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Case Comment: Depp v News Group Newspapers, Libel claim locked down – Kirsten Sjøvoll

Related Member(s):
Kirsten Sjøvoll
Related Practice Area(s):
Media and Information Law

The much anticipated judgment in Depp v News Group Newspapers ([2020] EWHC 2911 (QB)) was handed down on 2 November 2020.  Nicol J held that the allegations against Mr Depp that he was a “wife beater” were substantially true and that his claim for libel therefore failed.

The case has attracted a considerable amount of media attention and an army of Depp fans offering strong views about the evidence via Twitter.

Facts

The Claimant is the well-known Hollywood actor Johnny Depp. The Defendants are the publisher and Executive Editor of The Sun. On 27 April 2018, an article was published online with the headline “GONE POTTY: How can JK Rowling be “genuinely happy” casting wife beater Johnny Depp in the new Fantastic Beasts film?” The headline of the article was subsequently amended to remove the phrase “wife beater” but the text remained the same.

The article made reference to allegations that Mr Depp had been violent towards his former wife, Amber Heard on a number of occasions. The natural and ordinary meaning of the words complained of were accepted by the parties to be as follows:

i) The Claimant had committed physical violence against Ms Heard

ii) This had caused her to suffer significant injury; and

iii) On occasion it caused Ms Heard to fear for her life. [80]

The Defendants principally relied on the defence of truth as set out in section 2 of the Defamation Act 2013 (“the 2013 Act”), on the basis of the above natural and ordinary meaning.

 They advanced their positive case that the words complained of in the meaning above were substantially true on the basis that:

“…throughout their relationship, the Claimant was controlling and verbally and physically abusive towards Ms Heard, particularly when he was under the influence of alcohol and/or drugs” (see [13]).

 The Defendants relied on 14 separate incidents of alleged violence by Mr Depp towards Ms Heard, in addition to further details set out in a confidential annex.

Judgment

The heard evidence over the course of 14 days in addition to two days of closing submissions. The trial took place across two courtrooms in the Royal Courts of Justice in order to comply with the government guidelines and restrictions in response to the Covid-19 pandemic.

The most significant elements of the natural and ordinary meaning of the words complained of were agreed between the parties. Insofar as there were remaining disputes, the Judge said

“i) I agree that the Claimant’s reference to ‘overwhelming evidence’ makes no difference to the meaning which the Defendants must prove. They accept that the words alleged Mr Depp was violent to Ms Heard. If they establish the substantial truth of that sting to the necessary standard of proof, it will be immaterial whether or not the evidence was ‘overwhelming’. 

ii) I agree that the published words do not state or suggest that Mr Depp paid Ms Heard £5 million as compensation for his violence. I agree that there is no reference to Ms Heard having sought damages for his violence. Nor would a reasonable reader treat the words as implying that this was why the Claimant had paid her that sum. Amber Heard is described as his ‘ex-wife’. I agree that an alternative explanation for the payment would be understood as having been part of a divorce settlement.

iii) I agree that there is no reference in the articles to the restraining order continuing.

iv) I also agree that the criticism for casting the Claimant in the ‘Fantastic Beasts’ film is directed at J.K. Rowling and not at the Claimant. As to this last point the Defendants added in their skeleton argument at paragraph 37 ‘If the court were to find that this is a comment about the Claimant’s fitness to work in the film industry, the Defendants have informed the Claimant that they will rely on the statutory defence of honest opinion under s.3 of the Defamation Act 2013.’ Had it been necessary I would have found that such a defence ought to have been pleaded; it was not; and there was no application to amend the RAD to do so. As it is, the issue does not arise because I agree with the Defendants that the words complained of do not include such a comment about the Claimant.” [84]

As a result, the Defendants had to prove that it was substantially true that Mr Depp was violent towards Ms Heard.

