On Monday 2 November 2020, the High Court delivered its highly awaited judgment in the case of Depp v News Group Newspapers and anor  EWHC 2911 (QB).
In what some have called the ‘trial of the century’, the actor Johnny Depp brought a libel claim over an article published online by the Sun newspaper, which labelled him a “wife beater”. In a lengthy 585 paragraph ruling, Mr Justice Nicol dismissed Mr Depp’s claim and held that allegations that the actor was a ‘wife beater’ were substantially true and therefore, his claim for libel had failed.
Here we take a look at the judgment and what, if any, the impact will be on future libel cases of this nature.
The Claimant is Johnny Depp, the notable Hollywood award-winning actor and star of hit franchises such as Pirates of the Caribbean and more recently, the Harry Potter spinoff Fantastic Beasts and Where to Find them. It was the latter film franchise and Mr Depp’s casting as the film’s antagonist that became the subject of contention, when on 27 April 2018, an article was published on the Sun Newspaper’s website with the headline ’ONE POTTY: How can JK Rowling be “genuinely happy” casting wife beater Johnny Depp in the new Fantastic Beasts film?’. The article was written by Dan Wootton, currently the executive editor of the Sun Newspaper.
The article made allegations that Mr Depp had been violent towards his ex-wife Amber Heard on several occasions during their relationship. The article’s headline was amended the day after publication to remove the term ‘wife beater’, although the article’s content remained otherwise the same. A copy of the original article, as published, can be found in the annex to Mr Justice Nicol’s judgment.
Following publication, Mr Depp initiated legal proceedings against both the Sun’s publisher, News Group Newspapers (‘NGN’) and Mr Wootton. The Claimant’s case was that the article made serious defamatory allegations that bore the meaning that he was guilty of serious domestic violence against his ex-wife. Although the parties disagreed in some respects about meaning, the Judge recognised it was common ground that the natural and ordinary meaning of the words was that “(i) the Claimant had committed physical violence against Ms Heard; (ii) this had caused her to suffer significant injury; and (iii) on occasion it caused Ms Heard to fear for her life” [80 – 81].
In a libel claim, a publication is only defamatory where it has caused, or is likely to cause, serious harm to the Claimant’s reputation (s.1, The Defamation Act 2013). The burden to demonstrate this lies with the Claimant [75 – 76].
To defend the case, the Defendants submitted evidence of 14 incidents alleging the abuse Ms Heard had suffered during her relationship with Mr Depp, in addition to further details set out in a confidential annex [47 – 74]. This formed their defence of truth (s.2 of the Defamation Act 2013), which required the Defendants to show that the ‘imputation conveyed’ by the article was ‘substantially true’ . If a truth defence is successful, it acts as a complete defence to a libel claim.
As a claim for libel is brought in civil proceedings, the standard of proof that defendants are required to meet is the balance of probabilities i.e. is it more probable than not that the article was substantially true in the meaning that it bore? . In this case, the Defendants had to show that it was more likely than not that the Claimant did what the article alleged i.e. committed physical violence against his wife, causing significant injury and for her to fear for her life. In the common law, two standards of proof are recognised; the balance of probabilities and beyond a reasonable doubt. The latter applies in criminal cases and although the balance of probabilities is the single standard of proof in civil proceedings, the evidence required to satisfy it varies according to the circumstances. Where the allegation is one of ‘serious criminality’, the strength and quality of the evidence is highly relevant [42 – 43].
Readers will no doubt recall the substantial coverage that took place during the summer months across two courtrooms in the Royal Courts of Justice as a result of Covid-19 restrictions), where evidence was heard over the course of 14 days with a further two days of closing submissions. Both Mr Depp and Ms Heard gave evidence during that period, along with those who surrounded the once married couple at the relevant time the incidents took place. Ms Heard was the Defendants’ key witness given it was her account that was likely to determine the outcome of the case. Neither Mr Wootton nor any other journalist at the Sun gave evidence in the case.
There were two central issues in the trial as there are in any libel dispute of this kind: the meaning of the articles complained of and whether the imputation conveyed by them was true in substance. In relation to the first matter, although there was an agreement in relation to the meaning as set out above, the Claimant argued that the article also suggested that he had been subjected to a continuing restraining order and due to his violence towards Ms Heard, was not fit to work in the film industry. However, Mr Justice Nicol rejected those elements and held that the meaning of the words complained of was as contended for by the Defendants . As to the wealth of evidence proffered by the Defendants, there was general consensus that the level of detail was vast and this required the Judge to undertake a forensic review of each of the allegations before considering his finding for each individual allegation in a ‘more global sense’ [107 – 108]. After a comprehensive analysis of the evidence [206 – 573] Mr Justice Nicol found that 12 of the 14 incidents of assault were proven and had met his prior observations about the evidence being necessary to satisfy the standard of proof when serious allegations are in issue. While not all of the allegations of violence by Mr Depp towards Ms Heard were proven, the Judge concluded that the Defendants had established that the words complained of, in their natural and ordinary meaning, were substantially true .
In making his finding, Mr Justice Nicol rejected the Claimant’s submissions that he was at a disadvantage in the case because Ms Heard was not a party to the proceedings and therefore, was not under the same disclosure obligations as he was . The Judge also rejected the Claimant’s narrative that Mr Heard was a ‘nothing more than a gold-digger’, recognizing, amongst other evidence, that her donation of her $ 7 million to charity did not match with the Claimant’s characterisation of his ex-wife . Additionally, the Judge commented on the Claimant’s true feelings towards Ms Heard, citing an email Mr Depp had sent in August where he spoke of having “no mercy, no fear and not an ounce of emotion or what I once thought was love for this gold digging, low level, dime a dozen, mushy, pointless dangling overused flappy fish market … I can only hope that karma kicks in and takes the gift of breath from her … Sorry man … But NOW I will stop at nothing!!!” .
