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After more than one year since trial, the long-awaited decision on whether a particular type of rowing machine is capable of copyright protection in England & Wales as a work of artistic craftsmanship came out earlier this week. The decision has been hotly awaited because there are relatively few cases that consider precisely what constitutes a work of artistic craftsmanship, and is thus of potential wide application.

Impact

The rowing machine in question was not a work of artistic craftsmanship, and therefore not capable of copyright protection.

The decision means that it will be harder for designers of 3D works, which are not sculptures, to rely on copyright as a form of protection in England & Wales, as opposed to seeking such protection in the EU, where the bar for copyright to subsist is lower.

Designers can of course continue to rely on design rights, whether registered or unregistered, which remain unaffected by this decision.

Background and decision

The decision considered the interplay between the legal tests for subsistence of copyright under EU law and under English law. Whilst the product met the requirement of originality under EU law, that was not determinative for copyright to subsist under English law. It mattered that the statutory test under English law also had to be met: section 4(1)(c) Copyright Designs & Patents Act 1988 as interpreted through a series of common law cases (including a New Zealand judgment). In summary, this requires the author of the work in question to be an “artist craftsman“, who produces “something which has aesthetic appeal” and such work “must have some artistic quality” and the author must have a desire “to produce something of beauty which would have an artistic justification for its own existence“.

Whilst the rowing machine in question had aesthetic appeal and its author was a craftsman, the judge held after reviewing the evidence that its author did not have the character of an “artist craftsman” (paragraph 188) nor was the rowing machine the result of a mind with a desire to produce something of beauty which would have an artistic justification for its own existence (paragraph 182). Thus the English law statutory test was not met.

Comment

This judgment is consistent with the English courts recognising the tension between EU law and English law with regards to what works are capable of attracting copyright. Importantly, this judgment does go further than previous judgments in its recognition that it is not possible for the English courts of first instance to reconcile EU law on subsistence of copyright (which has no requirement of any aesthetic effect for copyright to subsist in a work) with the requirements of the English law statutory test summarised above for copyright to subsist in a work of artistic craftsmanship. It therefore appears there is now judicial confirmation that Parliament would need to amend the legislation, to say otherwise.

Copyright would confer a generous term of protection of generally 70 years plus life of the designer. Whereas unregistered design rights generally only last up to a maximum of 10 years where the design is marketed/sold, and up to 25 years if a design is registered. Increasingly in recent years there have been attempts to secure copyright in 3D works that are not sculptures, partly because of the far more generous term of protection, and as a result of recent EU decisions. These attempts have rarely ever succeeded in the UK, so very few cases are litigated, as designers instead rely on their unregistered or registered rights in their 3D works.

Although much turned in this case on the facts (and the underlying claimant’s intent at the time of designing their rowing machine, which was to produce something commercially successful), the bar for copyright in England & Wales to subsist in a work of artistic craftsmanship appears to have been set higher, as the designer’s rationale for making a 3D work on the basis of it being commercially successful, rather than it purely being a work of beauty, appeared to have played a key factor in the judge’s decision.

It will be interesting to see whether the decision is appealed. Meanwhile, this judgment will be a useful tool for both legal practitioners and rightsholders on the thorny issue of whether copyright can subsist in something as a work of artistic craftsmanship under English law.

A link to the judgment (WaterRower v Liking [2024] EWHC 2806 (IPEC)) can be found here.

It has been a week of landmark intellectual property judgments, given the Supreme Court’s ruling in trade mark case Sky v Skykick. More detail on that decision, can be found in the article here.

After many years of proceedings, the long-waited trade mark case Sky v SkyKick has finally reached a decision at the Supreme Court today. The Judgment contains clear direction on when a trade mark has been registered in bad faith.

