in fact, the next day, he apologised for doing that. and when paul was recording this interview, he didn't know the controversies that would follow in the coming hours and days. so, in every general election, the tonight programme does a series of profiles of all the main party leaders in britain and so, those conversations begin pretty much as soon as the election is called. so, we start having a conversation with the conservative party, in this case, and saying, "here are the days that we could do. "is he available on any of these days? "this is the date when we'd like to broadcast "the programme. "therefore, we have this amount of time to actually put the programme together," and the conversation goes from there. when did the date of last week come up? so, by wednesday of last week, we still didn't have a date with the prime minister. and on that wednesday, they offered the thursday and said that it was the only slot available. the thursday didn't particularly suit us, actually, as a programme, because that is almost a week before we go to air~ — we like to record the interview a little bit closer to air — as we've seen, elections move pretty quickly — so we'd actually prefer to do it on either the friday or the sunday, but we were told thursday was the only option and, obviously, we don't get a say in that. and when they suggested thursday, did you or one of your colleagues go, "that's the d—day commemorations"? did you register that that was perhaps an unusual time to suggest? we didn't know what his schedule was at that point, so we weren't actually aware that he was going to be cutting those commemorations short to fly back. we were given a time, which was in the afternoon on thursday, but we arrived at that interview not really, in all honesty, realising the significance of what was about to unfold. well, since doing the interview, you've released a clip of the prime minister arriving for the interview. let's just hear a little bit of that. prime minister. gosh, hello! good to see you. very nice to see you! sorry to have kept you. no, not at all. i know you've been in normandy. yeah. it alljust ran over. of course. it was incredible but itjust ran over everything... - i'm sure it was... so, apologies for keeping you. no, not at all. i'm sure it was a powerful trip. imean... tell us the decision—making process behind that because the prime minister might�*ve thought that at that stage, he was greeting you, not necessarily being recorded. so, from our point of view, we made it clear, actually, to his team that we would be recording his arrival at that interview. it's part of the colour of building a programme. so, when you're trying to profile a leader, as we do — and we like to show the more personal side of the leader as well as their policy proposals — of course, you want that kind of behind—the—scenes essence of an interview, too. so, as you'll see, for example, quite often in party conference interviews that your political editor will do and our political editorwill do, often, you do set up a wide shot so you get that greeting, you get the handshake, and itjust helps the story along because you can get into that interview from that point. so, we made it abundantly clear that we were recording that moment, so there shouldn't have been any surprise. and i wonder, you have had this in the can for close to a week. has it been — you know, you've been sitting there, thinking, "i'd quite like to get this out". did you think about bringing it in earlier? no, in all honesty, because the approach that we take to these profiles is quite different. so, we do see them as much more of a personal profile of a leader. we do a much sort of broader look at the leader in a way that kind of tells their back story with vts and video. it's notjust a sit—down interview that's cut together. not that there's anything wrong with that, of course — it's just different formats for different platforms. some people might say it's a softer approach. is that fair, or...? i wouldn't say it's soft. it's just a more holistic approach where we try to bring back, bring together — we don't assume any knowledge that people might have about a leader. we try to bring together their whole story about their personality and their politics and their policies in the election. do you think that's something that both politicians and journalists are keener on doing now than, perhaps, they might�*ve been ten years ago or 20 years ago? maybe, but i think they also see the pitfalls of it, right? i mean, rishi sunak, this morning, the clip that we put out is talking about what he missed out on in childhood, and he says "sky tv". and some people have leapt on that as an example of him being out of touch. theresa may had the same problem when she talked about running through fields of wheat as her naughtiest moment, right? so, yes, in some instances, politicians like to be able to get across their personal backstory. and we certainly hear rishi sunak talking a lot, don't we, generally, about his mum being a pharmacist, his dad a gp and, likewise, keirstarmer — son of a toolmaker, etc. they want to do that. but i think they are also aware that there are dangers in doing that, too. now, next on the media show, we're going to talk about the netflix series baby reindeer. and if you're a regular viewer, you'll know this isn't the first time that we've talked about this. but there's a good reason we keep coming back to this story because it raises a number of issues that are relevant, whether you've watched it or not. plenty of people won't have seen the programme but there is actually a wider question for us all because there are rules for traditional broadcasters when it comes to how real people are treated. but with the advent of the streamers and the fragmentation of the media, you know, the law, the guidance is — looks like it's playing catch—up. so, you know, questions around can the streamers now write stories about any of us and claim that it's a true story and there's nothing we can do about it? and, of course, it throws up other ethical questions — you know, one person's right to tell their story against another person's right to privacy. and if you haven't watched the series, baby reindeer tells the story of how the scottish comedian richard gadd was stalked and harassed by a woman after serving her in a pub. his stalker — named martha in the series — allegedly sent him more than 41,000 emails and left 350 hours of voicemails on his phone. she also turns up at his home and workplace in the series. this is a clip of the