos and [Laura] Ricciardi.”
