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Canadian vs. U.S. Defamation Trials: What If Depp v. Heard Took Place In Canada? – Libel & Defamation


The Depp-Heard trial, which dominated headlines for weeks,
culminated in a decision awarding Johnny Depp $15 million for his
lawsuit and Amber Heard $2 million for her countersuit.

The media sensation and social media commentary surrounding the
trial has much to do with Depp and Heard’s celebrity status.
But with the public’s elevated interest in defamation, the
opportunity is ripe to compare what would be different about this
defamation trial if it took place in Canada1?

A good launch point for the discussion is Depp’s
unsuccessful libel claim in the U.K. since the principles informing
Canadian defamation law are largely drawn from the U.K.

Depp sued The Sun, a U.K. paper for an April 2018 article in
which Depp was described as a “wife-beater”. Of central
consideration was the meaning of the words and whether they were
true in substance and fact. Defamation law in the U.K. requires
that the defendant prove that the statements were true. In
contrast, the U.S. places the onus on the plaintiff to prove the
falsity of the statements. The U.K. judge found that most of the
allegations of abuse were substantially true and dismissed
Depp’s libel claim.

Then, Depp brought a $50 million defamation lawsuit in Virginia
against his ex-wife Amber Heard relating to a December 2018 op-ed
where she described herself as “a public figure representing
domestic abuse” though she did not explicitly name Depp. Heard
countersued for $100 million claiming Depp’s attorney defamed
her by suggesting her allegations of abuse were a hoax.

At the heart of the Virginia trial were competing allegations of
abuse. Heard alleged that Depp abused her before and during their
marriage. Depp denied ever being violent and alleged Heard was the
actual abuser. The seven-person jury was tasked with deliberating
whether the words published in the op-ed were true. This required
the jury to examine the allegations of abuse entered into the
record in the Virginia courtroom. In the end, the jury found two
passages and the headline of Heard’s op-ed to be false and made
with malicious intent. They also found that Depp, through his
attorney Adam Waldman, defamed Heard by describing the allegations
as a hoax in the Daily Mail.

Many commentators believed that Depp would face the same result
in the U.S. given the added onus on plaintiffs to prove the that
the statements are false. The differences with regards to the
burden of proof in the U.K. and U.S. make the U.S. decision in
favour of Depp curious.

A closer comparison of defamation law in Canada and the U.S.
with a focus on the role of juries and cameras in the courtroom
offers insight into the differences between the U.K and U.S. cases
and highlights what would be different if this trial was heard in
Canada.

Defamation in Canada and the U.S.

The tort of defamation protects a person’s reputation from
defamatory statements. It includes libel and slander. In both
Canada and the U.S., the distinction between libel and slander are
the same, they both involve defamatory statements though libel is
written, and slander is oral.

The legal test in Canada requires that the plaintiff show, on a
balance of probabilities, that: (1) the words about which the
plaintiff complains are defamatory, (2) that they referred to the
plaintiff, and (3) that they were published to a third person (See:
Grant v. Torstar Corp.). The legal
test in the U.S. requires that the plaintiff show: (1) a false
statement purporting to be fact, (2) publication or communication
of the statement to a third person, (3) fault amounting to at least
negligence and (4) damages or some harm caused to the person or
entity who is the subject of the statement. The U.S. falsity
requirement can pose an uphill battle for plaintiffs as it places
an added burden not present in Canadian defamation law.

It has been said by some that defamation law is more
“plaintiff-friendly” in Canada since plaintiffs are
relieved from the requirement to prove falsity. Beyond the falsity
requirement, defamation in Canada is a strict liability tort
meaning that defendants are liable regardless of if they acted
intentionally or negligently in making any statement. Although this
is true in the U.S. as well, the First Amendment’s freedom of
expression protection limits the presumption of damages in cases
relating to public officials, figures, and issues.

U.S. defamation law also requires that public officials prove
that statements were published with “actual malice”,
defined as “knowledge that it was false or with reckless
disregard of whether it was false or not” (See: New York Times Co v Sullivan). The
Depp-Heard trial involved public figures and both Heard and
Depp’s statements were judged using the “actual
malice” standard. Canada does not have a separate standard of
proof for public figures.

Some provinces and states have “anti-SLAPP”
legislation which can be used to dismiss proceedings that limit
free expression on matters of public interest. Some commentators
claim Depp strategically chose to bring a claim in Virginia given
that State’s looser “anti-SLAPP” laws as compared to
other states like California, where Depp was at greater risk of
having his case dismissed.