Impact

Owners of UK registered trade marks with broad specifications are now increasingly vulnerable to their marks being subject to invalidity attacks on the basis of bad faith, particularly where there is no intention to use such a broad specification. Trade mark owners should liaise with their trade mark advisers to review their portfolio and filing strategy, and how the decision may impact any ongoing or potential disputes.

Where we are already handling UK trade marks on your behalf, we will be reviewing whether your UK trade mark registrations need to be reviewed and whether the results of this case will affect any disputes you are currently involved with.

Background

• Sky brought actions against SkyKick for infringing its trade marks across a range of goods and services, and SkyKick in return challenged the validity of Sky’s trade marks.
• SkyKick argued that Sky had applied for its trade marks in “bad faith” and that they were thus invalid. Skykick had alleged that Sky’s trade mark applications were far too broad and separate from its core business and that Sky had no genuine intention to use the marks for the claimed goods and services. One of these terms was “computer software”.
• In the High Court, the Judge found that Sky had acted in bad faith and its trade marks were partially invalid, but SkyKick’s services had infringed Sky’s trade marks.
• Sky appealed the decision on bad faith, and Skykick cross appealed the decision on infringement.
• The Court of Appeal found that Sky had not acted in bad faith when registering its trade marks, and SkyKick’s appeal on infringement was dismissed.
• Skykick appealed to the Supreme Court the bad faith decision made by the Court of Appeal.
• A key issue considered by the Supreme Court was the basis for a finding that an application to register a trade mark had been made in bad faith.

Decision

• The Supreme Court affirmed the Court of Appeal’s finding on infringement.
• The Supreme Court reversed the Court of Appeal’s finding on bad faith and held that the High Court was entitled to find that the SKY marks were applied for in bad faith to the extent that it did.
• An application to register a mark in respect of a broad category of goods or services may be made partly in bad faith in so far as the broad description includes distinct sub-categories of goods or services in relation to which the applicant never had any intention to use the mark. It would be anomalous for traders who use broad terminology to describe the goods and services for which they seek protection to find themselves in a more favourable position than those who use appropriate sub-categories to describe the same goods and services.
• An applicant does not have to have a commercial strategy to use a mark for every possible species of goods or services falling within the specification. Nor is it an objection that the applicant has applied for a wide range of goods and services using class headings or other general terms.

Labour’s first Budget hopes to raise UK taxes by £40 billion. Highlights are as follows:

Income Tax

• No increase. Threshold freeze will end from April 2028.

National Insurance Contributions (NICs)

• No change to employee NICs. Threshold freeze will end from April 2028
• Employer NICs will increase to 15% from 6 April 2025, and the contribution threshold will decrease from £9,100 to £5,000.

Capital Gains Tax

• Basic rate (currently 10%) increased to 18%; higher rate of 20% to 24% from 30 October 2024.
• Rates for Business Asset Disposal Relief (formerly Entrepreneurs’ Relief) and Investors’ Relief will rise from 10% to 14% from 6 April 2025, and 18% from 6 April 2026.

Corporation Tax

• No major changes announced.

Inheritance Tax (IHT)

• IHT thresholds frozen until 2030 (previously 2028). No change to headline rate of IHT (40%).
• From 6 April 2026, assets qualifying for Agricultural Property Relief and Business Property Relief will attract relief at 100% up to a value of £1 million only, and at 50% over £1 million.
• Most pensions will be included in a person’s estate for IHT purposes from 6 April 2027.

Taxation of Non-UK Domiciled Individuals

• Domicile to be abolished as a tax concept, and a residence-based tax regime to replace it. This will impact personal and trust taxation.

Stamp Duty Land Tax (SDLT)

• Surcharge for second home purchases to increase from 3% to 5% from midnight on 30 October 2024.
• SDLT on enveloped dwellings to increase from 15% to 17%.

Private Schools

• Standard rate VAT at 20% to apply to private school fees from 1 January 2025.
• Business rates relief to be abolished from April 2025.

