Johnny Depp loses High Court defamation claim
In what has been described as the biggest English libel trial of the 21st century, world renowned actor Johnny Depp has failed in his claim against the publishers of The Sun newspaper and its Executive Editor, Dan Wootton.
The Court held that the articles published by The Sun, which claimed Depp was a "wife beater", were "substantially true".
On 1 June 2018, Johnny Depp brought an action in libel in respect of an article written by Dan Wootton first published online on 27 April 2018 under the initial headline "GONE POTTY How can JK Rowling be ‘genuinely happy’ casting wife beater Johnny Depp in the new Fantastic Beasts film?” A very similar article was also published in the newspaper the following morning, 28 April 2018, under the headline “How can JK Rowling be ‘genuinely happy’ to cast Depp after assault claim”. The articles followed allegations of domestic abuse first aired by Depp's then wife, Amber Heard, at the time of their divorce in 2016 when she had sought a Domestic Violence Restraining Order against him. The allegations had been publically denied by Depp at the time.
Depp claimed that the two articles made seriously defamatory allegations branding him a ‘wife beater’ who had committed serious assaults on Heard during their relationship and inflicted such serious injuries on her that she feared for her life. He claimed the articles were written with a deliberate purpose in mind, namely a plea to author JK Rowling that she should re-cast her latest Harry Potter movie without Depp, who was clearly unfit to work in the film industry at all, despite the fact that Depp had never been charged with any such allegations, let alone found 'guilty' as, it was alleged, the articles clearly presumed. Highly topical references had been made to the #MeToo and Time's Up movements and to the disgraced film mogul and serial abuser of women, Harvey Weinstein, suggesting that Depp was in the same category and purportedly quoting one of Mr Weinstein's victims in support of the comparison.
The Defendants, on the other hand, claimed the articles were true – a defence to the action of defamation. They relied on 14 alleged incidents which they contended showed that Depp was guilty of domestic violence against Heard.
In a whirlwind of publicity, the trial lasted 16 days with in person testimony from both Depp and Heard creating headlines. Across the global media there was a daily onslaught of photographs and graphic details of both the destructive relationship but also their past wrong doings.
What questions were before the Court?
The issues to be determined at trial were:
- The natural and ordinary meaning of the articles;
- Whether the claim satisfied the 'serious harm' requirement in s. 1 of the Defamation Act 2013 (the 2013 Act);
- Whether the articles were true, within s. 2 of the 2013 Act; and
- If the defence failed, the size of the award of damages and whether the Court should exercise its discretion to order a permanent injunction.
What did the Court decide?
In an extremely detailed judgment, Mr Justice Nichol found that Depp's claim failed simply because "the great majority of alleged assaults of Ms Heard by Mr Depp have been proved to the civil standard".
Whilst the Court had been considering the question of whether the claim would satisfy the 'serious harm' requirement, by the end of the hearing it was accepted by the Defendants' legal team that the articles would satisfy this and therefore no ruling was made to that effect. Given the ruling in the Defendants' favour the Court also did not consider the issue of the injunction.
The bulk of the ruling addressed the question of whether the articles were true, with Mr Justice Nichol finding that 12 of the 14 disputed incidents happened in the way that Heard (and the Defendants) had described.
In libel actions it is often the case that a party whose "truth" is being tested is not a party to the proceedings, as here where Heard was not a party (only a witness) yet was effectively Depp's opposition. This can cause issues with evidence available to the Court, with such third-parties having no obligation to make disclosure unless made the subject of a successful application for third-party disclosure. Mr Justice Nichol was not sympathetic to suggestions of unfairness to Depp made during the course of the litigation. He addressed this in the Judgment, saying that he assumed that Depp had been "advised as to the consequence of suing the Defendants against whom the claim is brought, but not Heard. It was a matter for him…., ... The consequences of him doing so, are that they (and not Ms Heard) are subject to the obligations of a party to make disclosure."
On the other hand, when addressing the weight of the evidence in front of the Court, Mr Justice Nichol was clearly persuaded by the Defendants' position. Whilst the Court had copies of recorded conversations where Heard and Depp both discussed a violent altercation, he felt that "no great weight is to be put on these alleged admissions by Ms Heard to aggressive violent behaviour". Instead, Mr Justice Nichol confirmed that the strength of a witness giving evidence in court under an oath outweighed the conversation which "in any event, according to Ms Heard had a purpose or purposes different from simply conveying truthful information". Further, the Court dismissed allegations that Heard was simply a gold-digger stating, in relation to the divorce settlement, that "her donation of the $ 7 million to charity is hardly the act one would expect of a gold-digger". Despite attempts by Depp's legal team to discredit Heard, she was found to be a credible witness.
Implications of the decision
Depp's aim in bringing this case was plainly to clear his name and reputation. The opposite has occurred and unless successfully appealed Depp will now need to live with the High Court judgment. Whilst the case brings little to defamation discourse it does serve as a serious reminder that when considering any defamation action a claimant needs to remember that a defence of truth will lead to substantial evidence being publicly analysed as to a claimant's conduct, sometimes explicit evidence as in this case, and consider very carefully whether starting defamation proceedings is the right strategic decision. Unless vindication and an injunction is genuinely required, the better decision may often be manage reputation outside of formal and very public and lengthy court proceedings.
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