Defamation Lawsuit Against Netflix Over ‘Afflicted’ Docuseries Allowed to Proceed
A state appellate court has turned down Netflix’s bid to dismiss a lawsuit brought by subjects of docuseries Afflicted who say they were defamed when the show misrepresented their chronic illnesses.
In a unanimous decision from the Second Appellate District, the panel ruled that the consent releases the subjects signed aren’t enforceable because they were lied to and pressured to waive their rights not to be defamed. It found that plaintiffs can pursue claims over misrepresentations in the documentary that “were reasonably susceptible to an interpretation that defendants were portraying [their] illnesses, and accompanying physical symptoms, as not the result of any underlying, diagnosable medical condition, but rather as either the product of [their] imaginations or some mental disorder.”
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Netflix is no stranger to defending itself from accusations of defamation. Whether the other side is a police officer in a murder investigation or a close acquaintance of Donald Trump, the streamer is being besieged by lawsuits alleging it’s flouted libel laws. This is at least partially because of its interest in pushing nonfiction and true-crime content, which regularly rank among the most viewed shows on Netflix’s catalogue at a fraction of the cost of scripted content. Roughly 64 million households watched Tiger King in the first month of its debut in 2020, per Netflix’s internal metrics, and more than 30 million tuned into Love is Blind during the same timeframe.
Netflix is typically able to prevail in defamation cases, often early on, by claiming fair reporting privileges and utilizing a statute that compels the dismissal of lawsuits that attempt to chill free speech. It enjoys the same liberties as news organizations that claim First Amendment rights.
But a panel of three judges on the Second Appellate District rejected an appeal from Netflix to overturn an L.A. judge’s ruling allowing subjects of Afflicted to proceed with claims that they were defamed.
The series explores people suffering from and attempting to treat chronic illnesses in addition to the struggles of their caregivers. One of the subjects suffers from Hashimoto’s thyroiditis, an autoimmune disease, and has been diagnosed with multiple chemical sensitivity. Another suffers from myalgic encephalomyelitis, also known as chronic fatigue syndrome. While some episodes seriously examined the illnesses, others advanced narratives that the conditions were actually psychosomatic.
Afflicted had a controversial reception. In an open letter to Netflix issued in September 2018 that was signed by Lena Dunham and Monica Lewinsky, doctors, scientists and filmmakers accused the streamer of misrepresenting chronic illnesses portrayed in the show.
Documentary filmmakers typically enjoy the freedom to distort and manipulate storylines to weave cohesive narratives. Afflicted production company Doc Shop Productions, which partnered with Netflix to create the series, said it obtained releases from subjects, who acknowledged that their portrayal in the series may be “disparaging, defamatory, embarrassing, or of an otherwise unfavorable nature to [plaintiffs] and may expose [them] to public ridicule, humiliation, or condemnation.” The agreement waived their right to pursue “any and all claims, judgments, interest, demands, losses, liabilities, causes of action.”
But the Second Appellate District found the releases void. According to the order, producers Peter LeGreco and Stephanie Lincoln represented the waivers as mere formalities or routine paperwork when they were comprehensive agreements signing away patients’ legal rights. They also falsely characterized the series as a serious documentary about chronic illness that would raise awareness of conditions and serve to educate the public.
The panel pointed to allegations that the showrunners presented the documents to the subjects at the last minute when they were too ill or tired to understand the significance of what they were signing.
Statements that could be implied to constitute defamation include numerous statements from health care professionals who said that the subjects suffer from psychological issues rather than physical ailments, according to the order.
In the third episode, a mood disorder specialist remarks, “I have had a few patients who became so identified with their illness that they really weren’t willing to be cured.” A psychiatrist then opines that “[Y]ou have to entertain the hypothesis that this is not a physical problem, but this is an emotional one.”
The panel of judges wrote: “The undisputed facts concerning plaintiffs’ diagnosed medical conditions, when contrasted with the show script excerpts and aired version of Afflicted, were sufficient to constitute a threshold showing that defendants could be reasonably understood as falsely implying that (1) the four sick plaintiffs were imagining their illnesses due to some psychological or mental condition and (2) their caregivers were gullible pawns or enablers who had been duped into providing care for persons who did not need it.”
Media law attorney Daniel Novack observes that the ruling may set a dangerous precedent contravening established law on the artistic liberties documentarians enjoy. “You find the narrative in the editing room,” Novack says. “They’re basically saying you can’t do that anymore. You can’t learn that there’s something better and pivot without going back to these people.”
Alan Dershowitz’s defamation lawsuit against Netflix over his portrayal in Filthy Rich, a docuseries exploring convicted sex offender Jeffrey Epstein, may serve as an illustrative example of how the ruling could impact similar lawsuits. In that case, Dershowitz also took issue with how series showrunners represented the documentary to him when he agreed to be interviewed. Although the Harvard Law professor in March agreed to drop his lawsuit, the judge overseeing the case may have viewed his claims more favorable if it was forced to adopt the Second Appellate District’s reasoning over fraudulently induced releases.
Courts have typically erred on the side of enforcing contracts when their validity is at issue. Sacha Baron Cohen, for example, has prevailed in numerous defamation lawsuits from subjects he’s duped despite arguments that he lied to get them to sign the releases.
“That evidence of fraud has been tried before and rejected in those cases,” Novack says. “In the past, it’s been allowed. These are not children that are being induced to sign things. These are adults. You let people live with the consequences of their contracts.”
Novack concludes, “If you give people a right to veto the way they’re portrayed, the concept of reality TV falls apart.”
