You cannot have missed the news. But I will repeat it anyway: Johnny Depp has lost his highly publicised defamation claim against The Sun newspaper and has “been asked to resign” from the film franchise at the centre of the very article he sued on. Sadly, 2020’s biggest Hollywood drama is not going to help an increasingly wrought industry, nor reopen the cinema doors, but it certainly grasped the attention of many.
Johnny Depp’s decision to sue News Group Newspapers (NGN), the publisher of The Sun, and its executive editor Dan Wootton for defamation, made scandalous and attention-grabbing headlines around the world. It was billed by the Defendant tabloid as the “biggest libel trial of the 21st Century”. That may be a warranted designation as a result of the profile of the parties and witnesses involved. However, while the general public’s appetite for a salacious Hollywood drama that unfolds in London’s Royal Courts of Justice is unrelenting (remember the #Deppheads?), the legal issues that were at play in Depp -v- News Group Newspapers  EWHC 2011 (QB) were, in fact, rather unremarkable.
Nicol, J handed down his judgment on 2 November 2020. He held that “although [Depp] has proved the necessary elements of his cause of action in libel, [NGN and Wootton] have shown that what they published … was substantially true”.
While English media lawyers will be excitedly digesting Nicol J’s judgment and rubbing their hands together at further judicial clarity of certain elements of the Defamation Act 2013, this article is not intended to be a forensic dissection and analysis of the legal issues that faced the court.
Instead, I will explore what this judgment means in practice for those who find themselves in the public eye (in particular, A-List talent) and those that advise them. I will reflect on some lessons, risks and rewards associated with bringing a libel action – and what can happen when things go very wrong.
Considering that the trial took place during the summer of a year when most of the global population was in lockdown, the background of the case is perhaps better known as people sought respite from Coronavirus-themed news.
Depp sued NGN and Wootton in relation to an article published in 2018 by The Sun that was originally titled “Gone Potty: How can JK Rowling be ‘genuinely happy’ casting wife beater Johnny Depp in the new Fantastic Beasts film?” (Article). Depp argued that the meaning of the Article was that he “was guilty, on overwhelming evidence, of serious domestic violence against his then wife, causing significant injury and leading to her fearing for her life, for which [Depp] was constrained to pay no less than £5 million to compensate her, and which resulted in him being subjected to a continuing restraining order; and for that reason is not fit to work in the film industry”.
Depp submitted that the allegations (bearing the above meaning) were false, defamatory and that they caused serious harm to his reputation. The newspaper, in justifying its publication of the Article, relied on the defence of “truth”, which provides a complete defence if the Defendant can prove that “the imputation conveyed by the statement complained of is substantially true” (section 2 of the Defamation Act 2013). In contrast to defamation proceedings in America (where the burden of proof rests with the Claimant/Plaintiff to disprove the allegation), the impetus here was on NGN and Wootton to prove that what they had published was, on the balance of probabilities, “substantially true”.
In a parallel universe, the 16 day trial that followed, which included the cross-examination of – and written evidence submitted by - household names as well as public revelations of incredibly private (and no doubt, at times, embarrassing) facts, could have formed the basis of a much sought after film script.
I will not pore over the specifics here in detail (but please keep reading!). Depp was examined in the witness box for five days and faced intense questioning on his finances (which have, separately, had their own time in the tabloid spotlight), celebrity lifestyle, use of drink and drugs, his friendships with other well-known faces as well as, of course, allegations of severe and horrifying violence.
NGN and Wootton pleaded 14 separate “incidents” (as well as others which remained confidential) when Depp had assaulted his former wife, Amber Heard, in support of their defence of truth. The Court scrutinised a plethora of evidence, which shone a light on a fractious and deeply troubled relationship at the centre of which was a profoundly flawed and erratic individual who was clearly battling alcoholism and substance abuse.
In essence, it fell to Nicol J to determine (a) the legal meaning of the defamatory allegations complained of; and (b) whether NGN could prove the substantial truth of the allegations.
Nicol J apportions the vast majority of his 129-page judgment to analysing, in significant detail, the evidence presented to him in relation to each of the 14 incidents of violence and reaching a conclusion on the veracity of each of them.
The court found that, “in view of the evidence as a whole”, 12 of the 14 incidents of alleged assault against Heard were more likely to have in fact happened than not. Nicol J concluded that he did “not regard the Defendants’ inability to make good [the two] allegations as of importance in determining whether they have established the substantial truth of the words that they published”.