Judge vs. Jury

Depp’s U.K. libel case was heard by one judge. In contrast,
the Depp-Heard trial was decided by a jury. The United States
Constitution provides for a right to a jury trial even in civil
matters. No such right exists in Canada making jury trials in civil
matters very rare. Although the jury was instructed to carry out
their duties without bias or prejudice to any party, the different
verdicts in the U.K. and U.S. cases may have to do with the fact
that a jury rather than a single judge was deciding a case
involving two high profile celebrities and an unprecedented volume
of social media commentary.

Social Media in the Courtroom

Even if you weren’t following the Depp-Heard trial in
detail, at some point you likely came across a clip, meme or TikTok
about the case. The large volume of content online was made
available in part by the fact that the U.S. has a longstanding
culture of permitting cameras in the courtroom.

Although media access to the courtroom is now rather entrenched
in the U.S., this was not always the case. The media fought hard
against an American Bar Association Canon passed in the
1930’s
that called for a blanket ban on courtroom
photography and radio due to the media circus that often
ensued.

In contrast, the use of cameras in Canadian courtrooms is far
less prevalent. While the Supreme Court of Canada has consistently
broadcast its proceedings on the Cable Public Affairs
Channel,2 lower courts broadcast proceedings far less
frequently (though live streaming of hearings has increased during
the pandemic). For instance, in Société Radio-Canada c.
Québec (Procureur général)
,
the Supreme Court of Canada held that restrictions on filming and
photographing in public areas of courthouses in Quebec infringed s.
2(b) of Canadian Charter of Rights and Freedoms, which
guarantees freedom of expression and freedom of the press. However,
the Court held that the restrictions were reasonable limits
prescribed by law under s. 1 of the Charter and that their
objective was to “maintain the fair administration of justice
by ensuring the serenity of hearing”.

In Ontario section 136 of the Courts of Justice
Act
explicitly prohibits and, in fact, makes it an offence
to take audio and video recordings of hearings, preventing
observers from sharing moments from proceedings as we saw in the
Depp-Heard trial.

Damages

With regards to damages, Depp and Heard both received
significantly less than the amount they claimed. Depp was awarded
$10 million in compensatory and $5 million in punitive damages
though his punitive damages were capped to the state’s legal
limit at $350,000 making his total damages award approximately
$10.5 million. Heard was awarded $2 million in compensatory
damages.3

It is important to distinguish between general damages
(those awarded for loss of reputation, hurt feelings, etc. not tied
to specific monetary losses) and actual damages (specific
monetary losses that can be tied to the defamation).

Both actors claimed they faced professional setbacks due to the
defamatory statements. Depp claimed he lost earnings in the
millions after he was dropped by Warner Bros from the Fantastic
Beasts
franchise. He also claimed he lost out on an estimated
$22.5 million for his removal from the sixth Pirates of the
Caribbean
film. Heard testified that she had lost earnings
too, citing that her role was pared down in Aquaman.

General damages for defamation in Canada tend to be lower than
the U.S. An exception is where a defamation claim involves ongoing
statements or conduct deemed to be egregious. In such instances,
the court will award higher damage awards. However, Canadian courts
tend to be conservative in awarding general damages, slashing
awards deemed to be disproportionately high (See: Chartier v Bibeau). Where actual
damages can be proven damages awards may be higher.

Takeaways

Even though Depp faced a higher burden of proof in his U.S.
trial as compared to the U.K., other distinctions like the presence
of a jury and cameras in the courtroom are features that may
explain the different outcomes in the U.K. and U.S.

Canadian defamation law is considered to be more plaintiff
friendly since there is no falsity requirement. Courtrooms in
Canada are also more shielded from cameras, which can minimize the
risk of a “media circus” which is what ensued in the
Depp-Heard case and may have influenced the jury. Although the
media was equally invested in Depp’s U.K. claim, that matter
was decided by a judge alone rather than jury. In Canada, jury
trials for civil claims are rare. Lastly, general damage awards are
typically higher in the U.S. than in Canada. Depp and Heard were
awarded monetary sums in the millions, but presented evidence of
loss of income tied to the alleged defamation. In Canada, awards in
the millions for defamation are uncommon absent egregious or
ongoing conduct, or where a plaintiff can show clear evidence of
monetary damage tied to the defamation.

Footnotes

1. This article focuses on defamation law in Canadian
common law jurisdictions.

2. The Supreme Court of Canada was a pioneer in
broadcasting its proceedings starting in the 1990s around the time
of the medical assistance in dying case Rodriguez v British Columbia (Attorney
General)
.

3. Compensatory damages compensate the aggrieved party
for damage to their reputation and for injuries like mental
suffering, anguish, embarrassment, humiliation and other pecuniary
loss or social disadvantage. Punitive damages, in contrast, punish
the wrongdoer for malicious, reckless and outrageous conduct. The
awards are intended to put the injured party in the position they
would have been had the wrong not occurred.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.



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