21 September 2021 - Article
Johnny Depp has suffered a reputation malfunction. A significant loss in the London libel courts has him emerging from an effort to restore a reputation tarnished by a small tabloid op-ed, with that reputation entirely torn to shreds by way of horrendous headlines in myriad media across the globe.
Depp’s response to the judgment as he sets out his stall to appeal was to call it “surreal”. His lawyers have labeled it as “flawed” and “as perverse as it is bewildering”. But what may be more bewildering is Depp’s decision to pursue, undaunted, a separate libel action against his former wife in the Virginia court, hot on the heels of his failed attempt in England.
There are a number of differences between the two cases. Depp was named in the first article; not named but he argues sufficiently identified in the second. In the UK the defendant was News Group Newspapers, publishers of The Sun, Depp’s former wife Amber Heard the newspaper’s star witness; in the US it is Ms Heard personally, who is sued as defendant. In the English action, the article in The Sun refers to Depp as a “wife beater”; in the US the WSJ piece Ms Heard refers to a backlash she suffered after speaking out about domestic abuse. Additional and important differences concern the makeup of the court, and the laws to be applied by them. And it is these regards that, while Depp found the judgment of Mr Justice Nicol bewildering, it is perhaps bewildering given the more defendant-friendly environment on the other side of the Transatlantic mirror, that that the losing claimant in the English case considers that he can emerge victorious in Virginia.
Johnny Depp played the Mad Hatter in Tim Burton’s 2016 move, Alice Through the Looking Glass – and he could do worse than looking to that role as he reflects on his decision to proceed through the US courts. In the 19th century novel which inspired the film, author Lewis Caroll’s heroine Alice marveled at the world on the other side of the mirror, finding that things are “just the same as ours, only things go the other way”. Indeed, when looking at the libel laws of England and Wales when compared with those on the other side of the Atlantic, those laws do indeed appear to be the other way round.
Libel actions in the US are still heard by juries as opposed to judges in England. While hearing the same evidence as a legally qualified and forensic judge, juries are likely to be more impressionable and liable to be star-struck, which often works in the claimant’s favour. But the other differences between the two systems militate in favour of the defence. Under English law, while it is for the claimant to show that the allegation of complaint caused him serious harm, thereafter the burden of proof is on the defendant newspaper to prove that the allegations are true. In Depp v Newsgroup Newspapers, The Sun had to reach the high bar of proving to be “substantially true” the accusations made by Ms Heard that he was violent towards her, and thus a “wife-beater”. And it did so. However, when he reaches the Virginia court it will be for Depp as claimant to prove that the allegations are false. Moreover, as a public figure he will also have to establish that the allegations were made with actual malice, that is knowing them to be false or with a reckless disregard as to their falsity.
On entering the threshold of the Virginia Court, not only will Johnny Depp have the weight of a British verdict against him, as well as a history of evidence already given under oath through which the lawyers will meticulously pick for hits or howls of inconsistency, he also bears the responsibility of proving his case on one side of the Atlantic which he has, to all intents and purposes, already lost on the other side.
There is a lot to be said for calling the press to account when they behave irresponsibly. A proper balance needs to be found between the respective rights at play, reputation on the one hand and free speech on the other. However, there are many ways to skin the damaged-reputation cat – and reaching for the writ is at the very high end of the risk scale. Many a claimant has fallen along the bumpy road of litigation; some have run out of funds, some have run out of patience, some have run out of nerve. Some have even run into disasters of their own making. It is all very well for a claimant boldly to assert that they wish to “cut out the cancer of bent and twisted journalism with the simple sword of truth and the trusty shield of fair play”, as did Jonathan Aitken when he launched libel proceedings against The Guardian and Granada TV’s World in Action in 1995. But although he was “ready for the fight” to clear his name over allegations concerning his business activities, the case collapsed when he was caught out in a lie, and he was convicted of perjury in 1999.
Misunderstandings, misapprehensions, misrecollections can all occur such that libel actions may be founded on “he said she said”, and may founder without either party having perjured themselves. But the rub of a high profile defamation case is that a libel action won may restore the shine to a tarnished reputation, while a libel action lost may well leave it sullied forever.
We know the maxim “the definition of madness is doing the same thing over and again, expecting different results”. The Mad Hatter actor is seemingly determined to press on with proceedings in Virginia. And he will no doubt be trusting that in seeking to restore his reputation globally, it isn’t madness to follow a libel action lost in the courts of England and Wales with one in America, expecting a different result.