We have all, at one time or another, walked away from an argument and all too late thought of the crushing blow we should have delivered; a comeback there would have been no coming back from. If only we had said it at the time, we would have flicked our hair at our adversary (reduced to a gibbering wreck), turned on our heel, and spent the day bathing in our victory at the War of the Words.

Most of us think of that most lethal rebuttal while still seething slightly from the heat of the argument: later in the shower, having dinner or getting ready for bed. It will probably never graduate from the recesses of our mind and actually be articulated.

But some want to see that their revenge is served truly ice cold. What better way, then, than to leave that parting shot in your Will? It is a stroke of genius, surely; not only will your enemy have no right of reply, but the whole world (Wills are public documents in England and Wales) will bear witness to you having had the final word.

In eighteenth century France, the Marquis d’Aligre became a pioneer of the testamentary takedown. His Will read: ‘to my wife I leave her lover, and the knowledge that I was not the fool she thought me; to my son I leave the pleasure of earning a living. For twenty years he thought the pleasure was mine.’  Ouch.

Napoleon Bonaparte followed suit shortly thereafter. Although he had only good words to say of his wife ‘I retain her to my last moment, the most tender sentiments’, he was less complimentary of the English whom he anticipated would be responsible should he die: ‘I die prematurely, assassinated by the English oligarchy and its assassin. The English nation will not be slow in avenging me.’ Ultimately it was of course the hepatitis, and not the English, which saw to his demise.

The earliest example I have found in English law is from 1825, some four years after Napoleon’s death. In the case of Curtis v Curtis [1825] 162 ER 393, Mr Curtis left a Will in which he flouted his wife and bequeathed his entire Estate to his sister instead. In the Will itself he justified disinheriting his wife as being ‘a consequence of [her] cruel and murderous conduct, in this illness, as well as in past instances.’ On an application made by Mrs Curtis, the Court agreed to ‘strike out that extraneous part [of the Will], so injurious to her character—for which there was said to be not the slightest foundation.’

In Re the Estate of Robert White [1914] P 153, Mr White demonstrated similar antipathy towards his own wife: ‘he stated in his Will that he left nothing whatsoever to his wife (naming her and giving the name and address of her father), for reasons which he proceeded to give and which, while reflecting in no way on her chastity, were said to be scandalous and defamatory and would be painful to her and derogatory to her character if included in the probate.’ Mrs White’s counsel, acting for her in the application to have the words removed from the Will, was so offended by the words written by Mr White in his Will, he refused to read them in open Court.

In the Scottish case of B’s Executor v Keeper of the Registers and Deeds of Scotland [1935] SC 745, one (anonymous) testatrix left one farthing each to several of her relatives ‘as a reward for their mean scheming for years.’ She doubled down on one particular relative whom she called ‘that dangerous, intriguing female, that arch schemer! She wanted to compel me to buy her old hats at a £1 each.’

Why should a scorned testator limit themselves to levelling posthumous indiscretions at family members? In Re the Estate of Robert Myles Howard [1916] P 47, Mr Howard was a soldier serving in World War I when he wrote a letter (which would ultimately constitute his Will, the formalities for creating a Will being relaxed in the case of serving members of the armed forces) to his wife’s father. In the letter, he apparently expressed his love for his wife and left her various of his possessions. When probated, however, the Will was only reproduced in part, the military authorities having ‘expressed the view that it was undesirable to publish the whole of the letter.’ It is unknown precisely what Mr Howard wrote in his letter which caused the military authorities to object so vehemently, but whatever it was the presiding Bagrave Deane J. concluded that it should be ‘ignored’ and that ‘the ordinary practice cannot be allowed to prevail over the exigencies of the public service in time of war.’

The above are some of the more interesting examples I have been able to source. For the reasons I explain in more detail below, the public will never become privy to the majority of offensive, libellous or even blasphemous statements contained in Wills.