The Judge concluded that, while not all of the allegations of violence by Mr Depp towards Ms Heard were proven, the Defendant had established that the words complained of in their natural and ordinary meaning were substantially true. After a thorough and detailed analysis of the evidence in relation to each of the alleged incidents relied upon by the Defendants, he concluded that:

“I have found that the great majority of alleged assaults of Ms Heard by Mr Depp been proved to the civil standard (bearing in mind what has been said about the evidence necessary to satisfy that standard when serious allegations are in issue). The exceptions are Incidents 6, 11 and the additional confidential allegation regarding Hicksville. I do not regard the Defendants’ inability to make good these allegations as of importance in determining whether they have established the substantial truth of the words that they published in the meanings which I have held those words to bear.” [575]

The Judge was unpersuaded by the argument advanced by Mr Depp’s counsel that Mr Depp had been disadvantaged because the person who had made the allegations, Ms Heard, was not a party to the proceedings and therefore was not subject to the usual disclosure obligations. He also did not accept the Claimant’s characterisation of Ms Heard as a “gold digger” who had constructed allegations of abuse by her former husband as part of an elaborate “hoax” in order to advance her own career, noting that some evidence of Mr Depp’s feelings towards his ex-wife was evident from a text message he sent in 2016 where he said the following:

‘She’s begging for total global humiliation. She’s gonna get it. I’m gonna need your texts about San Francisco brother … I’m even sorry to ask … But she sucked Mollusk’s [I assume a reference to Elon Musk] crooked dick and he gave her some shitty lawyers … I have no mercy, no fear and not an ounce of emotion or what I once thought was love for this gold digging, low level, dime a dozen, mushy, pointless dangling overused flappy fish market … I’m so fucking happy she wants to fight this out!!! She will hit the wall hard!!! And I cannot wait to have this waste of a cum guzzler out of my life!!! I met fucking sublime little Russian here … Which makes me realize the time I blew on that 50 cent stripper … I wouldn’t touch her with a goddam glove. I can only hope that karma kicks in and takes the gift of breath from her … Sorry man … But NOW I will stop at nothing!!! Let’s see if Mollusk has a pair … Come see me face to face … I’ll show him things he’s never seen before … Like the other side of his dick when I slice it off.’ [§580]

The successful reliance on the defence of truth meant that the claim failed and judgment was entered for the Defendants.

Comment

Much of the attention in the media and online has been focused on the detail of the allegations and there has been perhaps some misconception as to what a libel defendant is required to establish when they seek to prove that the words complained of were “true”. However, under section 2 of the 2013 Act a defendant does not have to prove the truth of each and every imputation, where the imputation not established as substantially true does not cause serious harm to the claimant’s reputation.

In this case, it was also not necessary for the Defendants to prove that each and every incident or allegation of domestic relied upon took place. It was enough for them to establish that it was substantially true that Mr Depp had been violent towards his ex-wife during the course of their marriage.

A libel defendant who seeks to establish that the words complained of are substantially true takes a considerable risk that, if unsuccessful, the damages they may be liable for will be significantly increased. The costs of a trial in which the truth of the allegations are in issue are also likely to be much higher. Indeed, in the Depp case, it was notable that both parties instructed leading criminal counsel to conduct the cross examination of the key witnesses in addition to media law specialists.

The judgment has been controversial with Mr Depp’s large fanbase taking to Twitter to defend their idol and make uncomplimentary remarks about the Judge.  Mr Depp’s lawyers described the decision as “perverse and bewildering” and suggested that the judgment was “so flawed it would be ridiculous for Mr Depp not to appeal this decision”.  It nevertheless remains the case that, after hearing all the evidence the Judge found that the Defendants had proved the substantial truth of their allegations.  An appeal against such findings is, inevitably, an uphill task.

This may not be the end of this particular courtroom drama, as separate libel proceedings are pending in the United States. But even if Mr Depp is successful in those proceedings, whether he can be said to have vindicated his reputation is questionable to say the least.

Kirsten Sjøvoll is a member of Matrix Chambers, practising the field of media and information law.