As the Defendants were found to have established the words complained of, in their natural and ordinary meaning, were substantially true, Mr Depp’s claim did not succeed. Although the Judge recognised Mr Depp had proven the necessary elements of his libel claim, the success of the truth defence constituted a complete defence .
This case was dubbed the ‘trial of the century’ and indeed, it captured the attention of the public, making headlines around the world during a global pandemic. It was a case that dominated social media over the summer (special mention to journalist Nick Wallis, who covered the trial via his twitter account) with many users freely passing comment as the private lives of two individuals were discussed openly in a public forum.
This case had all the facets of a Hollywood movie with the defendants taking a significant risk by relying solely on a s.2 truth defence, as this required them to prove the fundamental claim that Mr Depp was a wife beater. Furthermore, we saw both parties instruct criminal silks, alongside their specialist media counsel, although as proceedings unfolded we saw their sole purpose was cross-examining Mr Depp and Ms Heard. We can only infer the parties’ motives for this tactic but given the requirement for evidence to satisfy the standard of proof when serious allegations are in issue, a criminal silk’s experience in cross-examination may have been a factor.
Despite all the attention, this was by no means a landmark case insomuch as there has been no development of any legal principles. Mr Depp brought a libel claim where the defendant newspaper publisher relied on a truth defence. The truth defence succeeded, so Mr Depp’s claim failed. There is nothing extraordinary about the outcome and if anything, the judgment serves as a reminder that English Libel laws cannot be used to restrict free speech.
On the face of it, the decision is likely to give newspaper editors more confidence in publishing material that makes serious allegations of domestic abuse against individuals, but this should be tempered with caution; the success of a s.2 truth defence will always turn on the facts of each case and the evidence available to the defendants. In this case, the Defendants were able to rely Ms Heard’s evidence of the abuse she endured in her marriage to Mr Depp. Without Ms Heard’s participation, a s.2 truth defence was unlikely to succeed. Not all victims of domestic abuse will be so willing to have their private lives forensically examined in a courtroom by lawyers and available to be reported in the press and on social media. In such circumstances, a defendant may need to consider more technical defences, such as a s.4 public interest defence or the common law defence of qualified privilege. There are practical issues as well, for instance, the costs of running a s.2 truth defence are likely to be much higher than running s.4 defence however it is no worry for the defendants as Mr Depp now has the burden of paying his opponent’s costs.
What is clear is that Mr Depp’s libel claim falls into an emerging group of libel case law, where claimants have sought legal action on publications containing serious allegations they have committed domestic abuse against their partners (see Stocker v Stocker  UKSC 17; Lachaux v Independent Print Ltd and Evening Standard Ltd  UKSC 2; and Economou v De Freitas  EWCA Civ 2591). Critics argue that complainants are using libel laws to silence both the publisher of those allegations and their victims. Women rights groups and domestic violence charities, such as Women’s Aid, Refuge and the Centre for Women’s Justice, have also welcomed the decision, signalling that it will serve as a warning to claimants who try to silence their complainants and that survivors of domestic abuse should be listened to and should be heard, although it should be said that libel claims now rarely reach the trial stage of proceedings.
What happens to Mr Depp now? It appears likely the judgment will end his career in Hollywood. He had reportedly been ‘dropped’ by Disney from the commercially successful Pirates of the Caribbean franchise following the defendant’s publication but before the outcome of his libel claim was decided. Additionally, in a statement published on social media, Mr Depp confirmed Warner Bros had asked him to resign from the forthcoming Fantastic Beast franchise, which he confirmed he had agreed to and his replacement has now been confirmed. Despite losing the case, Mr Depp still appears to have the support of his large fanbase, who have publicly defended their idol online and turned their dissent to both the Defendant’s solicitors and the Judge, making uncomplimentary remarks about both. For Mr Justice Nicol, action has been taken going so far as to take the alarming and disturbing step of creating a petition demanding he is ‘fired’. Despite the Court’s findings, Ms Heard continues to receive vitriol and abuse with calls for him to be sacked from future projects.
There are also separate libel proceedings in the United States that Mr Depp is pursuing. In that case, he has chosen to take direct action against Ms Heard for an Op-Ed she wrote in 2018 that was published in the Washington Post. Both Mr Depp and his solicitors signalled that he intends to appeal Mr Justice Nicol’s decision, although at this stage the grounds are not known. Mr Justice Nicol has refused permission in the first instance and it has since been reported that Mr Depp has now applied directly to the Court of Appeal to overturn the High Court’s ruling, in the meanwhile making a payment on account of the Defendant’s costs.
For now, the case remains good law but perhaps there is another chapter in the case of Depp v News Group Newspapers.
UPDATE: On 18 March 2021, the Court of Appeal considered an application by Mr Depp for permission to present further evidence, and a permission to appeal Mr Justice Nicol’s judgment of 2 November 2020. In a judgment handed down on 25 March 2021, the Court of Appeal (Lord Justice Underhill and Lord Justice Dingemans) dismissed both applications, concluding that the appeal has no real prospect of success and there is no other compelling reason for it to be heard. The judgment can be found on Judiciary UK here.