A testator is well within their rights to elaborate in their Will on why they have structured their legacy in such a way. ‘I leave £10,000 to my son, so that he may have an income of his own’ would probably be just fine. It is settled law, however, that a testator may not ‘use his Will as a vehicle for slander’ (Re Hall’s Estate [1943] 2 All ER 159).  ‘I leave £10,000 to my son, because I’m sick of him mooching off his girlfriend’ would be less fine.

On the appropriate application having been made, the Court will exclude the offending words from the copy of the Will which enters the public domain. In fact, if there is no doubt about the words being defamatory or blasphemous, the Registrar may actually refuse to probate the Will until the application has been made to have those words removed.

No one has ever sued an Executor for offensive or libellous words contained in a Will. In fact, they are prohibited from doing so at law. Notwithstanding the general rule about rights of action surviving death, and subsisting instead in a person’s Executors (whether for the benefit, or to the detriment, of the Estate), the rule specifically precludes defamation claims (s. 1 (1) Law Reform (Miscellaneous Provisions) Act 1934). Defamation claims therefore die with the deceased.

However tempting it may be, therefore, to tell your spouse, neighbour or former boss what you really thought of them (or their desire for you to buy their used headgear at a premium) in your Will, your words are unlikely to ever see the light of day. Instead, your Executors will be burdened with making a costly and time-consuming application to the Court to have the words expunged.

I will stop short of telling you to get it off your chest now, while you can. But I will say speak now, or forever hold your peace.

Yesterday the government published the draft Employment Rights Bill, just ahead of Labour’s first 100 days in power. Many extensive reforms were anticipated, but the Bill contains watered-down versions of the changes that were expected, and kicks their implementation into the long grass by requiring consultations on the finer details. Some proposed reforms are not integrated into the Bill at all, such as a statutory ‘right to switch off’ outside of normal working hours, which will now be implemented through a Code of Practice. Some changes still require extensive consultation, such as a single ‘worker’ status.

The most drastic of the changes outlined in the new legislation is the right that will be granted to workers to claim unfair dismissal from their first day of working with an employer – currently, only those who have completed two years of service with their employer can claim unfair dismissal. However, employers will still be able to impose probationary periods, which the government has indicated could be nine months long, and it’s not clear what a fair process for dismissal will look like. The Government has said these reforms to unfair dismissal will not come into effect until Autumn 2026, which is in stark contrast to initial Labour party communications suggesting that these rights may be effective immediately.

A further measure is the extension to all workers, regardless of level of earnings, of the right to receive Statutory Sick Pay (which the employer must pay) from their first day of illness. Until now, only those earning above £123 per week are entitled to receive Statutory Sick Pay, and only once they have been ill for three consecutive days. As there is presently no suggestion that the level of SSP (currently £116.75) will be increased, this reform will not represent a significant cost increase for most employers, but nor will it improve the position of employees in any material way.

Another change, effective once the Bill comes into force, is a right to take paternity and parental leave with no minimum period of service with an employer required, although there will be no equivalent change for maternity leave as had been speculated. At present, individuals must be employed for six months to be entitled to paternity leave and pay from their employer, and one year for parental leave. A right to flexible working will also become the default position for all, once the Bill is passed, unless the employer can prove the request is unreasonable.

The Bill sets out an employer’s duty to take “all reasonable steps” to prevent sexual harassment of staff. This widens the prevention duty provisions, already scheduled to come into force on 26 October, which place a duty on the employer to take “reasonable steps” to prevent sexual harassment of staff in the course of their employment. The Bill also states that an employer is deemed to have permitted a third party to have harassed a staff member if it failed to take all reasonable steps to prevent the third party from doing so. This is a high bar for employers to meet.

Of course it is possible that not all of these provisions will survive the passage of the Bill through its various approval stages. The Bill is only at the second reading stage in the House of Commons, and must still pass through the House of Lords and receive Royal Assent before it is passed and the changes become effective. The government has said it expects that the majority of reforms will not take effect until 2026.

