The "true crime" genre is a popular staple of the American entertainment diet. True crime documentaries, TV shows, movies, podcasts, and the like are ubiquitous, and indeed, the genre has its own TV network. But publishing true crime stories comes with litigation risk, and a recent decision in a case against popular streaming service Netflix serves as a reminder of an important one: claims by incidental or minor characters in the story.
The subject of the true crime story in this case was Caleb McGillvary, who rose to internet fame after a video called "Kai the Hatchet-Wielding Hitchhiker" went viral on the internet in February 2013. In the video, McGillvary describes a bizarre sequence of events to a TV reporter, beginning with his being picked up while hitchhiking, and ending with his attacking the man who picked him up with a hatchet to defend a woman that man had attacked. The video was so popular (due to McGillvary having been credited with coming to the woman's rescue) that it landed him a guest appearance on Jimmy Kimmel Live! a few days after the event.
But McGillvary's meteoric rise to internet fame quickly turned to infamy after he was arrested for the murder of New Jersey attorney Joseph Galfy in May 2013. A jury convicted McGillvary of first-degree murder on April 1, 2019.
On January 10, 2023, Netflix released the documentary The Hatchet Wielding Hitchhiker, which tells McGillvary's story. As released, the documentary included brief segments showing screenshots from internet postings, including a June 2019 Instagram post by a Kentucky man named Taylor Hazlewood, in which Hazlewood is holding a hatchet.
Hazlewood sued Netflix shortly after the documentary's release, claiming that he had no connection to McGillvary or the murder, and that the documentary's use of his Instagram post depicted him in "a sinister and defamatory light." This was so, according to Hazelwood's complaint, because the phrases "stone-cold killer" and "You can never trust anyone" are heard as his Instagram photo is displayed on the screen during one brief segment towards the end of the documentary. Hazlewood alleged that the juxtaposition of his Instagram post and the audio would cause a reasonable viewer to connect him to McGillvary and "his brutal murder of Joseph Galfy." He sued Netflix for defamation, invasion of privacy, and misappropriation of likeness in Texas state court, and Netflix removed the case to the U.S. District Court for the Northern District of Texas.
Netflix moved to dismiss the claims, advancing several arguments for why the documentary's use of Hazelwood's Instagram post wasn't actionable. The district court dismissed Hazelwood's misappropriation of likeness claim but allowed the defamation and invasion of privacy claims to proceed.
The court's decision allowing the defamation and invasion claims to proceed is cursory, and raises more questions than it answers about the court's interpretation of Texas defamation and privacy law. For example, the district court seemed to defer almost entirely to Plaintiff's allegations on the question whether the use of the Instagram post—in the context of the documentary as a whole—was capable of defamatory meaning. Texas law (like that in other states) treats this as an issue of law that the court (rather than a jury) must resolve. But in resolving this issue, the district court cited Hazlewood's allegations that friends and co-workers had expressed concern to him about the use of his photo in the documentary as evidence that the post's use was capable of defamatory meaning. As a question of law, and one implicating free speech rights, the alleged reaction of a handful of friends and co-workers should never be a factor in resolving whether a statement (or in this case, use of a photo) is protected by the First Amendment.
The district court was similarly deferential to Hazlewood's allegations in allowing the invasion of privacy claim to proceed. For this claim Hazlewood alleged that the documentary filmmakers intruded upon his solitude, seclusion, or private affairs by using Hazlewood's Instagram post in the documentary. This theory of liability, although couched as intrusion upon seclusion, is really a false light claim, which Texas law does not recognize. Nevertheless, the court allowed the claim to proceed, finding that because Hazlewood had alleged that his Instagram account was private, there was an issue of fact.
Netflix will now have to engage in potentially costly discovery for what are legally dubious claims. So why, then, did The Hatchet Wielding Hitchhiker's makers include Hazlewood's Instagram post? Indeed, Hazlewood alleges throughout his complaint that he has no connection to McGillvary, and that the June 2019 Instagram post itself, which bore the caption "Hatchet by Gary Paulsen," was unrelated to McGillvary's April 2019 conviction. Netflix's motion to dismiss, and the post's use in the documentary itself, hint at an answer, which is that the filmmakers found the post on the internet and liked how it presented as emblematic of McGillvary's internet fame.
Even if the filmmakers were wrong in their assumption about Hazlewood's intentions when making the Instagram post, their error does not, in and of itself, make the use defamatory. And given the context in which the post appears in the documentary, there is very little support for the conclusion that it defamed Hazlewood or that Netflix invaded his privacy. Nevertheless, the lawsuit serves as a good reminder to true crime publishers to be mindful of how statements (or in this case photos) of minor or incidental characters are used in such stories, and to consider the risks and cost-benefit of including them in the final publication.
