Defamation: Johnny Depp v Amber Heard, by Kristy Ainge

The world is currently watching the trial of the case brought by Johnny Depp against his former wife, Amber Heard for defamation for a sum of $50 million dollars.

The trial is over an opinion piece that Ms Heard wrote for the Washington Post in 2018, a popular newspaper in America where Ms Heard called herself a victim of domestic violence.

Johnny Depp denies any abuse towards Ms Heard and she has issued a counterclaim against him for $100 million. Ms Heard has accused Johnny Depp of causing a ‘smear campaign’ against her and described his claim as ‘abuse and harassment’.

Although Johnny Depp is not mentioned by name in the newspaper, his lawyers are arguing that it contains a ‘clear implication that Mr Depp is a domestic abuser’.

Johnny Depp previously issued a libel case against News Group Newspapers when he attempted to sue them over an article that was published in the newspaper in 2018. The headline read, “Gone Potty: How can JK Rowling be ‘genuinely happy’ casting wife-beater Johnny Depp in the new Fantastic Beasts film?’

Johnny Depp lost this case as the Judge was satisfied the Newspaper proved their allegations were ‘substantially true’.

In English Law, Defamation is a tort which relates to the publication of a statement that has caused or is likely to cause serious harm to a person’s reputation.

The key ingredients of the cause of action are:

• The publication of words or other matter that refer to the claimant
• An imputation from those words which is capable of causing serious harm to the claimant’s reputation; and
• The words cannot be proved to be true or excusable by any other defence (for example, honest opinion or qualified privilege).

The common law test for establishing whether a statement is defamatory is whether the imputation of it would lower the claimant in the estimation of right-thinking members of society. The statement must cause serious harm to the claimant in its publication, and in determining whether a publication is likely to cause serious harm, the question is whether the publication, has a tendency to cause serious harm.

A defamatory statement published in written form is known as libel, while a defamatory statement published in spoken or other temporary form is slander.

In the Depp v Heard case therefore, Johnny Depp’s lawyers (looking at matters from an English lawyers point of view) are trying to prove that the statement published by Amber Heard in that article:

• Relate to Johnny Depp
• Cause serious harm to his reputation (which it seems to have done already); and
• They are not true

The trial commenced on Monday in Virginia, and it is understood that there is a possibility of celebrity witnesses testifying such as James Franco, and Elon Musk.