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Netflix may be producing more and more of the movies and television shows that it streams, but when it comes to fare that’s independently produced, the company wants a federal court to know that it is no more than a “distributor.”
Take Making a Murderer, the Emmy-winning documentary series about Steven Avery, who was exonerated for one murder only to later be charged with another. Andrew Colborn, a retired Wisconsin police sergeant, alleges in a lawsuit that Making a Murderer libeled him by insinuating he planted evidence in an effort to frame Avery for that second murder. Even if Colborn’s allegation that the documentary is a provable falsehood is accepted though, Netflix argues in a motion to dismiss filed on Thursday that Colborn hasn’t sufficiently pled Netflix’s culpability.
Colborn “simply lumps Netflix together with co-defendants Chrome Media, LLC — the concededly independent production company that created Making a Murderer — and its filmmakers, Laura Ricciardi and Moira Demos, and makes vague, conclusory allegations… about ‘defendants’ collectively,” writes Netflix’s attorneys. “Setting aside all the other problems with Colborn’s lawsuit — most fundamentally, that Making a Murderer contains no false statements of fact about him — he has not plausibly alleged that Netflix distributed the documentary series negligently, much less with the requisite actual malice.”
The brief (read here) invites discussion of what Netflix does and how that fits within the legal framework. After all, few have ever suggested that movie theaters should be punished if the motion pictures that they screen contain defamatory statements. On the other hand, television networks do get sued over independent productions. And when a newspaper or magazine carries a defamatory quote, these publications may be responsible for third-party statements under “republication liability.” So where is Netflix’s place here? It’s not simply a provider of an interactive service, right? If so, under Section 230 of the Communications Decency Act, it’s not treated as a publisher and is shielded from information provided for others. At least at the moment, Netflix doesn’t raise any CDA defense. Nevertheless, whether Netflix is framed as the publisher or a distributor, Colborn must still highlight Netflix’s duty towards truth.
Netflix faults Colborn for not expressly spelling out its “role (if any) in the series’ production” and highlights how Colborn’s complaint fails to make any factual allegation “regarding Netflix’s state of mind with respect to the truth or falsity of MaM that could plausibly support Colborn’s conclusory claim that Netflix acted with the requisite degree of fault.”
Colborn could have alleged that Netflix “knew” or “should have known” Making a Murderer contained defamatory statements, say, that the streamer’s representatives reviewed Avery trial proceedings or had seen outtakes that undercut what actually made it into the documentary.
Since he doesn’t, and merely states that Netflix “released” the series for worldwide distribution, Netflix contends there’s nothing here to suggest any knowledge of probable falsity.
“Nothing in the Amended Complaint connects the alleged omissions, distortions, and falsifications in the series to any action or inaction by Netflix, as opposed to the Producer Defendants,” continues Netflix’s Ballard Spahr attorneys in further effort to create space between its actions and those of Ricciardi and Demos. “Nor does Colborn attempt to allege a ‘uniform standard of behavior’ for distributors of nonfiction documentary series or even begin to explain how Netflix violated such a standard. (Nor could he because… distributors such as Netflix are not expected or required to investigate the accuracy of programs they distribute, absent some ‘blatant’ clue that the content is false in some material respect.)”
Lest this be interpreted as any implied attack on the filmmakers, Netflix also addresses Colborn’s potential avenue of counterargument that its fault comes from too surely entrusting them with confidence.
“Colborn has not pleaded that there was anything in Ricciardi’s and Demos’s background that should have put Netflix on notice that they were unreliable,” states the motion. “It is not ‘actual malice’ to publish material from a source whose credibility is not suspect… The principle that publishers are entitled to rely on authors and other content creators they have no reason to doubt is merely an application of the black-letter law that ‘failure to verify information, without more, is not evidence of actual malice.'”
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