The Netflix drama Baby Reindeer was supposed to be the streaming platform’s breakout hit of 2024, but has instead become a legal headache for the streamer worth a potential $US170 million payout to English-born Scottish lawyer Fiona Harvey, who claims to be the real-life inspiration for one of its characters.
That case has now become a crucible in which the traditional playing pieces of documentary, docudrama and “based-on-a-true-story” television dramas are being put to the torch. At stake? The boundary between documentary and “true crime” or “true life” fiction.
“It is a seminal moment,” British producer Steve Anderson told a television industry forum at the Monte-Carlo Television Festival. “Who knows where it’s going to go, but nobody wants to be attracting legal suits like this, and compliance departments all over the industry will be being strengthened as a result.”
Richard Gadd and Jessica Gunning in a scene from Baby Reindeer.Credit: Ed Miller/Netflix
As a genre, based-on-real-life television may well have eclipsed scripted content in terms of global reach. Enduring quality brands like HBO and Apple TV+ may still have the market cornered in terms of blue-chip fiction, but the tendrils of based-on-real-life TV reach deeply into the medium, from the inner world of the Kardashians to the British drama Mr Bates vs The Post Office.
That series, about a devastating real-life government scandal in which faulty software created apparent cash shortfalls in British post offices which then prompted the government to pursue improper prosecutions for fraud, made a tectonic landing in the schedule earlier this year.
“It was not only an unusual idea for someone like [British broadcaster] ITV to get behind in the current [market], but they got behind it in the most spectacular way,” Anderson told the industry forum, noting that the January premiere of the series in the UK – a time when inclement weather tends to boost TV audiences – gave the series a thermonuclear launchpad.
“The program went out to the maximum possible audience and had the maximum possible effect,” Anderson said. “It has already brought in legislation, about 100 sub-postmasters have had their convictions overturned [and] the woman who was head of the post office, who had been awarded [a knighthood] handed it back.
Monica Dolan plays former subpostmaster Jo Hamilton, wrongly accused of stealing £36,000, in Mr Bates vs The Post Office.Credit: Seven/ITV
“It’s lifted a lid on institutional failure, [and] people overseeing a system that was clearly wrong but would not face up to the shortfalls in their own system and would rather blame the sub-postmasters at the end [who were] being prosecuted for theft when they were absolutely innocent.”
Creating a visual narrative for that story in documentary would have been challenging, journalist Chiara Avesani, who works for the Italian public broadcaster RAI, told the forum. “If you were thinking of doing a documentary about that you would need animation or reconstruction, so I believe there is a reason why some important current affairs topics can be more impactfully conveyed through fiction,” she said.
But understanding the complexities of how and where Baby Reindeer slid off the rails requires an approach from a number of pathways, the forum was told. And the fallout creates barriers to entry for producers who will now tread more carefully.
Critically, Baby Reindeer opens with text which proclaims it to be a true story, but the closing credits include text in which the series concedes they have fictionalised events and characters.
In the aftermath of the series’ launch, a succession of scandals engulfed the series, including a wave of social media amateur sleuths who quickly deduced who the real-life counterparts to the show’s fictional characters were. Threats of lawsuits – and one very hefty actual lawsuit – followed.
1895 Films chief executive Tom Jennings told the forum that the boundary between fact and fiction must always be clear. “You can’t start out the film saying this is a true story and then make up a bunch of stuff that didn’t really happen or create characters. It is either a true story or it’s not,” Jennings said.
Jennings uses an early cinematic example: the 1958 film A Night to Remember, which is based on the 1955 book of the same name by Walter Lord, and recounts the final night of the Titanic’s maiden voyage in 1912.
Kenneth More in A Night to Remember (1958), the story of the sinking of the Titanic.Credit: Norman Gryspeerdt
“Walter Lord highly researched that book and the movie played [the book] to a tee and there’s only one conglomerate character in there, everything else was as accurate as it possibly could be,” Jennings said. “And even that film, which I consider one of the most historically accurate films [ever made], didn’t start out by saying this is a true story, they just let it play.”
In contrast, Anderson added, Baby Reindeer “feels like one of those moments where the envelope has just been pushed too much”.
“They had everything there, they just couldn’t resist claiming this was the truth when it isn’t. Which is terribly sad because it’s an amazing work of art, it’s a huge achievement. It’s very powerful, it’s very emotional. It tells a really disturbing story.”
Even in the most rudimentary documentary re-creations, producers are exposed to risk when they hire actors to play real-life figures in dramatic re-creations. Doubly so when the re-creations tap into criminal activity. “At first it was a guy sitting at a desk with a pen, the re-enactments were at a very low level, but then they got better at it, and then they got really good at it,” Jennings said.
In 2003, in the US state of San Diego, an actor was arrested twice in the same week after playing a nanny wanted on fraud and arson charges in a re-enactment on the series America’s Most Wanted. In 2013, in Germany, an actor was arrested after playing a jewel thief in the German adaptation of the same program, Aktenzeichen XY.
“They were literally getting locked up sometimes for days because people were so convinced that their next door neighbour was a serial killer from Boston,” Jennings added. “There was nothing they could do about it. Talking about blending fiction and reality … it became a really serious thing.”
At the heart of the issue, Jennings said, is pressure from streaming platforms on program producers to provide the “100 per cent factual” stamp which gives content a marketing kick in a market which is hungry for true crime, or real-life stories.
“There’s this great pressure from network executives and streamers to say this is a true story based on actual facts; they want that label at the top even when you know that things are going to be skewed,” Jennings said. “Because you’re selling a bill of goods from frame one to the audience, either it is or it isn’t. If you’re going to make stuff up, fine, but don’t say this is a true story.”
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