Lessons to learn
The decision to litigate in any situation is, among many other things, a complex, stressful and expensive decision that should not be arrived at lightly. Arguably, litigating over your reputation is even more daunting: money is not the only thing at stake. There are immense risks associated in doing so. Of course, some of these may be outweighed by benefits in certain circumstances.
- One of the prevailing reasons for claimants choosing to sue for libel is to vindicate their reputation and allow them to point to a court judgment which makes clear the objectionable allegation is false. Indeed, Depp’s counsel in his closing speech said: “just to be clear, when I say he has lost everything, to him everything is obviously his reputation. I am not suggesting for a moment this is about money … this is vindicating him for his reputation. Because Johnny Depp kitchen cupboard beater, he can live with. But Johnny Depp wife beater, he cannot”.
- Some believe that Depp found himself facing the most unpalatable catch-22. While both are detrimental, which scenario is less likely to turn off the tap of job offers and cause lasting public damage to his reputation: either to be seen not to challenge a widely published allegation of domestic violence in a #metoo world (risking the media or public, rightly or wrongly, to conclude that it is true) or instead for highly intimate details of his private life and alcohol and substance abuse to be aired in a public forum? Depp obviously decided that the latter had less potential to be more career-ending. However, to put such a decision down to simply “what is the lesser of two evils” misses one very significant risk: what would be the consequence if he lost?
- England’s claimant-friendly libel laws has given London the moniker of the “libel capital of the world” where high-profile individuals are regarded to have a better chance of successfully challenging defamatory allegations. As mentioned above, much of this is down to the burden of proof: in England, a defamatory allegation is presumed to be false unless proved otherwise. However, as we have here, where a flawed and unreliable Claimant sits at the centre of a libel claim, the England’s libel laws may not save the day. A great level of detail about Depp’s private life was made public as a result of the trial, but in fact only one thing ultimately mattered: NGN was able to prove that it was more probable than not that Depp was a wife beater.
- The internet age has brought with it the hazard of permanence. For the considerable future, the details of what was aired in court will be forever accessible by anyone with internet access. Depp may have considered it intolerable not to attempt to set the record straight. While that is a legitimate concern, and a successful claim can provide significant assistance in mitigating the harm caused by false allegations, thought should be given to the consequence of loss.
- Chief among the risks that Depp took in going to trial is that, with this judgment, he will forever now in the media’s and public’s eye be known as a wife beater (regardless of the fact that such allegations have not been proved to the criminal standard). Depp’s reputation has, as a result, taken a significantly harsher beating than had he decided against bringing a claim against NGN.
- This trial focused on serious allegations of aggressive violence. NGN and Wootton only had to prove that it was more probable than not those allegations were true, whereas a criminal court would need to be satisfied beyond reasonable doubt that they happened. Remember that evidence which might not be considered sufficient in a criminal case could nevertheless get you “convicted” in the eyes of the media and public. Rather than bring a high-profile libel claim, it might be more effective to respond to the allegations by pointing out the absence of criminal charges or a conviction.
- It has been estimated that Depp will be liable for £5 million in legal fees, which will include a significant slice of the Defendants’ legal costs. Even if he had won, he would only have, at best, expected to recover 70 per cent of his costs from the Defendants. Bringing a libel claim can be, even to the wealthier among society, a significant capital investment (or, in this case, a poor one).
- Without wishing to be flippant, succeeding in litigation can be, when boiled down, a flip of the coin. Regardless of the belief in the strength of your claim or the perceived weaknesses in the other party’s position, the fact that a dispute reaches court often means that there is a grey area. Ultimately, Nicol J’s judgment predominantly hinged on how credible he found Depp as a witness. Regardless of the honesty with which Depp may have given evidence, his credibility will undoubtably have been blemished in the eyes of the Court as a result of the clear extent of his alcohol and substance abuse, not to mention the extraordinary text he sent claiming his former wife was about to get her comeuppance. Nicol J criticised a central theme of Depp’s case that “Ms Heard had constructed a hoax and that she had [made the allegations] as an ‘insurance policy’ … in the event that the marriage broke down”. He noted that the fact that Ms Heard donated the $7 million divorce settlement to charity is “hardly the act one would expect of a gold-digger”.
- Courts are public arenas. Parties should go into them with open eyes in the knowledge that details which they may prefer to be kept private – whether that be personal, financial or business related – will be intensely scrutinised. Of course, there may be situations where the allegation is so deplorable and baseless that someone feels it is worth the risk.