Do reach out to a member of the Employment team if you wish to discuss any of these changes further.

The Information Commissioner’s Office (ICO) is the UK’s data protection regulator and it announced on 09 October that from 11 of October, it will be piloting changes to the way it provides support to businesses.

One of the first changes includes removing the ability for organisations to make inbound calls the ICO phone line for advice and clarity. The ICO states that “Instead of first calling [their] phone line, businesses can access a wide and growing range of online resources to get the certainty they need on any data protection concerns. [The ICO’s] expert advisers will still be on hand to provide businesses with additional support via the live chat facility and outbound calls.”

Heading Test

This comes after the ICO’s Data Protection Practitioners’ Conference held on 08 October and before the new UK Labour Government’s introduction of the Digital Information and Smart Data (DISD) Bill – which includes an aim to strengthen the ICO’s powers and target reform to some data laws. The DISD Bill aims to transform the ICO into a more modern regulatory structure, with a CEO, board and chair with new, stronger powers. This will be accompanied by targeted reforms to some data laws that will maintain high standards of protection but where there is currently a lack of clarity impeding the safe development and deployment of some new technologies. It will also promote standards for digital identities around privacy, security and inclusion.

The removal of the ability to call the ICO phone line for advice may impact an organisations ability to understand the ICO’s expectations when complying with data protection laws especially where the ICO’s online guidance is not always clear.

If you would like to keep up to date on the latest in data protection, please get in touch to subscribe to our newsletter, The Data Download.

Link to the ICO’s statement: https://ico.org.uk/about-the-ico/media-centre/news-and-blogs/2024/10/changes-to-our-services-for-businesses/

The High Court in D’Aloia v Persons Unknown Category A & Ors [2024] EWHC 2342 (Ch) (full judgment available here), has recently dismissed claims brought by a Claimant, who was the object of a complex crypto based fraud, against Bitkub, a cryptocurrency exchange located in Thailand. Bitkub had allegedly received the Claimant’s Tether, a ‘stablecoin’ which essentially pegs its value to the US Dollar and is backed by reserves (USDT).

The Claimant alleged that Bitkub held USDT which he had initially transferred to fraudsters (the First Defendants and persons unknown), having believed he was making legitimate transfers to a regulated brokerage. The USDT, according to the Claimant’s expert witness, was subsequently dissipated by way of numerous transfers (or ‘hops’ as they were called in the proceedings) to various accounts. A proportion of the USDT allegedly ended up in an account referred to as the ‘82e6 Wallet’, which was operated by Bitkub and held by the Seventh Defendant, who was later identified as Ms Hlangpan. Ms Hlangpan then withdrew the USDT from the 82e6 Wallet and converted it into Thai baht, which was then withdrawn.

This judgment of 12 September 2024 dealt principally with the claims against Bitkub, with other claims against the other defendants (including the popular exchange, Binance) having been either previously settled, struck out, or been made subject to a summary judgment application. This recent judgment also comes after the widely publicised interim decision from the High Court on 24 June 2022, which allowed the Claimant to serve the proceedings on the unknown defendants and exchange defendants via NFT (judgment available here: D’Aloia v Persons Unknown & Others [2022] EWHC 1723 (Ch).

Following the recent trial, the Court found that the initial fraudsters (the First Defendants and peoples unknown) had held the USDT on constructive trust for Mr D’Aloia from the point the USDT was transferred to them, but that Bitkub had not similarly held the USDT on constructive trust for Mr D’Aloia. The constructive trust claim against Bitkub primarily failed on the basis that the Court could not find, as a matter of fact, that the USDT in the 82e6 Wallet had come from the Claimant. The Court was very critical of the methodologies used by the Claimant’s expert witness as part of his tracing exercise which led him to the 82e6 Wallet. This was essentially fatal to Mr D’Aloia’s claims against Bitkub.

