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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.”
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.”
In other words, Netflix has enjoyed its high profile so much that it’s taking credit for things it needn’t be taking credit for if it were merely a distributor. And that’s put a giant bull’s-eye on its logo.
Meanwhile, as Netflix positions itself closer to being a traditional Hollywood studio than a modern-era movie theater replacement (at least publicly, if not in court), there’s a movement afoot in conservative-leaning legal circles to reconsider the actual malice standard. A pair of Supreme Court justices — Clarence Thomas and Neil Gorsuch — have already endorsed a constitutional perspective that would make it easier for defamation plaintiffs, while the 8th Circuit Court of Appeals made noise with a decision in September. In the case of Devin Nunes v. Ryan Lizza, the federal appellate circuit suggested that even if something doesn’t rise to actual malice on first publication, it could get there when a defendant later tweets out material with “purposeful avoidance of the truth.” Applied to Netflix, that might raise the possibility of the streamer being held legally responsible for projects it promotes.
On the other hand, Netflix might enjoy an untested advantage that most libel defendants can’t use. That would be Section 230 of the Communications Decency Act, which provides immunity for internet platforms with respect to third-party content.
“Netflix should qualify for any third-party content it publishes online, even if it acquires the copyright to the works,” says Eric Goldman, a professor at Santa Clara University School of Law. “It becomes clearer if we imagine that same video is posted to YouTube; YouTube would easily qualify for Section 230. So why would Netflix be treated differently?”
Of course, to take advantage of Section 230 — which Goldman says was written with paywalled, licensed content in mind — Netflix would be casting itself more like a tech company than a media entity and taking refuge in a controversial law that is commonly associated with the likes of Facebook, Twitter and Google. So far, Netflix hasn’t done so, and given the opportunity to say whether that’s on the table, a company spokesperson declined to comment.
At the moment, a few libel lawsuits won’t deter an entertainment giant that obviously has enormous pockets. But, if some of these cases go to trial, plaintiffs could put on display Netflix’s wealth and detail some of its inner operations. And there’s always the risk that juries may try to send messages with large damage verdicts. Should that occur, all bets are off. One thing that is clear — especially in the streaming era and amid a boom of new platforms — is that Netflix shouldn’t be ignored when legal responsibility for content gets discussed.
This story first appeared in the Nov. 3 issue of The Hollywood Reporter magazine. Click here to subscribe.
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