Is the real person being fictionalised a public figure or an ordinary, private person like Harvey? That also makes a difference, at least in terms of the legal ramifications. “If it’s a public figure who is suing because of something that’s been said about them or the way that they’ve been portrayed, then that public figure has to show clear and convincing evidence that the defendants—the writer, the network, whoever—made false statements about them, knowing they were false, or being reckless as to their falsity,” says Alexander Rufus-Isaacs, a lawyer with extensive experience in this area who currently represents Rachel DeLoache Williams. Ideally you’d find a smoking gun, like an email that says something like: “‘Hey, we are portraying Mr. X as a child molester, but we know that he isn’t,’” says Rufus-Isaacs. “In reality, you very rarely find anything quite as definitive, so you’re left drawing inferences.” For a private figure, he says, it’s a much lower bar: “They only have to establish that the [defendants] were negligent, that they didn’t research the thing properly.”
Although he’s not involved in the Baby Reindeer case, Rufus-Isaacs sighs when I ask him about it. “The question I ask creatives is this: Don’t you feel some responsibility to the person you’re talking about?” he says. “If you’re not going to be entirely accurate and you’re going to be nasty about them, don’t you have a duty to disguise them and protect them?” They changed Harvey’s name, but Rufus-Isaacs believes they kept too many identifying biographical details. Instead of having fictional Martha work in law the way the real Fiona Harvey does, he says, “Make her a couturier or something!”
Ed Miller/Netflix
This echoes comments from Laura Wray, a woman who has accused Harvey of stalking her in real life. (Harvey has denied Wray’s allegations and told Piers Morgan that Wray made them because Harvey was running for parliament at the time.) “It was obvious to me and to a lot of other people that she [‘Martha’] was my stalker,” she has said. “They made her a lawyer. That detail didn’t have any bearing on the story. They could have made her a doctor, or an accountant.” And she noted that Gunning sounds like her: “I mean, she had the same laugh, even the same slightly kind of funny waddling walk.”