programme. every day now, martha would be outside, this ticking time bomb on my life. i would leave first thing in the morning and she would be there. i love you, nipple! think of me at work today! now, in the opening sequence of the first episode of baby reindeer, we're told this is a true story. at the end of the series and the end credits of each edition, the programme says it's based on real events. however, certain characters�* names, incidents, locations and dialogue had been fictionalised for dramatic purposes. and now, katie, we have a further development in the story. we do, because fiona harvey — she's the woman who alleges that she's the inspiration for the stalker character, martha, in the netflix drama — she's suing netflix for defamation, negligence and privacy violations, and that court document was filed just at the end of last week. she claims that she was falsely depicted as a convicted criminal who spent her time in prison for stalking and she's calling the claims that the story is true the "biggest lie in tv history" — that's in the court filing and it's definitely — it's got an american spin to it, that filing. there's no understatement in that whatsoever, in its many pages. her lawsuit was filed in california and she is seeking $170 million in damages. and netflix — it's important to say — first of all has never said that fiona harvey is, indeed, the inspiration for martha but it's also said it will defend this matter vigorously and will stand by the right of the show�*s creator, richard gadd, to tell his story. so, i suppose the question we want to ask today is does fiona harvey have a case? and i want to look at that first from a us law perspective, and we're joined by stuart benjamin, who is professor of law at duke university. stuart, thank you so much for coming on the media show. i wonder if you could just start with what fiona harvey is actually alleging in this lawsuit. so, her first and most important claim is a defamation claim — that they made false statements about her that injured her reputation. she made additional claims that might be less likely to win — intentional infliction of emotional distress, negligence, and violation of her right of publicity. i think my assumption — most people's assumption — is that the claim that she would be most likely to win on, as i suggested, is the defamation claim. and why is that? i mean, does she have a greater chance of winning a defamation case in the us than she does in the uk? cos, as i said, this was filed in the us. no. oh, no, no. uk law is much tougher on defamation plaintiffs. so, in particular, in the us, she has to prove the falsity of the factual claims made about her. in the uk, netflix would have to prove the truth of the claims about her. that's important because some of the claims are going to be hard to prove either way. how is anybody going to prove that she sat outside 16 hours a day, watching him walk in and walk out of his place of work? she has to prove that's false in the us and so, that is a higher burden for her. you might wonder, then, why is she bringing the lawsuit? well... that's exactly what i was going to ask — why is she not doing it in the uk? so, as we note in the — it's about deeper pockets. so, richard gadd, probably, there's a limited amount — she can't sue him for $170 million and she can sue netflix and so, she needs to sue netflix in the us — that's where they're located — in order to get, frankly, the bigger outcome for her. and if that disclaimer that ros was talking about that is at the end of the programme, does that help netflix�*s case at all, do you think? absolutely, it helps. having said that, because they said at the beginning, "this is a true story" — and not just there but also, on their website, repeatedly they say it's a true story, an snp mp john nicolson was told by a netflix executive, "this is a true story," a jury might easily say, "we think that disclaimer doesn't fully undercut "the degree to which you are making a factual claim". it's also worth saying that disclaimer comes up right at the end, after all the credits, and i'm not sure how many people stick to the very end of that. right. and just more generally, you know, you could imagine a situation in which i say repeatedly, "what i'm "about to tell you is true. "what i'm about to tell you is true", and then i say something, and then at the end, i say, "well, maybe "it's not true". you can imagine a jury saying, "well, those opening statements "are so strong, we think you're, in fact, making "a factual claim. " and what about if there's some truth in it? if she didn't send 41,000 emails but they proved she sent 10,000, does that — does magnitude matter? does it have to be wholly true? so, interestingly — so, the answer is if it's false, then she still can claim it's false. but she doesn't mention any of that in her complaint. her complaint is focused in particular that she was a convicted stalker who served a 4.5—year sentence and that she then pled guilty in the richard gadd case and was sentenced to a nine—month sentence. so, she's really focused on those factual claims. she has actually not talked about all of the things that got all the press — the many hours of voicemails, etc. she doesn't have to. and what about — i mean, i've been covering this story a lot, so i'm slightly in the weeds on this, but people might remember fiona harvey did an interview on the piers morgan show and told her side of the story. does that make a difference to the court case? was that a mistake, do you think? so, we have — our laws are guided by the first amendment and the supreme court has held that if you are a public figure, if you have injected yourself into some controversy, then the standard for you is higher in order to win a defamation case. you have to prove that the person who said the false statement either knew that it was false or was reckless about its falsity. i think that she has a strong argument here that she has not injected herself into any debate, that she was brought into this by many people on the internet who discovered who she was, and that the interview was just part and parcel of the lawsuit that she is bringing. if it was decided otherwise, then it's not clear who would be a private figure. i mean, does it mean any time that you bring a lawsuit and you do an interview about the lawsuit, you become a public figure? then we'd all be public figures. and we're talking about eye—watering sums — she's wanting $170 million. how realistic is that? is that a typical amount asked for in a defamation case in