Johnny Depp’s libel trial against News Group Newspapers, the publishers of The Sun, and its executive editor, Dan Wootton, has made front page news every day since it kicked off on 7 July 2020 in the Media and Communications List of the High Court. Some of the sensitive testimony, documents and information shared so far have made audiences question why Mr Depp has brought this claim and whether it has been worth it. Emily Cox, a partner in our Media Disputes department, considers these questions.
Recap of the claim
It will not have escaped anyone’s attention that Johnny Depp is in the midst of a libel trial; the most Hollywood of hearings that the Royal Courts of Justice in London have seen in some time. Mr Depp is suing News Group Newspapers and Dan Wootton in relation to an article published by The Sun, which originally bore the headline “Gone Potty: How can JK Rowling be ‘genuinely happy’ casting wife beater Johnny Depp in the new Fantastic Beasts film?”.
Mr Depp contends that the meaning of the defendants’ publications is that he:
“… was guilty, on overwhelming evidence, of serious domestic violence against his then wife [Amber Heard], causing significant injury and leading to her fearing for her life, for which the claimant was constrained to pay no less than £5m to compensate her, and which resulted in him being subjected to a continuing court restraining order; and for that reason is not fit to work in the film industry.”
He asserts that the publications are false and caused serious harm to his reputation. The defendants are relying on a truth defence to the claim, as per section 2 of the Defamation Act 2013. The burden of proof is on them, and not on Mr Depp, to prove the substantial truth of the publications on the balance of probabilities.
After a tough first week, with Mr Depp being cross-examined about many unsavoury aspects of his personal life and relationship with Ms Heard, much commentary in the press and on social media has asked why Mr Depp has brought the claim and why he would be prepared to air his dirty laundry in this way. There are three reasons.
First, in the internet age, allegations have a permanence to them that they did not have when newspapers were in print-only form and ended up as fish and chip wrappers within days. The allegations about Mr Depp remain on the internet for all to read and so are unlikely to be forgotten. There is, therefore, an impetus to resolve the issue as Mr Depp will not want it to remain on the record for posterity that he is involved in domestic violence.
Secondly, Mr Depp is likely to have seen this as the most effective means of clearing his name. Ms Heard made an allegation of domestic violence, but there were no criminal charges or trial in the US and so no opportunity to determine the issue one way or the other. The allegation has been left hanging and repeated in the press, on social media and on the internet in general. As a result, Mr Depp says he has lost out on work. This is not surprising in a #MeToo world. Hollywood will almost certainly be reluctant to cast actors who have unresolved allegations of domestic violence over their heads.
Thirdly, Mr Depp will no doubt see this trial as the lesser of two evils. Airing details about his substance abuse and other aspects about his private life, though undesirable, will likely be less career-ending than a suspicion of domestic violence. He also has his personal life to think about, and what those close to him will think about the allegations published in The Sun.
A desire for vindication is typically the primary motivation for those who pursue a libel claim to trial. Very much secondary will be any potential financial reward by way of damages. This is because the damages awarded are usually dwarfed by the legal costs of pursuing the claim. Damages are rarely into six figures, while costs often hit the seven figures, and sometimes multiples of seven figures, with perhaps 70% of those costs recoverable in the event of a successful outcome at trial.
London’s Media and Communications Court is an attractive forum for high-profile individuals such as Mr Depp to seek to clear their names because England still has defamation laws that are ‘claimant friendly’, in many respects much more so than US courts. One of the key reasons for this is the burden of proof. In essence, when an argument about truth is a central feature of a defamation case, there is a legal presumption that a defamatory statement is false unless the defendants can prove otherwise. To win their defence, NGN and Mr Wootton will need to prove, not that Mr Depp’s marriage or private life left a lot to be desired or that some of his behaviour should expose him to criticism, but that their specific statement about Mr Depp published in The Sun was in itself substantially factually true.
Mr Depp will be hoping NGN has not done enough and that he will secure a stridently worded judgment exonerating him and dismissing the allegations against him. As well as doing away with any lingering doubts in audiences’ minds about there being ‘no smoke without fire’, this may carry some hearsay weight in the libel proceedings afoot in the US against Ms Heard herself.
All of which may go to explain the recent increase in defamation claims in England and Wales. The number of defamation claims in 2019 was the highest in the last decade. If we compare 2019 to previous years, there is a 22% increase in issued defamation claims compared to 2018. These statistics follow a 70% surge in defamation claims in 2018 and a 39% rise in 2017. A person’s reputation has always been critical, both personally and professionally. But the internet age has perhaps made it more important to take active steps to protect this.
It is valid to ask why Mr Depp is pursuing his claim through a highly public trial. But, while much of what has been aired so far has been damaging and embarrassing to Mr Depp, the answer has to be that he has brought it out of necessity. If Mr Depp had left an allegation of serious domestic violence against his former wife unchallenged, this would be attached to his name for the rest of his life. Without question, this would impact his career more significantly than the details about his life that the public is seeing now. Unlike in the film and celebrity world of the past, reputational attacks of this magnitude now have a permanent impact unless they are legally challenged. Mr Depp is looking for vindication, and he needs to win this trial to get it.
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