The Claimant sought to argue (by way of a non-pleaded claim which arose at trial) that the constructive trust over USDT held by Bitkub, was essentially premised on the fact that Bitkub had failed to implement its own anti-money laundering (AML) procedures. The significant withdrawal and conversion of the USDT to Thai baht occurred amidst a backdrop of clearly suspicious account activity which Bitkub was aware of. This, the Claimant alleged, therefore provided the foundation for the finding of a constructive trust. The Court rejected this argument, partly on the basis that it had not been advanced prior to trial and that a previous application to adduce Thai law evidence as to Bitkub’s compliance with contemporary AML practices in Thailand (again made close to the start of the trial), had been rejected.

In dismissing the constructive trust claim, the Court noted that even if a trust could have been established, it would not have been in favour of Mr D’Aloia. This was despite the Court agreeing, amongst other points, (i) that Bitkub had fallen short of its own due diligence procedures which operated to prevent money laundering, by failing to impose a ‘block’ on Ms Hlangpan’s account when significant withdrawals which far exceeded the daily limits contractually placed on her by Bitkub were made, and (ii) that Ms Hlangpan’s Bitkub account was being used to launder the proceeds of fraud and that the transaction volumes could not have originated from her legitimate income.

The Claimant also brought a claim in unjust enrichment against Bitkub. However, whilst the Court accepted that USDT had been held in the 82e6 Wallet and that Bitkub had arguably been enriched, this was not an enrichment which could be proven to have been at the expense of the Claimant, as the Court was not convinced that the 82e6 Wallet specifically held the Claimant’s USDT. This claim therefore failed on the same factual basis as the constructive trust claim.

Despite the Claimant being unsuccessful at trial, the case is significant, and potentially helpful for similar victims of crypto fraud, for the following key reasons:

1. Many of the issues and recent Court decisions involving crypto fraud, have not been made following a trial and therefore have arguably been of limited use as a matter of binding precedent. The D’Aloia case is the first of its nature to be made following a trial and has given credence to many of the findings outlined in previous ‘interim’ judgments. In turn, this has provided greater certainty for victims of crypto fraud as to how their claims might be dealt with by the English Courts, which are evidently willing to tackle the complex legal and factual issues involved.
2. The Court maintained that tracing through a mixed fund is not possible at common law, but is available in equitable claims and went onto accept that “in principle the USDT in this case could have been followed”. This is relevant in circumstances where cryptocurrencies are mixed in a ‘hot wallet’ by an exchange. The Court indirectly accepted that Tether Ltd (the entity that administers USDT) would likely have had the records necessary to follow the Claimant’s USDT successfully. Relevant to this, the D’Aloia judgment carefully considered the underlying nature of USDT as a class of cryptocurrency and in referring specifically to Tether Ltd’s white paper, noted that Tether Ltd has the power to create and destroy USDT. No evidence from Tether Ltd as to the Claimant’s USDT had been put before the Court, so it was unable to use such records to find that the USDT previously held in the 82e6 Wallet was indeed the Claimant’s. Accordingly, the Court indicated that such an information gathering exercise could be utilised by similar victims in future cases – a point which is likely to be extremely helpful to those seeking to follow and recover USDT specifically.
3. Through the Court’s extensive criticisms of the Claimant’s expert witness, it emphasised the vital importance of a robust and clearly explained tracing/following exercise and identified pitfalls that need to be avoided when carrying out such an exercise in the future.
4. The Court’s rejection of the Claimant’s constructive trust claim, which relied on Bitkub’s AML failings (which had not previously been pleaded), was not premised on the claim in theory being objectionable. Aside from the lack of convincing factual evidence that the Claimant’s USDT was held by Bitkub, the Court felt bound by the previous judge’s decision that the Claimant’s prior applications to make this argument by way of amended particulars of claim and adduce additional evidence in respect of it, had been rejected. Therefore, in circumstances where the internal AML procedures of an exchange have been manifestly inadequate, victims could in theory look to rely on these inadequacies in order to impose duties on exchanges as trustees – provided that the underlying trust claim is clearly pleaded and appropriate evidence adduced in good time.
5. The Court confirmed that a variety of defences, typically available to recipients of fraudulently appropriated funds, could in theory be available to an entity in receipt of fraudulently appropriated cryptocurrency (such as Bitkub)^[1].The Court also indicated that these defences may not be available in contexts where the recipient’s AML procedures were insufficient, as was the case with Bitkub.