california ? in the us, the answer is, yes, sure. why not ask for a lot of money? let me just tell you — these cases generally settle and so, you are trying to anchor with a high opening bid, in effect, on the settlement negotiations. having said that, netflix would not be likely to settle if they thought she had no case whatsoever but they did say repeatedly, "this is a true story" and that does give her additional ammunition. professor benjamin, thank you very much indeed for giving us that us legal perspective. now, let's get a uk legal perspective. persephone bridgman baker is partner at the law firm carter—ruck. thank you very much indeed forjoining us here in the studio. if this had been brought in the uk, do you think a case could've been made? i think the most important thing, from the uk perspective - in comparison to the us perspective, is the amount of damages which one | would be able to seek. i mean, this is way over— and above what you would even be able to put down on your claim for — l in a claim for this sort in the uk, i and i think that's probably drivenj the decision to bring it in the us. so, what could you put in the uk? so, in the uk, damages. for defamation are pinned to the damages that you would expect for personal injury claims. _ so, you might expect in the low. hundreds of thousands maximum, really, for a defamation claim - in the uk courts — and, of course, our defamation claims are now overseen by a judge alone. - i think that possibly may have been an influencing factor— | here because juries are known to bej more sympathetic to human stories. i having said that, that could go i either way in this case, of course, because you have two individuals, both of whom have their - idiosyncrasies, and who knows - which way a jury might turn on that. but in relation to the differences in our standards of proof, - for example, as referenced| by stuart, i think the points that he makes all stand. here, you would havej to show that the story was substantially true —j and you referred to that when you asked about whether or not you have to get the exact numbers i of the emails right. i think here, it would be difficult to say that if you are — - if you have stalked somebody, if that can be demonstrated i that she has, in fact, done that — whether it's in exactly the way i that's replicated in the show —| i still think that there would be a possibility that netflix would be able to defend the claim here. i are there precedents for this kind of defamation case, where someone feels like a drama or a series which is based on a true story is clearly referencing them and not referencing them in an accurate way? so, there are a few such claims against netflix, l dating back to sort of, i suppose, the time i during which this true genre - of series has become more popular. so, in 2020, there was a claim against netflix in the us over. the central park five drama, - which was called when they see us. that was settled. in 2022, there was a claim about. the queen's gambit against netflix, and that was settled. and currently, netflix are defending a claimj about the show inventing anna, - and my understanding is that netflix have applied to strike that claim out as being groundless, - and a decision hasjust been made | by the us courts that the claimantj can continue with that case, so netflix has lost - that interim hearing. and, stuart, if i could bring you in on these previous cases that persephone is referencing, is it the case that a jury considering one claim such as this would be asked to consider previous claims which have been brought? so, they could. netflix's lawyers will clearly try to argue that that's irrelevant — it's "more prejudicial than probative" is the term that's often used — but, yes, absolutely. you would want to say this is a consistent pattern with netflix. they lie without remorse. and this is related to her claim for punitive damages — so, again, a difference between us and the uk — she is asking for more than $40 million in punitive damages. that would be designed to stop a wrongdoer who has done something that — a pattern of behaviour that is so egregious that the system needs to punish that person to stop that pattern. persephone, do we have punitive damages in the uk? so, you can obtain i aggravated damages. i think the doubling downl by netflix on this, i think, is potentially problematic. so, the fact that they have repeated that it's a true story — _ and, indeed, one of their senior executives was before - a parliamentary select committee i repeating that this is not only. a true story but also, _ that she is a convicted stalker — and so, that might play into an aggravated - damages—type claim. and i'm interested in the words the producers — netflix, in this case — put on screen. we've mentioned at the beginning of baby reindeer, it says, "this is a true story". every inventing anna episode began with these words — "this whole story is completely true, except for the parts "that are completely made up". persephone, does that help, if you put words like that at the front? i think that that being - at the forefront does help. and it's unusual, baby. reindeer, in that regard. saying "this is a true story" - upfront, ! think might be the death nail for netflix in this case. i'd like to bring in scott bryan here, tv critic, host of the must watch podcast on bbc 5 live and bbc sounds. hello, scott. hi. what's your take on the baby reindeer saga? i mean, when i first saw this drama, i thought it was incredibly compelling and it continues the sort of trend we've seen when it's been, like, sort of someone's story but they are in front of the camera as well as behind the camera. of course, we've had, like, fleabag, we've had michaela coel's i may destroy you as well, and there's an added edge when you see these sort of dramas because you really feel that there is a message that's clear from the creator that radiates through. but, i mean, as we've seen, it's felt like this has been a runaway train. no—one knows where it's going to end up. and it also, i think, at times, risks the sort of — the media buzz around the show eclipsing the initial success of the show to maybe netflix's detriment. because netflix wants the conversation to be about the tv programme and it'sjust not really ending up like that any more. thank you very much, indeed, scott, for your thoughts on baby reindeer. we're going to leave baby reindeer for one moment because between now and the end of the programme, we're going to turn to the evolution of reality tv — both talking about the kinds