The Court of Appeal in California has declined to strike out a defamation claim brought by seven participants in the Netflix docuseries Afflicted. The series follows four sufferers of chronic illness and their family members on a ‘search for answers — and relief’.

The series garnered significant attention in 2018 when a group of activists, artists, filmmakers, physicians, patients and scientists penned an open letter to Netflix expressing concern about ‘its unethical treatment of its subjects’ and ‘questionable tactics’, including the decision to ‘advance a narrative [suggesting] these patients’ problems are primarily psychological’.

In August 2019, the participants in the series sued for defamation and invasion of privacy (amongst other causes of action), alleging that they were ‘duped’ into participating. They argue that the series ‘questioned the existence of chronic illnesses’ and portrayed them as ‘lazy, crazy, hypochondriacs and/or malingerers’.

The defendants moved to strike out the defamation and privacy claim, claiming it was barred by the personal release forms signed by the participants. However, the participants alleged that they had been pressured into signing the releases, told they would be cut from the series if they did not sign, assured that the releases were routine paperwork, or were too ill or tired when presented with the releases to understand them.

The trial court held that it was reasonable that a jury could find that the releases were obtained through a fraudulent misrepresentation about the purpose of the series. The Court of Appeal agreed – holding that the participants had met the required standard of ‘minimal merit’.

Misrepresentation is rarely raised as an issue by contributors to television content. This is normally because producers have ensured that they have provided them with accurate information about the programme and the nature of the contribution, in order to enable the individual to give informed consent. However, where there has been a misrepresentation, or where an individual has been put under pressure to consent, this may well enable contributors to argue that the release is invalid, and they can withdraw consent.