Depp v Heard: UK v US Cases
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Research by Kalina Hagen
Background Information
What is Defamation?
In the United Kingdom, defamation is defined as ‘an untrue statement that’s been presented as fact and causes harm to the character of the person it describes. If someone’s reputation is damaged because of a false statement, this statement will be considered defamatory’. (Hiscox UK). In the United States, defamation is defined as ‘a statement that injured a third party’s reputation’ (Cornell Law School).
Definitions:
Libel is a written defamatory statement.
Slander is a verbal defamatory statement.
The Case in the United Kingdom: Depp v News Group Newspapers Ltd
A British tabloid called ‘The Sun’ labelled Mr Depp a ‘wife beater', following abuse claims from Ms Heard. Mr Depp sued this tabloid for libel in the UK. A three-week trial in a London High Court ensued in July 2020. The judge maintained that the Sun’s claims were ‘substantially true’ and rejected Depp’s claims of defamation. Depp appealed the judgement but was unsuccessful. There was no jury in this case as in the UK most civil cases tried in court do not have a jury. However, libel and slander trials are usually the main exceptions. In this case, neither party applied for a jury trial. This might have been for a number of reasons including; COVID-19 restrictions and the advantage of reasoned judgement by a judge, rather than members of the public. Additionally, juries return a yes or no answer, and one party always emerges as the winner. A judge, alternatively, issues a public decision in which they go through every allegation, providing a more substantial public record.
Why did Mr Depp lose in the United Kingdom?
In the UK, the burden of proof in defamation cases is on the defendant. This means that the defendant (in this case News Group Newspapers Ltd) has to prove that what they said was true, and therefore not defamation.?In both trials, Mr Depp’s lawyers used a strategy in which they questioned Ms Heard’s reliability as a witness. The UK Judge recognised this strategy and dismissed most of the evidence that did not directly address whether Mr Depp had committed assault or not (i.e. whether what The Sun said was true or not). This tactic used by Mr Depp's lawyers is called a Darvo argument; legal expert Mr Stephens states that ‘lawyers and judges tend not to fall for it [Darvo argument], but it’s very, very effective against juries.'
The Case in the United States: John C. Depp, II v Amber Laura Heard
Again, a civil defamation trial initiated by Mr Depp, this trial centred Ms Heard’s op-ed published in The Washington Post in 2018. Ms Heard stated that she had spoken up against ‘sexual violence’ and had become a ‘public figure representing domestic abuse.’ Ms Heard never named Mr Depp in the article. Mr Depp sued Ms Heard for defamation, and blamed the op-ed for extensive financial loss and damaging his reputation and career. Ms Heard then filed a counterclaim. She alleged that Mr Depps’ former Lawyer, Adam Waldman, had made defamatory statements against her to the Daily Mail in 2020. Throughout the trial, Mr Depp’s lawyer sought to prove that Ms Heard had been the instigator, rather than the victim. They used the above-mentioned Darvo argument. Ms Heard’s lawyers claimed that the op-ed was factual and protected by the First Amendment (constitutional amendment protecting the right to free speech). Ultimately, the jury ruled that Ms Heard’s op-ed was indeed defamatory. They awarded Mr Depp with $10 million in compensatory damages and $5 million punitive damages from Ms Heard (the court reduced this to $350 000). The jury also ruled that Waldman (Mr Depp’s former lawyer) had defamed Ms Heard, and awarded Ms Heard $2 million in compensatory damages but nothing in punitive damages from Mr Depp.
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Why did Mr Depp win in the United States??
There were two key differences in the US case compared to the UK one. Number one, whether or not defamation occurred was decided by a jury. In the US, the jury also awarded damages. The role of the judge was primarily to guide the jury and make sure that the damages awarded were legal. As stated above, Darvo arguments are extremely effective on juries. Number two, this trial was televised, and has even been called a ‘trial by TikTok’. The jury in this case was never sequestered. There is no clear answer as to why the jury in this case was not sequestered. The jury was likely highly influenced by the social media circus that ensued.
Definition:
Sequestered means that the jury is kept in isolation from the outside world
to prevent them from being influenced in making decisions.
Summary: Why did Mr Depp win in the United States and lose in the United Kingdom?
The case was decided by a judge in the UK but a jury in the US. This meant that Mr Depp’s Darvo argument was much more effective in the US. Although both cases attracted a lot of media attention, the US case was televised. This resulted in a ‘trial by TikTok’, in which Ms Heard was already found guilty in the court of public opinion.
Further Updates to Depp v Heard
1 June 2022: the jury rules in favour of Johnny Depp. On the1st July 2022, Ms Heard’s legal team files a motion for the court to either dismiss the verdict or order a new trial, in which they essentially filed for a mistrial. Their arguments were that Ms Heard ‘never edited or played any role with respect to the headline’ and that ‘[Mr] Depp’s award was excessive’. Mr Depp told the court that ‘he would limit his damages to the period Dec. 18, 2018 through Nov. 2, 2020.' This means that only events that occurred within that time frame could be taken into account when awarding damages. However, Mr Depp later defied this assertion as he ‘continued to urge the jury to restore his reputation and legacy to his children as a result of Ms. Heard accusing Mr Depp in May 2016 of domestic violence’. Ms Heard's team also raised issue with the jury. One of the jurors was listed as having been born in 1945. However, public records demonstrate ‘that he appears to have been born in 1970.’ Judge Penney Azcarate denied most of these motions ‘for reasons stated on the record.' She did provide more information about the juror’s birthdate, which was a clerical error. Furthermore, both parties questioned the jury panel for a full day and deemed them acceptable, so the judge did not see a reason to invalidate the jury’s competence. Additionally, on 8th July 2022, Ms Heard’s insurance provider, New York Marine and General Insure Co., filed a suit against her to avoid having to pay after the trial. According to the insurance company: “An actual controversy has arisen and now exists between Plaintiff, on the one hand, and Heard, on the other hand, with regard to the duties and obligations owed between Plaintiff and Heard under the Policy with respect to indemnity”. The company already paid for the 2019 trial, which Heard won. The insurance policy protects Heard up to $1 million, but Heard has incurred $6 million in fees. The insurance company says: “it has no duty to defend Heard based on California Insurance Code 533.”
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