The Court definitively confirmed that USDT is property^[2], with proprietary rights attaching to the USDT itself, rather than the right to control it (for example, by way of private key). This classification is vital in ensuring effective proprietary claims and remedies are available to victims of crypto-based fraud.

[1] including the defences of a good faith change of position, a bona fide purchaser for value without notice (specifically in relation to Tether) and ministerial receipt.

[2] Despite not being a chose in possession or a chose in action, it satisfied the test outlined in National Provincial Bank Ltd v Ainsworth [1965] 5 WLUK 32.

A judge in the United States has ruled that Fiona Harvey, the woman accused of stalking Baby Reindeer creator Richard Gadd, can continue her defamation claim against Netflix.

Baby Reindeer portrays the experiences of Richard Gadd, its creator and star, as his character Donny is stalked by a woman called Martha. Despite changing the names of the individuals portrayed, a California court found the series to be “heavily based on reality”. Like Harvey, the character of Martha is a lawyer from Scotland living in London, 20 years older than Gadd, who has previously been accused of stalking a lawyer in a newspaper article. The character also has an “accent, manner of speaking, and cadence… indistinguishable” to Harvey.

Within the story, Martha frequently posts on Donny’s social media pages. The content of one post, shown in the series, was in fact identical to a message posted by Harvey to Gadd in 2014. As we discussed in an earlier article, viewers discovered Harvey to be the real Martha within days of the show’s release via the process of jigsaw identification.

The fact that Harvey confirmed the suspicions around her identity on Facebook, and later took part in an interview with Piers Morgan, did not convince the court that her claim should be dismissed.

Whilst Harvey’s purported real-life actions were considered “reprehensible” by the court, district judge Gary Klausner ruled that the events shown in Baby Reindeer were “of a worse degree”, depicting Martha as a convicted criminal who had spent 5 years in prison for stalking, who sexually assaulted Gadd in an alley, violently assaulted him, and stalked Gadd by waiting outside his home for “every day for up to 16 hours a day”. None of these events depicted were in fact true.

Netflix sought to strike out Harvey’s claim, under anti-SLAPP laws, which allow a defendant to file a special motion to strike a complaint that is brought primarily to chill the valid exercise of free speech and petition. The court rejected this. The judge stated that “there is a major difference between stalking and being convicted of stalking in a court of law…there are major differences between inappropriate touching and sexual assault, as well as between shoving and gouging another’s eyes”.

A significant point the court took into account was the fact that each episode of the series opens with the sentence “this is a true story” being shown on-screen.  By contrast, Gadd’s theatre play, on which the series was based, claimed only to be “based on a true story”. The judge expressed concerns about the addition of this on-screen text and the fact that this would be likely to lead viewers to conclude that everything depicted was accurate, when this was not the case.

The court therefore denied the defendant’s motion to dismiss the defamation claim, stating that Harvey’s claim “has a probability of prevailing on the merits”.

Defamation

Although Harvey is pursuing her claim in California, this case continues to highlight some of the general legal risks around dramatisations of stories based on true events. In this jurisdiction, whether a depiction of a real person is defamatory or not would turn on factors such as whether they are identifiable, whether the events depicted are accurate, or whether viewers would understand that some aspects have been fictionalised for the purpose of the show. Use of taglines such as “based on a true story” can make viewers aware that the events depicted are not factual and help mitigate the risk of a defamation claim being brought.