On November 2nd, 2020, Justice Andrew Nicol of the High Court of England and Wales handed down judgement in Depp II v News Group Newspapers Ltd & Anor  EWHC 2911 (QB) with the world watching. In what is arguably the largest and most high profile case since the introduction of the Defamation Act 2013 (“2013 Act”) in the UK, the High Court dismissed the former Pirates of the Caribbean star Johnny Depp’s libel claim against the Sun newspaper.
Depp brought the libel action under Section 1(1) of the 2013 Act. The claim followed the publication of an article on April 27th, 2018 on the Sun newspapers’ website with the headline “GONE POTTY How Can JK Rowling be ‘genuinely happy’ casting wife beater Johnny Depp in the new Fantastic Beasts film?” The main issue for Depp was with the term “wife beater.” He sought to persuade the Court that this term was untrue and the statement had caused Depp serious harm both professionally and personally. Meanwhile, the Sun referred to sixteen incidents in which Depp had allegedly been physically violent toward Amber Heard, his ex-wife.
Following a titanic five-week trial in the summer of 2020, Nicol J held that the Sun had proved that the statement was “substantially true,” finding on twelve of a possible fourteen occasions Depp had been physically violent towards Heard. Heard gave evidence on behalf of the Sun.
Depp is also suing Heard directly for $50 million in the state of Virginia for an opinion piece she wrote for The Washington Post. It bore the headline “I spoke up against sexual violence—and faced our culture’s wrath. That has to change.” Heard, meanwhile, is countersuing for $100 million claiming that Depp tried to destroy her career.
The mainstream media are primarily concerned with the tantalizing details—drugs, text message insults, and celebrities. But they forget the importance of the law in this area and the ramifications for the winner and the loser. This article seeks to illustrate the differences between the English and US approaches to defamation law in order to demonstrate what effect, if any, the result across the pond will have on Depp’s impending claim in the US.
There are significant differences between UK and US defamations laws. These differences have an impact on every facet of a case; they affect the issues the court has to determine in the claim, who ultimately determines the claim, and who carries the burden of proof. Look no further than their governing provisions. While the UK is governed by statute in the form of the 2013 Act in addition to case law, US defamation law is primarily state law, although, for our purposes, I will simply summarise US law generally.
Pro-Plaintiff or Pro-Defendant?
English law is often described as being pro-plaintiff, whereas US law is mostly pro-defendant. Ultimately, this comes down to each country’s policy priority: uninhibited press and expression versus protections for privacy and reputation.
The structure of UK laws, courtesy of the 2013 Act, arguably favours privacy. Therefore, the laws appear to be more plaintiff-friendly. This pro-privacy approach is evidenced by the European Convention of Human Right (ECHR) and the Human Rights Act 1998.
Article 8 of the ECHR confirms private citizens’ right to privacy. Article 10, on the other hand, deals with the right of expression. However, article 10 is a qualified right, as it carries with it specific duties and responsibilities. Any defamation claim would be a balancing exercise between the rights of newspapers to have sufficient freedom to engage in journalistic practices and the right of private citizens not to suffer unwarranted interference.
In the United States, the First Amendment of the Constitution confirms the right of expression or free speech. It is an unqualified right, in contrast to Article 10. As many cases have made clear, US law is more concerned with free expression and public debate than it is with protecting individuals’ reputations and privacy. Reputation is notably not a fundamental right protected by the Fourteenth Amendment to the Constitution (Kyu Ho Youm, Liberalizing British Defamation Law: A Case of Importing the First Amendment? 13 COMM. L. & POL’Y 415, 420 (2008)).
Both UK and US defamation laws are agreed on what is called the truth defense, but they differ on which party has the burden of proving truth or falsity. A plaintiff cannot succeed if the statement for which they are making their claim is true or “substantially true.”
In the UK, there is a presumption that the statement made by the defendant is false. Therefore, the burden rests on the defendant to prove that the statement is true and thus defeat the claim. Section 2 of the 2013 Act provides:
(1) It is a defence to an action for defamation for the defendant to show that the imputation conveyed by the statement complained of is substantially true.
In contrast, US laws presume the statement made is true, again highlighting the value the United States places in public debate and expression. Therefore, it is for the plaintiff to prove the defamatory statement is false. The standard of proof remains the same in both countries: the civil standard on the balance of probabilities (or, in the US, the “preponderance of the evidence”). The standard means that the burden of proof is met when the party carrying the burden convinces the factfinder that there is a greater than 50% chance that the claim is true.
English law is also more favourable to defendants in another way: if no defense is established, the defendant is held strictly liable and the claim is successful. There is no need for a plaintiff to prove negligence or recklessness in respect of the falsity. Proof that there has been “serious harm” within the meaning of the 2013 Act is enough for a successful claim.
In the US, strict liability is a rarity in tort law. Instead, as a general rule, liability hinges on the plaintiff’s ability to prove the defendant is at fault. In defamation cases in particular, there are three different categories of liability. The most applicable category in each determines the level of fault the plaintiff must prove.
Category 1 is for action by public officials or public figures bringing a claim in respect to public matters, such as their conduct or qualifications. For Category 1, the plaintiff must prove “actual malice.” In the US, actual malice is a special term which means that the plaintiff must show the defendant acted with knowledge of falsity of the defamatory statement or reckless disregard for whether it was true (See Curtis Pub. Co. v. Butts, 87 S. Ct. 1975, 1991 (1967).
Category 2 is for actions brought by private individuals with respect of matters of public concern. The Court would require proof that the defendant was negligent or reckless as regards the falsity of the defamatory statements.
