Can I Get Sued for Portraying Real People in a Film? (England and Wales)

Yes. If you make a film, documentary or drama about real people in England and Wales, the people portrayed can sue you. You do not need their permission, but how you portray them matters. Many guides online describe American ideas such as "actual malice", "false light" and the "right of publicity". None of these is part of English law.

Defamation

Defamation is the main risk for any production that says or implies something damaging about an identifiable living person. Films are a permanent form, so they are treated as libel. Under section 1 of the Defamation Act 2013, a statement is not defamatory unless its publication has caused, or is likely to cause, serious harm to the claimant's reputation. For a business trading for profit, serious harm means serious financial loss.

In Lachaux v Independent Print Ltd [2019] UKSC 27, the Supreme Court held that serious harm must be proved from the actual impact of the statement, not just the meaning of the words. That impact can be inferred from the meaning, the scale of publication and who saw it.

A person can be identified without being named, through their job, location, events or a recognisable likeness. Deceased people cannot be defamed in English law, and their families cannot sue on their behalf. However, a film about a dead person can still defame living people connected with the story.

Defences

• Truth (section 2): you must prove that the imputation conveyed is substantially true. You need evidence such as documents, court records and witnesses, not just belief.
• Honest opinion (section 3): the statement must be recognisable as opinion, indicate its basis, and be an opinion an honest person could hold on facts that existed at the time. It fails if you did not actually hold the opinion.
• Public interest (section 4): the statement must be on a matter of public interest and you must have reasonably believed publication was in the public interest. Courts allow for editorial judgement but look closely at research and whether the subject was given a chance to respond.

Claims must normally be brought within one year of publication (Limitation Act 1980, section 4A), although the court can extend this. Under the single publication rule in section 8 of the 2013 Act, the year usually runs from first publication, not each new screening, unless a later publication is made in a materially different manner, for example with much greater prominence or reach.

Misuse of private information

Privacy claims can arise even where everything shown is true. In Campbell v MGN Ltd [2004] UKHL 22, the House of Lords, by a 3–2 majority, found for Naomi Campbell over published details and photographs of her treatment at Narcotics Anonymous. She had accepted that the newspaper could report that she was a drug addict having therapy, because she had publicly denied it.

The Supreme Court in Bloomberg LP v ZXC [2022] UKSC 5 confirmed a two-stage test:

1. Did the person have a reasonable expectation of privacy in the information, judged objectively in all the circumstances?
2. If so, is that outweighed by the publisher's right to freedom of expression?

The court also held that, as a legitimate starting point, a person under criminal investigation has a reasonable expectation of privacy in that information before being charged. Health, sexual life, family and finances are high-risk areas. Invented private scenes can still engage privacy if they suggest private information about a real person.

Data protection and the journalism exemption

Researching and portraying real people involves processing personal data under the UK GDPR. Schedule 2, paragraph 26 of the Data Protection Act 2018 exempts processing for journalistic, academic, artistic or literary purposes from many of the usual rules. This applies where the processing is carried out with a view to publication, you reasonably believe publication is in the public interest, and you reasonably believe complying with the rule would be incompatible with those purposes. Relevant codes, such as the Ofcom Broadcasting Code, must be taken into account.

No general "image right"

English law gives no general right to control the use of your name or likeness. In Fenty v Arcadia Group Brands Ltd [2015] EWCA Civ 3, the Court of Appeal confirmed this, but upheld Rihanna's claim in passing off because Topshop's t-shirt bearing her image was likely to make fans think she had endorsed it. For film-makers, the risk is mainly in marketing: posters, trailers and merchandise must not falsely suggest that a real person endorsed or took part in the production.

Malicious falsehood and other claims

• Malicious falsehood: a false statement made maliciously, meaning knowing it was false or reckless as to whether it was, that causes, or is likely to cause, financial loss. It does not require damage to reputation and has the same one-year limitation period as defamation.
• Breach of confidence: using information obtained in confidence, such as leaked documents.
• Contempt of court: once criminal proceedings are active, a publication that creates a substantial risk of serious prejudice can be contempt, even if unintended (Contempt of Court Act 1981, section 2). Check before releasing anything about a case that is still live.
• Anonymity orders and statutory anonymity: complainants of sexual offences have lifelong anonymity (Sexual Offences (Amendment) Act 1992, section 1), and courts can make orders protecting children and others. These bind dramatisations as well as news reports.

Dramatisations, composites and disclaimers

Docudramas often invent dialogue, compress timelines or create composite characters. Each change can create a meaning about a real person that you must be able to defend. A disclaimer such as "some scenes have been dramatised" can help show viewers what is fact and what is invention, but it will not stop a scene from being defamatory or intrusive if it conveys a damaging factual meaning about an identifiable person. A "names have been changed" note does not help if the person is still recognisable.

Clearance and insurance

• Legal review: have the script and final cut legally reviewed, and keep an annotated script linking each factual claim to its source.
• Right of reply: put significant allegations to the people concerned and record their responses. This is central to a public interest defence.
• Releases: written consent reduces privacy and data protection risk, though it is not legally required.
• Broadcast rules: UK broadcasters must comply with the Ofcom Broadcasting Code, including Section 7 (fairness) and Section 8 (privacy).
• Errors and omissions (E&O) insurance: distributors and broadcasters usually require it. Insurers will want to see the clearance process, so start it early.

Key points

• You do not need permission to portray a real person, but you can be sued over how you portray them.
• Defamation requires serious harm and has defences of truth, honest opinion and public interest. Claims must usually be brought within one year.
• True information can still found a privacy claim if there was a reasonable expectation of privacy that outweighs freedom of expression.
• There is no image right in England, but false endorsement can be passing off.
• Disclaimers do not cure defamatory or intrusive scenes. Legal clearance, right of reply and E&O insurance are the main protections.