Johnny Depp’s libel win in the US versus Amber Heard and defeat in the UK against The Sun runs counter to received wisdom and precedent.
The US legal system favours defendants in defamation cases (in this case Amber Heard) for a number of reasons.
1: Freedom of speech is expressly protected in the US Constitution under the first amendment.
2: In the UK the onus is on the publisher to prove that a defamatory statement is correct. In the US the onus of proof is on the claimant to prove it is false. This makes it harder for claimants to win.
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3: In the US libel claimants must not only prove that a defamatory statement was false, but they must show that the publisher or person making it acted with malice (so had improper motives). This again raises the bar for what a libel claimant must prove if they are to win.
Depp’s win will have come as a surprise to some. However, a key difference is the fact that his defeat over substantially similar claims in the UK was decided by a judge – whereas the US trial was decided by a jury.
What Depp versus Heard means for publishers
For news publishers Depp versus Heard in the US is worth taking note of (even though the claim and counter claim were both made against individuals rather than publications).
The main take-home is that a seemingly decisive failed libel action in the UK does not stop a litigious claimant fighting and winning over the same issue in the US.
Johnny Depp versus The Sun and Dan Wootton: What happened?
The Pirates of the Caribbean star sued over a Dan Wootton comment piece published on 27 April 2018 which was initially headlined: “GONE POTTY How Can JK Rowling be ‘genuinely happy’ casting wife beater Johnny Depp in the new Fantastic Bests film.”
Wootton was reporting on claims contained in legal documents filed as part of Heard’s divorce fight with Depp.
He wrote: “Today I reveal a significant backlash from within the #MeToo and Time’s Up movement because the Scot is hellbent on backing her famous pal – despite his clearly inexcusable behaviour towards ex-wife Amber Heard.
“So let me be very clear for the benefit of an apparently unaware Ms Rowling: Overwhelming evidence was filed to show Johnny Depp engaged in domestic violence against his wife Amber Heard.
“She was granted a restraining order after alleging Depp assaulted her following a drunken argument and submitted photographs to the court showing her bruised face.
“So let me be very clear for the benefit of an apparently unaware Ms Rowling: Overwhelming evidence was filed to show Johnny Depp engaged in domestic violence against his wife Amber Heard.”
Depp lost after The Sun successfully argued in a UK court that the article was “substantially true” based on detailed evidence presented to court around 14 alleged incidents. The High Court judge said 12 of the alleged assaults were ” proved to the civil standard”.
Johnny Depp vs Amber Heard: Summary of the US case
Depp sued Heard over a piece she authored in the Washington Post published on 18 December 2018.
The jury ruled that three statements (including the headline, which she did not write) were defamatory, untrue and published with malice:
1: “I spoke up against sexual violence — and faced our culture’s wrath. That has to change.” [headline]
2: “Then two years ago, I became a public figure representing domestic abuse, and I felt the full force of our culture’s wrath for women who speak out.”
3: “I had the rare vantage point of seeing, in real time, how institutions protect men accused of abuse.”
Depp was awarded $15m in damages by the jury, capped at $10.35m by Fairfax County Court in Virginia.
Amber Heard vs Johnny Depp counter claim over Mail Online article
Heard won $2m in damages from Depp after a defamatory statement made by her former lawyer Adam Waldman was published by Mail Online on 8 April 2020.
He accused her of fabricating evidence of abuse by Depp.
“Quite simply this was an ambush, a hoax. They set Mr. Depp up by calling the cops, but the first attempt didn’t do the trick. The officers came to the penthouses, thoroughly searched and interviewed, and left after seeing no damage to face or property. So Amber and her friends spilled a little wine and roughed the place up, got their stories straight under the direction of a lawyer and publicist, and then placed a second call to 911.”
Why did Depp lose in the UK and win in the US?
When jury trials were common in the UK for libel actions it was rare for tabloid newspapers to win because juries would more often than not side with the public figure – especially if they were a popular celebrity.
It seems that a version of this phenomenon may have been at play here.
The US jury would also have been exposed to widespread commentary throughout the case on social media, which was overwhelmingly supportive of Depp.
It may also be significant that in the US Depp sued Heard (the individual) rather than the Washington Post (the publication) – especially when media titles like the Post and Mail Online, which was involved in the counter claim, have much more experience of fighting defamation actions than Heard.
Picture: Reuters/Kevork Djansezian/File Photo
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