Finally, Category 3 is for actions brought by private individuals regarding matters of purely private concern. There is yet to be a Supreme Court ruling as to the standard of fault that must be proven within this category. Therefore, many states utilise category 2’s standard—that the defendant was negligent or reckless as regards the falsity of the defamatory statements (See WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998)).
Depp’s case would likely fall into category 1, as he is a public figure and the allegations made by Heard concern his conduct. Depp will, therefore, have to prove “actual malice” in order to be successful—the highest of the relevant levels of fault.
The Role of Judge and Jury
Another area of significant difference between US and UK law is in the determination of the facts. In the UK, trial by jury is a rarity. Before the 2013 Act, parties had the right, pursuant to Section 69(1) Senior Courts Act 1981, to apply to have a defamation claim heard by a jury. However, Section 11 Defamation Act 2013 removes that right, and claims in this area now have a presumption against trial by jury. The Court can still exercise its discretion and order a jury trial, but it is rarely utilized and has led to “the almost complete abolition of jury trial” in defamation cases (See Stoker v Stoker 3 All ER 647 at ). Nevertheless, neither Depp nor the Sun made an application for trial by jury. Even if they had, it would have been unlikely to be successful, especially considering the current COVID-19 pandemic. A jury trial would have been difficult to accommodate and would almost certainly have hampered the progress of Depp’s claim.
A lack of jury trials has had a major impact on case management in these kinds of defamation proceedings. It is now common in the UK for the courts to determine the meaning of the statement at a preliminary hearing when there is a dispute. Significantly, both parties agreed that the words complained of meant that: (i) Mr. Depp had committed physical violence against Ms. Heard; (ii) this had caused her to suffer significant injury; and (iii) on occasion it caused her to fear for her life (See -). Therefore, there was no need for a preliminary hearing on this issue.
In direct contrast, juries still have a crucial role in libel and slander claims in the United States. Juries resolve various issues, such as the meaning of the words, whether the defendant had acted with the appropriate degree of fault, etc.
The result is that different pillars of the justice system ultimately decide the case in the United States and the United Kingdom. Nicol J gave an array of reasons and rationale behind his decision, outlining every allegation and his findings on them. On the other hand, juries simply return a yes or no answer in which one party emerges victorious.
However, there are certain procedural barriers in the United States which may see the case resolved without the need for a trial or a jury. Firstly, there is the FRCP 12(b)(6) “motion to dismiss.” This motion enables defendants to try and dispose of some or all of the plaintiff’s claim at the beginning of a case. Heard did file a motion to dismiss, which was dismissed by Judge Bruce White in March this year. The judge found that three of the four comments alleged by Depp to be defamatory were actionable.
The second route is via “summary judgement” which is governed by Rule 56 of the FRCP. Either party can make an application for summary judgment at any point pre-trial. Should a party be successful in making the application, the proceedings would come to an end. However, success depends on the applicant’s ability to prove that there is no genuine dispute as to any material fact, and that the movant is entitled to judgment as a matter of law. Neither Heard nor Depp have made an application for summary judgment. As this case turns on its facts, with major factual disputes between Depp’s and Heard’s version of events, it is highly unlikely any application would be successful. The case appears, therefore, destined for a jury trial.
While it is clear there are significant deviations between their approaches, both the US and UK share principles that make up crucial parts of defamation laws:
- Whether a statement is deemed defamatory is determined from the perspective of the reasonable person;
- Statements which are “substantially true” are not actionable;
- A potentially defamatory statement must have been published to a third party other than the plaintiff; and
- The statements must have caused “serious harm” or carry with it an element of disgrace to the plaintiff’s reputation.
So What Next?
The so-called pro-plaintiff UK defamation laws were not kind to Depp. However, it is evident that the law in the area is straightforward; the case turned primarily on its facts. Nicol J rejected Depp’s case in favour of Heard’s. Depp’s legal team has called the decision “flawed” and “perverse and bewildering” and indicated his intention to appeal the decision. However, the prospects of any appeal do not look promising; Depp will no doubt have hoped for more favourable factual findings to rely upon in the Virginia court.
Regardless of the outcome in the UK, the weight of that decision has little sway in American law. In 2010, the United States passed the so-called “Speech Act.” The statute prohibits US courts from recognizing or enforcing foreign judgments for libel and slander obtained under laws that do not provide as much protection for speech and press as is afforded by the First Amendment. English libel and slander judgements are, therefore, not recognizable nor enforceable in the US given their pro-plaintiff approach.
Therefore, Depp’s libel defeat in the UK and, more importantly, the findings of physical violence allegedly perpetrated by him, are not binding on the Virginia court. Nevertheless, these findings, along with Nicol J’s 585-paragraph judgment, are readily accessible to the public. Furthermore, the conclusion that Depp is a “wife beater” has already begun to have an impact in the zeitgeist.
There is also no doubt that Heard will seek to rely on these findings, even if only as a persuasive precedent.
The Depp and Heard story appears destined to go on. Depp’s defeat in the UK courts is only a minor skirmish in what has been a war fought through social media and fan bases as much as through the courts. However, Depp can still be successful in his claim against Heard—the Speech Act makes that clear. While the findings of violence doubtlessly do not help Depp’s case, it is for a jury to decide what weight, if any, to place on those findings.
A claim in the US will be more of an uphill battle for Depp, as the US values freedom of expression more than the UK. It will be up to Depp to prove that the statements made by Heard in The Washington Post piece were false or that she had been negligent or reckless regarding the falsity of her statements, a requirement that he did not have to prove in the UK.
While the questions in law change depending on the side of the Atlantic in which the case is heard, the issues remain the same. Violence and reputation are at the forefront of this case and—when you add a jury to the mix—anything could happen.
Ben Ramsey was called to the UK bar in 2018 having previously achieved a first-class degree at Northumbria University. He currently works as a County Court advocate.