Money, (De)fame, and Fortune: The Law Behind the Depp v Heard Trial

By Christina Posner

Mid-vape testimony, emotional-support alpacas and cross-examination about muffins – the bizarre Amber Heard and Johnny Depp defamation trial is the latest obsession for legal and non-legal minds alike. The longwinded live-streamed trial has captured the attention of our irony-poisoned and perennially binge-watching zeitgeist for its famously memorable moments. However, many do not know what the trial is actually about - legally. The abuse allegations being argued over in the trial have been shocking and, quite often, grim, but what many do not know is that the trial is not about abuse itself – it is about defamation, or the right to protect one’s reputation. This article takes the opportunity to break down defamation law in context, and raises the question of whether defamatory allegations can only be litigated by A-list superstars.

What is defamation?

Defamation is what is known as a tort. A tort is a certain kind of legal action, where a person seeks compensation from another person for that person’s wrongful act. A tort is different to an action in criminal law, where the state takes the person to court and has the ability to put a person in prison. Defamation is a tort protecting one’s reputation.[1] The idea behind it is that everyone (or, everyone who has the money to take the dispute to trial) has the right to have their community’s perception of them protected from unjustified or untrue statements.

Who are Johnny Depp and Amber Heard?

Johnny Depp is an award-winning American actor famous for Pirates of the Caribbean, and Amber Heard is an American actress and spokesperson for L’Oreal Paris. Depp and Heard had a tumultuous relationship to say the least. Heard filed for divorce in May 2016, requesting a temporary restraining order against Depp based upon domestic abuse allegations. She later retracted this statement.

What brought about the first defamation claim?

Depp’s first defamation claim was launched when British tabloid newspaper “The Sun” published an article in 2018 with “wife beater Johnny Depp” forming part of the headline. The trial was held in the UK, as this is where The Sun was based. Additionally, it was a favourable jurisdiction for Depp because the burden of proof in the UK falls upon the defendant. This means that once Depp has established the claim, it is up to “The Sun” to prove its defence. In the UK, there are four elements necessary for a successful court claim in defamation:

1.     The Defendant (The Sun) has communicated a false statement (headline) of fact;

2.     The statement must have identified or referred to the plaintiff (Depp)

3.     The statement must have been published; and

4.     The statement must have caused serious harm.

The “wife-beater” statement clearly met the last three elements, therefore, the burden of proof was on The Sun to prove that the statement was not false – or was substantially true. The Sun relied on evidence provided by Heard when she had made allegations of 14 incidents of domestic abuse. It would not have been a celebrity trial without a star-studded witness line-up taking the stand, after which, Judge Nicol delivered his judgement in November 2020. He held that the Defendant’s allegations were substantially true. The defence of truth succeeded, and thus the claim still managed to fail despite the UK being a favourable jurisdiction for Depp.

The second defamation claim

Six months after the UK action was filed, Heard published an op-ed (a type of opinion article) in the “Washington Post”. In the article, she referred to herself as a “public figure representing domestic abuse”. In a life-imitating-art scenario, the two actors ended up on our screens in the sequel of their courtroom drama. Depp sued Heard this time around. The trial is taking place in Virginia, US where the Washington Post is physically published. The US elements of defamation are:

1.     Publication;

2.     An actionable statement (false and harming the plaintiff’s reputation);

3.     Of or concerning the plaintiff; and

4.     Must have the requisite intent.

There are two differences when litigating defamation in the US jurisdiction. First, Depp carries the burden of proof – this time, Depp must prove on the balance of probabilities that Heard’s statement was false. Secondly, Depp must prove that the Defendant (Heard) knew the statement was false, or recklessly disregarded its falsity (the law is slightly different for public figures such as Depp). The other elements are met, because although the statement did not name Depp, the law simply requires there to be enough identifying facts that the reader could reasonably understand it to be about him. The consequences of these jurisdictional differences make the defamation claim much harder for Depp to prove in the US than the UK. On top of this, Heard has counter-sued Depp for defamation, claiming that his denial of the abuse accuses Heard of committing perjury to obtain the 2016 restraining order, defaming her character. Similarly, she must convince the Court of the second element of defamation – that the statement is false.

This brings the parties to their current state of affairs. What is happening in the trial is that evidence is being put forward to try to prove that Heard has lied and it is her who behaves violently, or that Depp abused Heard. Analysing the muffins, the magnum champagne bottles and other alarming audio tapes, photographs and testimonies serves the purpose of ultimately deciding whose statement is false.

Can defamatory allegations only be litigated by A-list superstars?

Part of the public’s interest in this case is likely to do with the fact that defamation proceedings are relatively rare. Auckland University Senior Lecturer Nikki Chamberlain explained that while anyone can be defamed, there are significant barriers to bringing these claims. In her experience as a Commercial Litigator, Chamberlain found that litigating defamation is usually very expensive, and courts may have difficulty in quantifying what the damage to that reputation is worth (in terms of compensation). Therefore, it is not simply A-list celebrities who can bring these claims, but the luxury of protecting one’s reputation is often only afforded to those with deep pockets.

These barriers raise a multitude of issues in modern society, where millions of comments and messages are being published online every day. It seems that spotting misinformation is becoming increasingly difficult, while the ability to protect your image is still very limited –unless, like Depp, you have 50 million dollars on the line.

Suppose there is something positive to come out of the Depp v Heard trial being so publicised. Chamberlain says it is perhaps an example how much harm can come out of making a defamatory statement, hopefully instilling more caution into what people are “publishing”. If people have more incentive to ensure that their claims are true, or opinions are founded upon solid facts, then reputations will have more protection.

Whoever is telling the truth, we are yet to know. One thing is for sure: protecting one’s reputation may come at the cost of airing out a mass of dirty laundry – entertaining for the public, but deeply embarrassing for those involved in the case itself.

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Featured image source: Wikimedia Commons

[1] Television New Zealand Ltd v Keith [1994] 2 NZLR 84 (CA) at 86.