Blog Post

A De(pp) Brief – the Current State of Defamation Law

Overview

There is no doubt that you have come across coverage of the recent celebrity legal battle between actor Johnny Depp and his ex-wife, actress Amber Heard. Social media has carefully curated snippets from the trial that have gone viral time and again, captivating viewers at home and turning many into self-elected jurors and legal experts. However, it has become clear that many may not be aware of the underlying legal and policy principles, including with respect to defamation. The definition of “defamation” varies slightly depending on jurisdiction. However, generally it’s defined as acting in a manner that damages someone’s good reputation (Merriam-Webster). We’re here to break it down.

The Depp/Heard matter started in 2018 when Heard penned an op-ed in the Washington Post where she called herself a “public figure representing domestic abuse.” Although Depp was never named in the article, the implication was that Heard had been a victim of abuse at the hands of Depp during their relationship and marriage. In 2019, Depp responded to the op-ed by filing a US$50-million defamation lawsuit against Heard in the United States, claiming that the statements made by Heard resulted in significant financial losses, as he was dropped from some heavy hitting movies, including Pirates of the Caribbean and Fantastic Beasts. Heard filed her own countersuit for US$100 million, claiming Depp’s legal counsel, Adam Waldman, made defamatory statements about her to the Daily Mail when he indicated that Heard and her friends purposely curated a scene of domestic violence in order to blame Depp and call the police.

In Ontario, in order to be successful with a defamation claim, the plaintiff has to demonstrate that the statement made was:

a) defamatory

b) related to that individual, and

c) published by a person other than the claimant.

This tends to be the “easy” part. Most defamation matters hinge on whether or not the defendant has a valid defence. In Ontario, there are seven main defences to a defamation claim, and the one most often relied upon is “truth” – i.e. whether the defamatory statement is true. If a defamatory statement is proven to be true, the defendant can avoid the consequences and liability associated with defamation. In determining if something is true, the Ontario judicial system uses the standard that someone must have “acted in reckless disregard as to the falsity of the publicized matter.”

Alternatively, in Virginia, where the Depp/Heard trial took place, the standard to indicate if defamation has occurred is if the defendant made the defamatory statement “with knowledge that it was false or with reckless disregard of whether it was false or not.” In the Depp/Heard matter, the jury sided with Depp on three counts of defamation. The jury found that Heard made the comments in the op-ed with the knowledge that they were false, or made the statements about Depp with reckless disregard of whether they were false or not.

As a result of Depp’s victory, he was granted US$15 million dollars: US$10 million as compensation for any lost work as a result of negative press (compensatory damages) and US$5 million as a “punishment” placed on Heard for filing the countersuit (punitive damages). However, the ultimate award was reduced to US$10.35 million as there is a US$350,000 maximum set for punitive damages in Virginia.

Heard did have her own minor victory during the trial, as the jury found that she was the victim of defamation due to Waldman’s statements. Heard was awarded US$2 million in compensatory damages, compared to the US$100 million requested. Heard has since come forward and expressed that she is “terrified” of continued litigation and believes that “that’s what a defamation lawsuit is meant to do. It’s meant to take away your voice.”

Theoretically, the media coverage should not have had any impact on the outcome of the trial, as official jury members are prohibited from seeking out any news coverage of a trial in which they are serving as jurors. However, it was clear throughout the trial that the media was a very powerful tool in swaying public opinion about the parties and what the appropriate outcome should be. The massive media influence warrants a question: should such trials be livestreamed?

In the Fairfax County Circuit Court, where the Depp v. Heard trial took place, it is at the judge’s sole discretion if the case will be livestreamed. When making this decision, the judge will consider if the trial is of public importance and whether the livestream will enhance trust in the judicial system. Given the celebrity status of both parties, Judge Penney Azcarate ruled that it was in the public interest to livestream the trial – something allegedly neither party pushed back on. Given the intensely public nature of the trial and the specific choice of filing a claim in a jurisdiction that more readily livestreams cases, perhaps the actual trial platform was what both parties wanted. It appeared that both of the parties in this case were more interested in having a platform to tell “their story” rather than a platform to be compensated for losses. As one of Depp's lawyers said after the ruling, “this was never about money for Mr. Depp.”

In Ontario, when determining whether a defamation trial should be available for media livestream, the standard is higher than complete judge discretion. Ontario courts are required to balance freedom of speech and the protection of the parties’ reputations, and as such, livestreaming a trial is only permitted when the subject is important to the public at large. For example, the Ontario courts determined that a livestream of the trial on the Greenhouse Gas Pollution Pricing Act was important to the public because it was determining the constitutionality of setting a minimum national standard for carbon pricing. By way of contrast, many recent trials involving Canadian celebrities were not livestreamed (i.e. Jian Ghomeshi, Jacob Hoggard, and Linda O’Leary). The scope of public interest clearly differs between the two jurisdictions.

The complicated nature of the legal system means that many watching the livestream may not pick up all of the legal intricacies. Prior to their deliberation, judges reiterate to the jury how to go about making their decision based on the underlying law. The public, however, rarely receives the same crash course and comes to conclusions based on perception, rather than legal principles or policy reasons behind a certain law. For example, many would not have considered that the reason why the standard for the defence of truth is not absolute, but rather based in respect for the truth, is to protect freedom of speech. Such understanding, trust and balance will remain crucial in future matters similar to Depp v. Heard, where a peek into the legal system is just a few clicks away.