- The internet age also means that there is an enormous volume of ever-growing information online (particularly so for high profile individuals). Had Depp decided against issuing proceedings, might The Sun’s Article now be a distant memory to which few apportion much weight? As we saw in the 2016 privacy claim PJS v News Group Newspapers, bringing a claim can risk shining a far harsher light on the allegations to a wider audience. In not doing so, while inevitably galling and distressing, the offending allegations might have otherwise gradually ebbed from public consciousness. That eventuality is now, for the foreseeable future, very remote.
- Depp sued NGN and Wootton rather than Heard, despite her being, as Depp’s counsel put it, his “effective opponent”. This meant that she was not subject to the more onerous disclosure obligations that Depp himself was given while Nicol J refused Depp’s application against her for third-party disclosure. While there may be incriminating evidence against Heard that did not see daylight, as far as the public are concerned this was a full trial. This point is worth bearing in mind as often the media will be publishing an allegation made by someone else. Therefore, careful consideration should be given as to who is the best party to sue. As Nicol J puts it: “[Depp] would, I can assume, have been advised as to the consequence of suing [NGN and Wootton] against whom the claim is brought, but not Ms Heard”.
The impact on domestic violence
Domestic violence charities have welcomed the judgment for sending a message to victims that their voices will be heard and listened to – even if they do not, as Nicki Norman of Women’s Aid said, fit the image of the “perfect victim”. Nicol J’s judgment does not paint Heard as entirely innocent – evidence was given to Court of her substance abuse and she also faced allegations of assault against Depp. However, the judgment is at pains to make clear that nothing could “begin to excuse the use of [such] violence” as alleged. While it may not alter the perception of the media and public of Depp, it is worth reiterating that Depp has not been charged or convicted for the alleged violence (where the prosecution would face a higher standard of proof).
Domestic abuse victims may take some comfort from Nicol J’s decision, but it fails to recognise the inevitable distress Heard must have experienced in recalling her trauma in Court and facing verbal and online abuse and death threats from Depp’s fans throughout the case (and since the judgment was handed down).
There is no doubt that the actor took a significant risk in bringing the claim, choosing to hit the proverbial nuclear button in opting for a public trial. Even if Depp had won this claim, it would not be unreasonable to believe that his reputation would have still taken a significant knock.
Although this particular trial is now behind him, the ordeal is far from over. Depp’s lawyers have already stated that it would be “ridiculous” not to appeal the “perverse” judgment and Depp himself has confirmed he plans to appeal the “surreal” judgment, although the grounds on which he would seek to appeal are, as yet, unclear, as the primary reason for his findings was the accounts of the defendant’s witnesses were more compelling and believable than those of Depp and his witnesses.
Depp is also suing Heard for $50 million in America for libel in relation to an article she wrote for the Washington Post. With the burden of proof in that trial resting with Depp to disprove the allegations, I would be hesitant to place a wager on a victory for Depp.
Despite Depp insisting that “[his] life and career will not be defined by this moment in time”, the immediate cost of this judgment has already been paid, with Depp having “been asked to resign by Warner Bros. from [his] role … in Fantastic Beasts”. How much more it will cost him in the future is yet to be seen. Hollywood has in recent times increasingly shown an intolerance towards those found to be guilty of criminal offences, or, as in this case, of wholly unacceptable violence towards another individual, especially where the victim is less able to defend themselves. What happens to Depp’s future career will be interesting to monitor as the ultimate price of failure in a London court room may well be ostracism by the big studios. One bad article in one newspaper on one day may seem in hindsight a good outcome by way of comparison.
Update (27 November 2020)
Another blow was handed to Depp when, on 7 November 2020, Nicol J refused him permission to appeal the judgment to the Court of Appeal and ordered him to make an initial payment of nearly £630,000 towards NGN & Wootton’s costs. Another hefty bill is likely to follow after a detailed assessment of the costs. While Depp has until 7 December 2020 to apply directly to the Court of Appeal to overturn the judgment, Nicol J reportedly noted that “the findings of fact by a first instance tribunal – particularly one, such as [himself], who has heard oral evidence – are rarely open to challenge on appeal” and that he “does not consider that the proposed grounds of appeal have a reasonable prospect of success … and there is not some other compelling reason why permission to appeal should be granted”.
If you require further information about anything covered in this briefing, please contact Oliver Lock, or your usual contact at the firm on +44 (0)20 3375 7000.
This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
© Farrer & Co LLP, November 2020