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Depp v Heard defamation trial: The pirate overcomes the horror – Libel & Defamation



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Earlier this month, an American Court delivered its judgement in
the enormously publicised defamation case brought by Johnny Depp
against his former wife, Amber Heard. The defamation case is
undoubtedly one of the most significantly reported and commented
upon cases of all time in the field of defamation. The case has
been reported, and commented upon, on a global scale and many of
the core facts are already well known.

This paper provides a summary of the background and an overview
of the conduct of the case and the judgments delivered by the jury.
It is not an outlandish remark to say that aspects of the conduct
of the case and the judgments delivered by the Court could only
have happened in the USA.

The parties

Johnny Depp is a very well-known and highly successful actor. He
appeared in many well-known and successful movies, notably the
Pirates of the Caribbean series. In those movies, he played the
role of Captain Jack Sparrow. Upon a general recognition basis, he
is most renowned for that role and, as one placard that was raised
during the course of the defamation trial noted, he was
America’s most famous pirate.

Amber Heard, his ex-wife, was also a successful actress in her
own right. She initially gained fame and success in a number of
horror movies but, playing a completely different role, that of the
school age girlfriend of a marijuana smoking process server, she
also enjoyed considerable success in the movie Pineapple Express.
The expression ‘Pineapple Express’ refers to a strain of
marijuana. Perhaps her most notable role was in the move
Aquaman.

The parties were married in February 2015. It was, as both
parties agreed, an acrimonious marriage (one of the few matters
upon which they did agree) and, in May 2016, Ms Heard filed for
divorce. That was granted in January 2017 and she reportedly
received a property settlement of $7 million, which she pledged to
charity.

Mr Depp’s claim in the United Kingdom

In June 2018, Mr Depp commenced defamation proceedings in
England against News Group Newspapers Limited, being the publisher
of The Sun newspaper, one of the UK’s famed tabloids. In
substance, he alleged that the newspaper defamed him as being a
wifebeater. In November 2020, after a fully defended trial, the
Court in England dismissed the action by Mr Depp and found that the
newspaper had proved the great majority of the alleged assaults to
the necessary legal standard.

The article in question leading to the defamation
proceedings in the USA

In December 2018, Ms Heard wrote an op-ed piece in the
Washington Post. In the article, Mr Depp was not named but, in his
defamation trial, he alleged that he was sufficiently identified.
The jury ultimately found that he was, a finding that appears,
based upon the facts that have been well publicised, to have been a
correct one. Mr Depp alleged, in substance, that the op-ed piece
gave rise to a defamatory meanings of domestic abuse and sexual
violence.

The proceedings in the USA

The defamation proceedings commenced by Mr Depp were filed in
March 2019. They were filed in the Fairfax County Circuit Court,
being an appropriate Court having regard to the location of the
Washington Post. The proceedings were heard by a seven-member jury
and the jury ultimately found that the allegations made by Ms Heard
were false. What was also necessary for Mr Depp to succeed with his
claim was that he had to satisfy the Court that the piece by Ms
Heard had been published with malice.

The damages awarded

The jury awarded Mr Depp $10 million in compensatory damages. It
also awarded him $5 million by way of punitive damages but that
amount was reduced by the Judge given that, in the State of
Victoria, there is a cap on punitive damages of $350,000.00.
Accordingly, the total awarded to Mr Depp was $10,350,000. He had
claimed $50 million.

Paradoxically, the jury also found in favour of Ms Heard as a
result of a counterclaim brought by her. She alleged that she had
been defamed by Mr Depp and his lawyers and she claimed $100
million. The jury only made limited findings in favour of Ms Heard
upon her counterclaim, specifically by reference to the allegation
by Mr Depp’s previous lawyer in which he referred to Ms
Heard’s allegations as being a hoax. The jury awarded $2
million to Ms Heard.

The differences in substance between the conduct of the
trial in the USA and a defamation trial in Australia

There are many differences between the conduct of the trial in
the USA and the conduct of a defamation trial in Australia. The
trial was live streamed even though it included allegations of
domestic violence. It attracted considerable attention both by way
of physical presences outside the Court building and particularly
by way of social media. The jury had access to the Internet and
social media and it would be extremely surprising if members of the
jury, despite any warnings from the Judge, did not view social
media posts, and the media articles generally, when they were not
in the Court room. The trial attracted a large number of posts, the
majority of whom were supporters, even very dedicated supporters,
of Mr Depp. From the perspective of an outsider lay observer, it
appears that this case was very heavily influenced by social media
commentary rather than necessarily by the evidence. On some days,
the trial attracted more interactions on social media than any
other topics of the day.

Ms Heard’s primary defence was that the defamatory meanings
were substantially true. With a defence of truth in Australia, it
is not necessary to prove malice and, indeed, malice, which
addresses the state of mind of a person, has no part to play in a
defence of truth. With a defence of truth either the defamatory
meanings are, as a matter of fact, substantially true, or they are
not. The reasonings for a finding by a jury are never articulated.
Again, without a detailed scrutiny of all of the evidence and all
of the submissions that were made, it is difficult to see how the
jury, properly directed, could have found that Ms Heard published
the piece with malice. There appears, when viewed objectively, to
be no doubt that she truly believed in what she wrote.

The other significant difference between the judgments in this
case and any defamation judgments in Australia relates to damages.
In Australia, there is a cap on the award of general compensatory
damages of about $430,000.00. Additional amounts can be awarded by
way of aggravated damages. The amount awarded to Mr Depp is
considerably in excess of any amount that would be awarded in any
similar case in Australia. Further, in Australia punitive damages
simply cannot, by law, be awarded. The irony has already been noted
of the jury finding, firstly, that Ms Heard’s allegations were
false, and were made with malice, and then, secondly, finding in
her favour when Mr Depp’s former lawyer had accused Ms heard of
engaging in a hoax.

The judgment in this case also sits uncomfortably with the
judgment in the case in the UK in which Mr Depp failed with his
action. As has happened, it is not inconceivable that the two
Courts could deliver different outcomes and that is, realistically,
not totally unsurprising given the manner in which the trial in the
USA was conducted.

Summary

By Australian standards and, it is suspected, most global
standards, the judgment in the USA, both as to liability and as to
damages, was quite a remarkable one. It was one clearly influenced
by a very prominent and very aggressive social media campaign.



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