Completely True, Except for the Parts That Were Totally Made Up: Was “Inventing Anna” Defamatory?
With the rise in popularity of documentaries and docu-series comes the rise in defamation lawsuits as real-life individuals watch their lives unfold on-screen. The most recent case involves Rachel DeLoache Williams, a former Vanity Fair photo editor and former friend of Anna Sorokin (also known as Anna Delvey) who is suing Netflix, Inc. for defamation and false light invasion of privacy for her portrayal in the wildly popular Shonda Rhimes production, Inventing Anna.
Inventing Anna tells the story of how Anna Sorokin conned and stole from New York City’s elite by pretending to be a German heiress named Anna Delvey. Her former friend, Rachel Williams, partook in some of the lavish lifestyle that Anna provided (think personal trainers, private jets and bottle service), but was ultimately conned herself out of $62,000, which was more than Williams’ annual net salary. After Rachel turned on Anna and collaborated with the police in May 2019, Anna Sorokin was convicted of grand larceny and theft of hundreds of thousands of dollars and sentenced to 4-12 years in prison. If you’re not familiar with the story, I highly recommend reading Jessica Pressler’s original article in New York Magazine because it is utterly fascinating.[1]
To succeed on a defamation claim in Delaware, Williams will need to prove that (1) Netflix included false communications of fact which (2) caused her material or reputational harm, and (3) given her status as a limited purpose public figure, Netflix acted with actual malice.
In regard to the first issue, Williams claims that “Netflix made a deliberate decision for dramatic purposes to show Williams doing or saying things in the series, which portray her as a greedy, snobbish, disloyal, dishonest, cowardly, manipulative and opportunistic person” and she points to 16 sets of allegedly defamatory statements that she claims she never said or never happened. For example, in one of the scenes, a friend states that Sorokin paid for Williams’ shoes, jacket, earrings, sweater, and bag (everything Williams was wearing at that moment), and she implies that Williams dropped Sorokin as a friend because Sorokin could no longer pay for Williams’ social life and clothes. Williams claims Sorokin never bought her clothes (other than a pair of yoga pants and black shoes) and this scene falsely portrays her as a “freeloader” and “a user and an opportunist,” who dropped Sorokin as a friend when she was no longer able to pay. But is this really defamatory? It should be noted that the series includes a disclaimer at the beginning of each episode that says, “This whole story is completely true. Except for the parts that are totally made up.” This disclaimer reminds you that you are watching a docu-drama and while the foundation of the show will be factual, they are going to be filling in the gaps with dramatic conversations for entertainment purposes. That said, the court will have the task of determining whether a reasonable viewer would interpret the show as conveying assertions of objective fact rather than a dramatization, particularly given this disclaimer.[2]
As far as material or reputational harm she suffered, Williams claims that “as a result of Netflix’s false portrayal of her as a despicable person, she has been subjected to a torrent of online abuse which has caused her personal humiliation, distress, and anguish, as well as damages to her earnings and/or potential earnings.” The damage to her reputation could have been avoided by giving her character a fictitious name and altering her character’s identifying details, which it did for several other characters. So why didn’t Netflix just change her name? The complaint suggests Netflix had a vendetta against Williams because Williams sold her rights to the rival Sorokin project being developed by HBO.
Lastly, Williams will need to prove actual malice by showing that Netflix knew the allegedly defamatory statements were false or acted with a reckless disregard for their truth. Williams’ complaint points to the fact that Netflix hired a researcher to investigate the story and Williams’ counsel sent Netflix multiple notices before the series was broadcast about her concerns that she would be defamed and cast in a false light.
This is not the first time that Netflix has run afoul of defamation issues concerning their blockbuster shows and it could have effects on how they approach adapting real life stories going forward. Williams’ attorney also represented Nona Gaprindashvili, a prominent female chess player in the 1960s, in a defamation suit against Netflix over a line in The Queens Gambit. In that case, Gaprindashvili claimed a character falsely stated that Gaprindashvili had “never faced men” when in fact she faced 59 male competitors in 1968, the year in which the series was set. The U.S. District Judge found that Gaprindashvili made a plausible argument that she was defamed because viewers might well leave the show with the false impression that Gaprindashvili had never faced men.[3] On the contrary, there was an appellate ruling in a similar case where actor Olivia de Havilland sued FX Networks for her portrayal in the series Feud. The appellate court dismissed the case finding that creators have significant artistic freedom in their depictions of real people.[4] This is clearly not a settled matter and plaintiffs will keep bringing claims, but the decision will ultimately rest with the courts to determine the merits of these claims on a case-by-case basis. With that being said, networks and production companies should take extra precaution when basing shows on real-life individuals to protect themselves from potential defamation lawsuits. As a fan of the many true-crime dramas cranked out over the last few years, including Inventing Anna, I selfishly hope these defamation suits don’t deter networks from touching on these real-life stories. Let’s be honest, it makes for amazing television.
This article is intended as a general discussion of these issues only and is not to be considered legal advice or relied upon. For more information, please contact RPJ Associate Ylana Stumer Hersh who counsels clients in areas of corporate, corporate finance, entertainment and intellectual property law. Ms. Hersh is admitted to practice law in New York.
[1] See How Anna Delvey Tricked New York’s Party People (thecut.com).
[2] See Mossack Fonseca & Co. v. Netflix, Inc., No. 19-CV-9330-CBM (ASx), 2020 (the court found that no reasonable viewer of the Film would interpret the Film as conveying “assertions of objective fact,” particularly given the statement at the beginning of the Film “BASED ON ACTUAL SECRETS” which sets the stage and the disclaimer at the end of the Film that states the Film is fictionalized for dramatization and is not intended to reflect any actual person or history).
[3] See Gaprindashvili v. Netflix, Inc., No. 2:21-cv-07408-VAP-SKx, 2022.
[4] See De Havilland v. FX Networks, LLC, No. B285629, 2018.