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By the Media, Entertainment & Sport group of Bird & Bird

| 6 minutes read

Part 1: Johnny Depp’s Nightmare on Fleet Street

In one of the most high-profile court cases of 2020, Johnny Depp has lost his libel battle with The Sun following their description of him as a “wife beater”. In a mammoth judgment, Mr Justice Nicol has not only generated further extensive headlines, but has potentially put a question mark next to the UK’s status as a claimant-friendly jurisdiction for defamation claims. In part 1 of our analysis, William Wortley looks at what came out of the High Court. In part 2, Theo Rees-Bidder looks at the key takeaways from the case.

See Part 2 for Theo Rees Bidder’s look at the practical considerations of the case here

In April 2018, The Sun published an article online with the title “GONE POTTY How can JK Rowling be ‘genuinely happy’ casting wife-beater Johnny Depp in the new Fantastic Beasts film”. The article, written the paper’s executive editor Dan Wootton (the second defendant in this action) discussed a backlash against the Harry Potter author for casting Depp, despite allegations of abuse made by his now former wife, the actor Amber Heard, evidence of which was supplied when she sought a temporary restraining order against him. Depp sued News Group Newspapers Limited (owners of The Sun) and Wootton, claiming that the articles that were published were defamatory.

The Meaning of the Words

In defamation claims, it is first necessary to establish the natural and ordinary meaning of the words complained of. Mr Justice Nicol preferred the Defendant’s version, holding them to mean that Johnny Depp “beat his wife Amber Heard causing her to suffer significant injury and on occasion leading to her fearing for her life“. While there was some dispute between the parties as to meaning, this did not form a significant part of their oral arguments, and is dealt with relatively briefly.

The Truth Defence

Having established the natural and ordinary meaning of the words, the majority of the judgment is then taken up with an analysis of whether the statements were substantially true. The truth defence under section 2 of the Defamation Act 2013 replaced the old common law defence of justification, requiring the defendant to prove that the “imputation conveyed by the statement complained of is substantially true”.

With Depp having made out his libel claim it was for the Defendants to prove, on the balance of probabilities (the standard of proof in civil proceedings), that Depp had beaten Heard and that she had feared for her life.

This involved a detailed analysis of 14 incidents of alleged serious physical violence by Depp against Heard, the details of which have been discussed extensively during reporting of the trial. The first of these took place in 2013, when Depp was alleged to have physically assaulted Heard following a comment on his tattoo “Wino Forever” (previously “Winona Forever”, a reference to Winona Ryder).

In respect of this first incident, Mr Justice Nicol noted that, in isolation, the limited evidence relating to this evidence might not be sufficient, but that taken as a whole he was able to conclude that the assault did happen.

Significant evidence was submitted by the parties in respect of each incident. Of these, Incident 14 is perhaps most illustrative of the complex issues around evidence that the Judge had to decide, with Mr Justice Nicol observing that it “is one where the conflict in evidence is particularly sharp.”

Incident 14: Los Angeles

Incident 14 took place May 2016, towards the end of Depp and Heard’s relationship. Depp arrived at a building where the couple had lived, and where he owned several penthouse apartments, to meet Heard shortly after the death of his mother.

Depp, who according the Defendants was drunk and high on drugs, was alleged to have:

  • thrown a phone at Heard;
  • grabbed her by the hair; and
  • caused damaged to the property.

During the incident a number of witnesses appeared at the apartment. These included a couple, Ms Pennington and Mr Drew, who were friends of Heard’s and lived in one of the penthouses. They also included two sets of police officers called to respond to the incident, as well as members Depp’s security team.

Several of these individuals provided witness evidence, offering conflicting accounts of many of the details, notably the nature and seriousness of the injuries to Heard and damage caused. Ms Pennington and Mr Drew both gave evidence stating that Heard had suffered injuries, with Ms Pennington and Heard documenting those injuries with photos at the time. Both also prepared contemporaneous accounts of the incident, a factor that was to prove very important.

A number of witnesses gave evidence for Depp, stating that they had seen no injuries on Heard in the hours and days after the incident. These included members of Depp’s security team, Jerry Judge and Sean Bett, together with other friends and employees who claimed to have seen Heard in the aftermath. Perhaps most interestingly, this also included the reports given by two of the officers who had attended the scene, one of whom did notice reddening on Heard’s face but attributed it to her crying.

Mr Justice Nicol broadly accepted the evidence provided by the Defendants’ witnesses, finding that their contemporaneous recording of the incidents matched broadly with the evidence at trial, making it particularly compelling.

By contrast, Mr Justice Nicol was largely unconvinced by much of the evidence submitted by Depp, including the account given by the first set of officers who attended the scene. Mr Justice Nicol noted that the weight of their evidence was reduced because of a lack of contemporaneous notes (the officers had produced a report some two months after the events). He also rejected the Depp’s suggestions that photo evidence of the incidents had been doctored to make Heard’s injuries look worse, finding that the metadata in the photos supported the Defendants arguments.

Amber’s Heard

Of the 14 incidents examined, Mr Justice Nicol ultimately found that 12 were proven to be true on the balance of probabilities, of which three involved Heard fearing for her life. He held that the failure to make out the remaining allegations did not prevent him determining that the Defendants had established that the words they published were substantially true.

Throughout his judgment he refers to Depp’s jealousy, dependence on drugs and alcohol, and repeated references to turning into a “monster” as themes running through many of the incidents.

Mr Justice Nicol also considered a number of overarching considerations which it was submitted should be considered when assessing Amber Heard’s credibility. Depp pointed towards a supposed violent history, stemming in part from a previous relationship of Heard’s.

Mr Justice Nicol ultimately decided that these arguments (together with arguments regarding Depp’s own prior history of violence or otherwise) were not of major significance, noting instead that neither Depp nor Heard had any previous convictions for violence.

Depp also sought to undermine Heard’s credibility by pointing to her behaviour during a now-infamous incident in 2015 when Depp and Heard got into hot water for trying to bring their pet dogs, Pistol and Boo, into Australia. It was argued amongst other things that Heard had knowingly made a false statement on the importation document (to which Heard pleaded guilty), sought to procure false testimony from two employees of the couple, including Kevin Murphy, Depp’s estate manager.

Mr Justice Nicol was ultimately convinced by Heard’s evidence on this point. He noted that the nature of the false statement was “so far removed from the evidence which [she] gave in this trial that its relevance for her credibility is marginal at most”. Regarding the allegations that Heard had sought false testimony, Mr Justice Nicol was also critical of Murphy, finding that he was on his own account prepared to give false evidence and was an “enthusiastic supporter” of Depp.

What Now?

It will be interesting to see whether the result has any impact on similar proceedings that Depp launched against Heard in Virginia, where he is suing her for $50m in relation to an op-ed piece on domestic abuse published in the Washington Post.  There are already additional issues bringing claims in the US, not least the strong protection afforded to freedom of speech. The judgment has been hailed as a victory by domestic violence campaigners, as well as a vindication for Amber Heard. In the short term, the judgment also appears to have further damaged the reputation of one of Hollywood’s biggest stars.

In part two, Theo Rees-Bidder looks at the key takeaways from the case.

Imagecredit: flickr/creative commons, Jon S