Motions Denied: Netflix Still Going Head-To-Head With Chess Grandmaster
After more than a month of waiting, moves have finally been made in the match between Nona Gaprindashvili and Netflix, Inc. [For extensive background on the case, see “The Law Is Not Black and White: The Queen’s Gambit Faces Chess Grandmaster,” a piece published in the December 2021 issue of Three Point Shot.]
As a quick refresher, Nona Gaprindashvili (“Gaprindashvili” or “Plaintiff”), a 80-year-old Georgian woman and also the first female chess player to be awarded the title of Grandmaster in 1978, filed a complaint in a California district court in September 2021 against Netflix, Inc. (“Netflix” or “Defendant”) for false light invasion of privacy and defamation per se as a result of an alleged “manifestly defamatory” line (the “Line”) of dialogue about her in the final episode of the hit miniseries The Queen’s Gambit. The scene at issue takes place while the main character, Elizabeth Harmon, plays at the fictional Moscow Invitational of 1968. There, a tournament announcer speculates that Harmon’s male opponents likely would not have adequately prepared to compete against her. The announcer explains:
“As far as they knew, Harmon’s level of play wasn’t up to theirs. […] Elizabeth Harmon’s not at all an important player by their standards. The only unusual thing about her, really, is her sex. And even that’s not unique in Russia. There’s Nona Gaprindashvili, but she’s the female world champion and has never faced men. My guess is Laev was expecting an easy win, and not at all the 27-move thrashing Beth Harmon just gave him.” [emphasis added]
Plaintiff alleged the language is false and “manifestly defamatory” – as she claims she had played matches against the world’s best male chess players by the year 1968, the year of the fictional Moscow Invitational, and thus the dialogue impugns her.
Following the filing of plaintiff’s complaint, in November 2021, and in defense to Gaprindashvili’s claims, Netflix filed a motion to dismiss or, in the alternative, a motion to strike under California’s anti-SLAPP (strategic lawsuits against public participation) statute. Both Gaprindashvili and Netflix slid some pieces around the board in December 2021, with Gaprindashvili filing opposition papers and Netflix its reply.
After considering the parties’ arguments, the Court ultimately denied Netflix’s dismissal bid and allowed Gaprindashvili’s defamation claim to proceed. If Netflix was looking for a game of speed chess, the Court’s order indicated that it best remain seated. (Gaprindashvili v. Netflix Inc., No. 21-07408 (C.D. Cal. Jan. 27, 2022)).
Netflix gained an early advantage when the Court dismissed Gaprindashvili’s claim for false light invasion of privacy. Under California law, a false light invasion of privacy claim “must relate to the plaintiff’s interest in privacy.” In this case, and to the contrary, the Court reasoned the problematic Line had little to do with Gaprindashvili’s private life; rather, it directly and utterly related to her very public and professional life. Thus, because Gaprindashvili failed to plead the publication of the Line “intrudes” into her private life, the Court dismissed the false light invasion of privacy claim.
At this early point in the litigation, however, Netflix’s defense was not stout enough to repel Gaprindashvili’s defamation cause of action. To establish a claim for defamation per se, a plaintiff must meet different criteria, none having to do with privacy. For example, the Court noted that under California law, a “[p]laintiff must plead (a) a publication that is (b) false, (c) defamatory, and (d) unprivileged and that (e) has a natural tendency to injure or that causes special damage.” Lastly, if a plaintiff is a public figure, a litigant “must also plead the requisite constitutional malice” to have their claim upheld.
In its defense, Netflix argues Gaprindashvili fails to plead all the elements of her claim. First, Netflix contends the Line is not false, “as a reasonable viewer would not believe the Line conveyed an objective fact.” To support this contention, Netflix points to the fictional nature of the work and the presence of a disclaimer that runs during the end credits of every episode. Second, Netflix avers “the Line is not defamatory because it contains no defamatory implication.” Rather than implying the Line to mean Gaprindashvili was inferior to men at the time, Netflix argues the Line merely implies Gaprindashvili had “never faced men” because of the structural barriers in place during the 1960s Cold War era. Third, Netflix asserts the Line is privileged, as it “falls under the ‘substantial truth’ defense.” Although the Line may not have been entirely accurate, Netflix argues Gaprindashvili’s participation in high-level chess tournaments against men largely occurred in the 1970s, a few years after the portrayed fictional Moscow Invitational. Fourth and finally, Netflix proclaims Gaprindashvili “cannot plead the requisite ‘actual malice,’” as the network conducted diligent research and even hired two chess experts to confirm historical details.
The Court, in considering the elements, ruled “the fact that the series was a fictional work does not insulate Netflix from liability for defamation if all the elements of defamation are otherwise present … The test is whether a reasonable viewer would understand the character to be the person identified and to have the characteristics as described.” The Court further elaborated “the context in which the statements were made and … the content of the statements themselves” can be helpful in determining what the reasonable viewer might understand when hearing the Line. Throughout the miniseries, real people and events are referenced. Gaprindashvili’s name is spoken not only at the Moscow Invitational of 1968, a clear contextual reference to her real life career as a professional woman chess player, but in a moment where the camera fixates on an actress who bears a physical resemblance to her. As a result, the Court ruled the Line “is reasonably susceptible of an interpretation which implies a provably false assertion of fact” and viewers may reasonably have believed the Line to be a historical detail incorporated into the series.
Furthermore, the Court determined, in its consideration of the elements, it is plausible for the Line to have a defamatory implication. The Court stated, at a minimum, the Line is “dismissive of the accomplishments central to Plaintiff’s reputation” and, given Plaintiff’s allegations, it not only tends to diminish Gaprindashvili’s historical accomplishments, but also may plausibly harm her reputation and negatively affect her ongoing professional chess career.
The Court was unconvinced of Netflix’s “substantial truth” defense as well. The “substantial truth” defense protects a party from the consequences of making an allegedly defamatory statement if the statement is slightly inaccurate in its details but conveys the same “gist or sting” as an accurate statement would have conveyed. The Court found Netflix misapplied the defense in this case, as an accurate account of Gaprindashvili’s accomplishments would have had “an entirely different ‘effect on the mind of the reader.’” Viewers would have envisioned “Plaintiff as a trailblazer that [main character and rising champion] Beth Harmon followed, or another woman chess player on a parallel path” as Harmon.
Lastly, as to the actual malice standard, the Court agreed with Gaprindashvili that evidence showed Netflix might have known the Line was false or “acted in reckless disregard of whether it was false or not,” rejecting Netflix’s lack of malice argument. The Court was ultimately swayed by Plaintiff’s allegations that anyone with knowledge of chess history knows of Nona Gaprindashvili’s achievements and “[a]ny simple Google search” would have revealed the truthful information.
Another of Netflix’s pieces fell when the Court similarly rejected its anti-SLAPP motion to strike. Here, the Court denied the motion to strike because it found Plaintiff had stated a legally sufficient defamation claim and made a prima facie factual showing that she had a reasonable probability of success on the merits, evidence which Netflix failed to overcome at this stage of the litigation.
With the Court having declined to dismiss the case, stay tuned to see this match escalate. At the beginning of the month, Netflix appealed the district court’s ruling to the Ninth Circuit. Gaprindashvili may not be the protagonist of The Queen’s Gambit, but at least for now, her early strategy and pawn structure have placed Netflix in a bind.