Pirates of the Defamation: Depp sues The Sun

July 14, 2020

2 min read

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What's going on here?

Johnny Depp is suing News Group Newspapers (owner of The Sun) and its executive editor for libel after describing him in an article as an abusive husband in 2018.

What does this mean?

The article referred to Depp as a “wife beater”, an assertion the actor says is “completely untrue”. It refers to his behaviour during his fiery marriage with partner Amber Heard, which ended in 2017. Heard subsequently filed a temporary restraining order amidst accusations of domestic violence. The case is distinct from a parallel case, due to be heard in the United States, in which Depp is suing Heard for $50m after allegedly defaming him in a Washington Post article about domestic abuse.

The Sun says it cannot be libel if it is true. Libel is a written piece of defamation. Defamation is a false proclamation presented as fact that has caused, or is likely to cause, serious harm to the reputation of the person about which it is written. The newspaper alleges an “overwhelming evidence” of 14 incidents of domestic violence to back up its claim. Depp denies all allegations against him. He describes the case as a means to clear his name. 

What's the big picture effect?

This highlights the distinctive nature of defamation cases. Unlike many civil action lawsuits, the responsibility of the claimant is not to prove the “wrong” occurred. Instead they must prove in preliminary hearings the defamatory “meaning” of the statement(s) in question. In other words, the claimant must prove that “serious harm” (i.e. the content published lowered them in the minds of ordinary members of society) was inflicted on their reputation because of the publication before a judge. Only after the judge deems that “serious harm” has occurred, can a case go to trial. In this instance, it is likely Depp’s legal team argued that the article cost the actor work, such as film roles.

The UK is an attractive place for individuals to sue for defamation as its defamation laws are known to be claimant-friendly. The burden of proof regarding the truth of defamatory statements lies with the defendant, not the claimant. This has resulted in accusations that they limit individuals’ right to free speech (the contrasting approach to defamation in the US and UK was demonstrated in the Elon Musk defamation lawsuit last year, discussed here). In fact, the United States’ 2010 SPEECH Act, that ensured US courts won’t recognise foreign libel judgments, was legislated largely in response to English laws and fears of “libel tourism”.

Defamation cases in English courts are distinctive. A large proportion settle pre-trial, after the judge has ruled on the claimant’s argument that “serious harm” to the claimant’s reputation has or is likely to occur because of publication. This is largely because, when a case goes trial, the burden of responsibility lies with the publisher. Proving the veracity of a statement that was published can be extremely difficult. In this case, The Sun must prove that Depp was an abusive “wife beater”, despite the alleged abuse occurring behind closed doors. Proving one-sided abuse occurred in a notoriously heated and “passionate” personal relationship will be challenging.

Report written by George Maxwell

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